This is an appeal against the Ruling of the High Court of Lagos State, Ikeja
Division delivered on the 25th October 2005 dismissing the Claimant case against
the Defendant in its entirely on the ground that the Writ of Summons and statement
of claim of the Appellant disclosed no cause of action against the Defendant.
By a writ of summons issued on the 29th of April 2005 by the High Court of
Lagos State the claimant (hereinafter referred to as the Appellant) sought against
the Defendant (now the Respondent) as endorsed in the writ and the statement of
claim dated 27th April 2005 the following reliefs:
i. an ejection and or removal of the Defendants from

premises being the (New) VIP lounge of the General Aviation
Terminal, Murtala Mohammed Airport, Ikeja Lagos State and
subject of Concession Agreement dated 29th March 2004 and
made between Federal Airports authority of Nigeria and the Claimant.
ii. an order of injunction restraining the defendants from carrying on the
activities of restaurants, canteens, res areas, entertainment services
and the likes on premises being the (New) VIP lounge of the General
Aviation Terminal, Murtala Mohammed Airport, Ikeja, Lagos State
for the duration of the concession and contained in the Concession
Agreement dated 29th March 2004 and made between Federal airports
authority of Nigeria and the Claimant.
iii. The sum of NGN 5,000.000.00 (Five Million Naira Only) being
general damages suffered by the Claimant for the acts of trespass and
continuing trespass perpetuated by the Defendants
Unlawful entry unto premises covered by Claimant’s concession as
contained in Concession agreement between her and the Federal
Airports Authority of Nigeria.
The Appellant in the interim filed a motion exparte dated 27 April 2005.
“An Order that the Defendants, their agents, workers, privies and or
any person whatsoever acting through them be restrained from taking
or procuring any other person(s) to take, any step or further step in
facilitating and or carrying on and or operating the business of
concessionaire, restaurateurs, restaurant services and the likes and or
relating thereto, on the premises being the (New) VIP lounge, General
Aviation Terminal, Murtala Mohammed Airport Ikeja, Lagos State
and subject of concession granted Claimant by the Federal Airports
Authority of Nigeria vide Concession Agreement dated 29th March
2004, until the hearing and determination of the Motion on Notice or
further Order.
And Order granting leave to the Claimant to serve the enrolled Order
of Interim Injunction (if granted) together with the Writ Summons,
Statement of Claim and Motion on Notice for Interlocutory
Injunction, on the Defendants at the given address contained in
processes herein.
AND FOR SUCH FURTHER or other Orders as this Honourable
Court may deem fit to make in the circumstance.”

On the 5 of May 2005 the court below granted the reliefs sought in the exparte
motion. Pleadings were filed and exchanged. The Respondent by Motion on
Notice dated 25 of May 2005 prayed for an Order setting aside the order of the
court made on 19th of May 2005 wherein the exparte order of interim injunction
earlier made on the 5th day of May 2005 was extended by 7 days with effect from
19th day of May 2005 and the lower court dismissed the application to set aside.
Thereafter the Respondent filed a motion on Notice on the 14 of June 2005
seeking for the following orders:
1. An order striking out this suit on the ground that proper parties are not
before the court as a result of which the court lacks jurisdiction to entertain
this suit.
ALTERNATIVELY;
2. An order striking out and or dismissing this as it discloses no cause of action
against the Defendants.
ALTERNATIVELY;
3. An order for extension of time within which the Defendants can seek for an
order discharging and or setting aside the order of interim injunction granted
by this court on the 5th of May, 2005 which have been extended thrice.
ALTERNATIVELY;
4. An order discharging and or setting aside the order of interim injunction
granted on the 5th of May, 2005 which have been extended thrice.
5. And for such further order and other orders as this Honourable Court may
deem fit to make in the circumstances of this case.
The Appellant on the 17th of June 2005 filed a notice of Preliminary Objection
to the Respondents Motion of 14th June 2005. The lower court heard the two
applications together. The learned trial Judge in a considered ruling on the 25th
Octorber 2005 in respect of the objection held:
“I hereby hold that the notice of preliminary objection as
it relates to the reliefs in leg 2 of the application under
consideration is unsustainable. It is unmeritorious. It is
hereby dismissed.”

And on the motion on Notice the lower court held:
“In the circumstances, the court hereby hold that the
relief in leg of the said application had merit and same is
hereby granted. The court also holds that the writ of
summons and statement of claim herein disclose no
cause of action against the Defendants with respect to the
concession premises in Exhibit A01 attached to the
Affidavit in support of the motion exparte granted on the
5th of May 2005 as such as no action in trespass against
the Defendants based on the writ of summons and
statement of claim is sustainable. The court hereby
dismissed the substantive case herein against the
Defendants/applicants in its entirety. In addition, and for
the avoidance of any doubt, this court hereby revokes or
discharges the order of interim injunction granted on the
5th May 2005 in favour of the claimant against the
Defendants/Applicants for being of no legal consequence
any more.”
The Appellant dissatisfied with the decision of the lower court appealed to this
court by a notice of appeal dated 8 of November 2005 containing four grounds of
appeal as setout of pages 399 – 405 of the record of appeal. In compliance with
the rules of this court the parties duly filed and exchanged their respective briefs of
argument.
At the hearing of the appeal on 16/2/09. The learned counsel for the Respondent
Mr. J. Odubela stated that he incorporated his notice of preliminary objection in his
Brief of Argument on pages 3 to 5 of the Respondent Brief of Argument dated 13th
March 2007 filed same date, he urged the court to uphold the objection and strike
out issues 1, 2, & 3, Mr. Edu in his response on his reply brief cited OTAUR V.
IDRIS 1999 6 N.W.L.R. Pt. 606 page 330.
Mr. Edu adopted the Appellants brief filed on 16/10/06 and the Reply Brief filed
on 26/6/08 as the argument of the Appellant. Mr. Odubela adopted the

Respondents brief dated and filed 13th March 2007 deemed filed 26/06/08 pursuant
to an application for extension of time and a deeming order.
Mr. Edu in the Appellant’s brief distilled 6 issues for determination arising from
the 4 grounds of appeal:
This issues reads as follows:
“
1. Whether the Defendants having not raised or
contained the issue of identity and or description of
the Concession in their Motion on Notice of 14th June
2005, it was proper for the lower court to on its own
raise the issue and strike out the Writ of summons and
the Statement of Claim on the ground that the suit
discloses no cause of action against the Defendant the
Claimant having described the premises subject of the
Concession as the (New) VIP Lounge of the General
Aviation Terminal (GAT) of the Murtala Mohammed
International Airport, Ikeja, Lagos whereas her
Concession Agreement dealt with the VIP Lounge of
the General Aviation Terminal (GAT) Murtala
Mohammed International Airport, Ikeja, Lagos.
2. Whether or not the lower court was entitled to hold
that the Appellant’s writ of Summons and Statement
of Claim did not disclose a reasonable cause of action
when the same court had earlier in its Ruling of 8th
June 2005 (not appealed against) on a self same or
similar Application by the Respondents held that the
Appellant’s action was one in trespass.
3. Whether the lower court in its Ruling of 25th October
2005 striking out the Writ of Summons and the
Statement of Claim on the ground that the suit
discloses no cause of action for by the Defendants in
their Motion on Notice of 14th June 2005.
4. Whether the lower court interpreted correctly the
provisions of Orders 22 & 25 of the High Court of
Lagos State (Civil Procedure) Rules 2004 when it
held that the said provisions had no application
considering the Prayers especially Prayers 1 & 2 and

contained in Defendants’ Motion On Notice of 14th
June 2005.
5. Whether the lower court was right in holding that the
failure of the Appellant to pead other documents other
than the Concession Agreement dated 29th March
2004 which the Appellant pleaded in compliance with
Order 3 Rule 2 (1) (d) of the High Court of Lagos
State (Civil Procedure) rules 2004, amounted to
withholding of evidence and gross abuse of court
process.
6. Whether the costs in the sum on NGN 150,000.00
(One Hundred and Fifty Thousand Naira) Only
granted by the lower court against the Claimant are
not in the nature excessive punitive and arbitrary
when the same was not asked for by the Defendants?”
The Respondent counsel Mr. Odubela raised a Notice of Preliminary objection on
the issues formulated by the Appellant as being more than the Grounds of Appeal
raised in the notice of appeal and proceeded to distill 4 issues from the Grounds of
Appeal. I will consider the notice of objection first. Mr. Odubela submitted that it
is trite law that an Appellant cannot have more issues that the number of the
Grounds of Appeal filed. He cited the case of DANJUMA V. LANUMA 2004 44
WRN 135 at 152. It is his submission that Appellant formulating 6 issues for
determination from four grounds of Appeal is bad in law. He cited the following
cases in support. SEVEN UP BOTTLING CO. LTD V. ADEWALE (2004) 7
WRN 158-159 LINES 40-45, AGU V. IKEWIBE 1991 3 NWLR PT. 180
PAGE 485 at 401. ANNON LODGE HOTELS LTD. V. MERCHANTILE
BANK 1993 3 NWLR (PT.284) PG 721 at 729 para. e – g, ADELAJA V.
FANOIKI 1990 2 NWLR PT. 131 page 137. He urged the court to uphold the
objection and strike out issue 1, issue 2 and issue 3 as formulated by the Appellant.
Mr. Edu in his reply brief submits that the superior courts in all its decisions on the
point never applied any sanction of the kind being canvassed by the Respondents.

He cited ALHAI OTARU & SON V. IDRIS AND ANOTHER (1999) 6 NWLR
(PT. 606) PAGE 330 SC OBIORA V. OSELE 1989 1 NWLR PT. 279
AFROTEC TECHNICAL SERVICES (NIG) LTD. V. M.A. & SONS LTD.
AND ANOTHER.2002 15 NWLR PT 692 730 AT 775. It is his submission that
the courts in enjoining parties against proliferation of issues have held that non
compliance with observable practice in brief writing will not render the brief bad
and unworthy of consideration nor will it defeat the Ground of Appeal in limine.
This court and the Apex court have severally frowned at the proliferation of issues
in briefs of argument. See – CHEVRON NIG. LTD. V. ONWUGBELU &
OTHER 1996 3 NWLR (PT 437) 404 the authorities cited by the learned counsels
on the principle on proliferation have all frowned at inelegant Briefs. The
acceptable practice is that issues formulated in a Brief of Argument need not
coincide with the number of Grounds of Appeal filed, but more than one issue
cannot be tied to one ground of appeal as this amounts to su-plussage. In same
decided cases the extra issue have been struck out. See ANYAGADE V. O.A.U
TN C.M.B. 2001 7 NWLR PT. 711 CA 187. In some cases the Apex Court have
frowned at the inelegant Brief describing same as unacceptable but still proceeded
to holding that it is still a Brief and in the quest to do substantial justice to the
parties will overlook such improper Briefs see the decision of the Supreme Court
in ALHAJI OTARU & SONS LTD. V. IDRIS 1999 6 NWLR PT 606, SC 330
per Onu JSC held:
“Thus, in the instant case, the submission of fifteen issues where three
as postulated by the respondents would have been enough to dispose
of the entire appeal, should have been a more prudent course of action
to adopt. Be that as it may, since this court has before now taken the
stance that a bad, faulty or inelegant brief or one which is procedural
irregular though may attract some adverse comments from the
appellate court, is still a brief and such shortcomings displayed e.g. in
poorly written briefs are liable to be over looked in this court’s quest

to do substantial justice to the parties before it. See Obiora v. Osere
(1989) NWLR (Pt 97) 279 at 300; Ojikutu v. Odeh (1954) WACA
640 at 641; Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 453;
Onyekwe v. The State (1988) 1 NWLR (Pt. 72) 565 at 571 and
Makanjuola v. balogun (1989) 3 NWLR (Pt. 108) 192 at 205.
It is obvious that the courts frown at the proliferation of issues but overlook same
in certain circumstances. What is paramount is to critically look at the nature of
the issues distilled whether they are tied to the grounds of appeal and faulty only
on the basis of repetition. Once the issues any confusing and uncomprehensible
but not isolated from the grounds of appeal it should not be struck out.
Nevertheless as such practice of distilling more than one issue from one ground of
appeal should be discouraged as it leads to clumsy briefs and lack of precision on
what the real issues arising from the grounds of appeal entail. In the instance case
the Appellant’s counsel has ungainly distilled 6 issues from four grounds of appeal
all lumped together and this is improper, very inelegant. However I observe that
issues 1, 2, 3 are distilled from Ground 1. Issue 1 can encompasses issue 2 and 3
as phrased. Issues 2 and 3 are identical. Under issue one Arguments therein will
be considered. In effect the Appellant will be left with four issues for
determination from the four grounds of Appeal. The learned counsel to the
Respondent distilled four issues which reads as follows:
“The first issue for determination arising from the
Ground 1 is whether the learned trial Court suo muto
raised any fresh issue without directing the Counsel on
both sides to address the Court on it?
The 2nd issue for determination arising from the Ground 2
is whether the Respondents’ application upon which the
learned trial Court dismissed the Appellant’s case
amounted to a demurer?

The third issue for determination arising from the Ground
3 is whether under the provisions of High Court of Lagos
State (Civil Procedure) Rules, 2004, the Appellant is not
bound to disclose and list all the documents it wishes to
rely upon at the trial of the suit?
The fourth issue for determination arising from the
Ground 4 is whether the trial Court was not right to have
awarded a cost of one hundred and fifty thousand naira
(N150,000.00) in favour of the Respondents in the spirit
of the provisions of High Court of Lagos State (Civil
procedure) Rules, 2004?
The fourth issue for determination arising from the
Ground 4 is whether the trial Court was not right to have
awarded a cost of one hundred and fifty thousand naira
(N150,000.00) in favour of the Respondents in the spirit
of the provisions of High Court of Lagos State (Civil
Procedure) Rules, 2004?”
I have critically looked at the issues formulated by the Appellant and Respondent
brief that I will rely on the issues formulated by the Appellant in the determination
of this appeal. Briefly the facts as deduced that the claimant/Appellant carries on
the business of concessionaries restaurateurs and other related services. The 1st
Defendant/Respondent a limited liability comply also carries on the business of
restaurateurs. The Appellant claims he was granted concession right for 5 years
commencing 1st November 2003 over the (New) VIP lounge of the General
Aviation Terminal vide concession agreement dated 29th March 2004 between
Federal Airports Authority of Nigeria and herself the Appellant averred he
undertook the furnishings of the (New) VIP lounge of the General Aviation
Terminal Murtala Mohammed Airport, Ikeja, Lagos when the Federal Airports
Authority of Nigeria commence renovation and reconstruction works on the
premises. It is stated that Claimant recruited staff to carry on the operation of the

concession. Appellant pleaded that on 23 April 2005 she encountered the
Respondents entering the premises, the subject of this concession with furnishing
articles and utensils with a view to carrying on various acts of commercial
activities, which he believes are in the nature of restaurants canteen she averred.
All efforts made to stop the acts of encroachment failed. Appellant’a contention is
that the respondents entry into the (New) VIP Lounge of the General Aviation
Terminal Murtala Mohammed Airport, Ikeja Lagos the subject of the concession
agreement amount to trespass. The Respondents contention in his pleading is that
on invitation for tender by the Federal Airports Authority of Nigeria in respect of
concession as per New VIP Lounge he was written by the Federal Airport of
Nigeria to move to the New VIP Lounge of the Airport and that the New VIP
Lounge is different from the Old VIP Lounge. Their averment is that the claimants
has never operated as concessionaire at the new VIP Lounge and was never
granted concession to run the new VIP Lounge. That the Respondents never
trespassed on the Appellant’s premises as the Appellant’s were never in possession
of the new VIP Lounge. The Appellants issues one, two and three will be
considered together. All have been distilled from Ground one. Issues 2 and 3 are
identical as it relates to whether the lower court was entitled to hold that the
statement of claim did not disclose a reasonable cause of action.
It is the submission of learned counsel for the Appellant that the Respondents
Motion on Notice of 14 June 2005 in its grounds in support of the prayers did not
specifically or by implication raise any issue of fact on law relating to any
difference in the identity and or description of the premises subject of the
concession. It is his contention that the Respondents were represented by counsel
in the proceedings before the lower court and neither protested raised nor
canvassed the issue of sufficiency of the identity and or description of the premises
subject of the concession. Mr. Edu contention is that the lower court by raising the

issue of the identity and or description of premises subject of the concession acted
contrary to the established principles of law and the avoidance of surprise. It is his
further submission that she was never given an opportunity to be heard on the issue
of identity and or description of the concession premises on the 5th of October 2005
when the Respondent’s Motion of Notice was argued and the lower court by its
own raised the issue and delivered Ruling and thus Misconducted itself. Learned
counsel to the Respondent contends that the trial Judge did not raise the issue suo
muto. He referred to the Ruling of the Court at pages 384 to 398 of the Record of
Appeal. It is his submission that the trial court decided based on the affidavit
evidence provided which shows the Respondents had the New VIP lounge
concession and not the Appellants is claiming. He contents that what was decided
by the trial court was not identity of the premises subject of the concession as
alleged but the lack of cause of action of the Appellant’s claim before the trial
court. He submits that the Appellant has no nexus with the Respondents as they
have not trespassed on any of the right of the Appellant. The Critical question
arising under the issue is whether the learned trial Judge raised suo motu an issue
not raised by the parties and without hearing counsels on that point ruled that
Exhibit AO1 relates to the VIP lounge and not the New VIP lounge. The learned
trial Judge in considering the Motion on Notice dated 14 of June 2005 dwelled
extensively on the Alternative relief on the motion papers which is on whether
there is a cause of action disclosed by the Appellant. The learned counsel that
moved the Respondents application dated 14 June 2005 in his written address,
particularly at pages 326 – 328 of the record of Appeal submitted that the
statement of claim did not disclose any cause of action against the Defendant as
there is no contract between the Appellant and the Respondents. That there is also
no privily of contract between the claimant and Defendant and that claimant is not
in possession and cannot maintain an action for trespass. The learned counsel for

the claimant in the lower court responding stated that on the face of her writ of
summons and statement of claim her action is in trespass and not one for
interpretation or Construction of the agreement between the claimant and the
Federal Airport Authority of Nigeria as evidenced by Concession Agreement. He
submitted that the status and rights under the concession agreement is not an issue
in this suit. In general the forgoing is the summary of key issues addressed by the
two learned counsels at the lower court on issue of cause of action in respect of the
motion on Notice filed 14 of July 2005. Having critically gone through the written
submissions of both learned counsels I agree with Mr. Edu that the parties did not
address the lower court on the issue of the description nor the identity of the
premises for which concession have been made. None of the counsels contended
on whether the VIP Lounge is different from the New VIP Lounge on the relief
sought. The learned trial Judge construed Exhibit AO1 which she referred to as
exhibited in the exparte motion. The crux of the Respondent’s submission of issue
of cause of action is that there is no contract between the two parties main. It is the
plaintiffs statement of claim that is the determinant factor of whether there is a
cause of action. The reason is obvious. The term cause of action had been defined
in a catalogue of decided cases as a fact or situation arising from those facts form
which they eminate a right of action for which remedy may be sought. See
WILLIAMS V. WILLIAMS 2008 10 NWLR (PT. 1095) SC 364. In P.N.
UDOH TRADING CO. LTD. 11 2001 5 SC. (Pt 11) 64, the term was defined
thus
“a combination of facts and circumstances giving rise to the right to
file a claim in court for remedy. It includes all things which are
necessary to give a right of action and every material fact which has to
be proved to entitle the Plaintiff to succeed”.

It is the combination of facts that gives a Plaintiff a right to sue and seek remedy
against a Defendant. The phrase right of action consists of the facts or
agglomeration of facts which enable a person to bring a complaint before the court.
See – ADIGUN V. A.G. OYO STATE 1987 1 NWLR PT 53 678, A.G. (FED)
V. SODE 1989 1 NWLR PT 128 SC 500. The Respondents counsel raised the
issue of whether the statement of claim has disclosed any contract between the
parties nor any nexus in relation to the claim before the court. In other words
looking at the facts averred to, in the statement of claim whether the claimant has
disclosed a prima facie right of action against them. At that stage wherein
evidence is yet to be lead all that is required of the learned trial Judge is to look at
the statement of claim to ascertain if ex facie the claimant has pleaded facts stating
he has a right against the Defendant in respect of the parties subject matter
described by him as New VIP Lounge. Once this is disclosed that is sufficient an
adequate for proceed to trial. To go into the merits of the case making findings of
fact when evidence had not been lead and witness testify is wrong. The learned
trial Judge exceeded her boundary at that point of glossary view of the Statement
of claim when she traveled into the terrain of construction of the document,
Exhibit AO1exhibited in the affidavit in support of the motion exparte in relation
to the reliefs sought. It is obvious from the lower court ruling that not only were
findings made but evidence was also considered. Exhibit AO1 is a document
pleaded to be relied on. It is evident its probative value cannot be considered at
that preliminary stage when facts are involved. The lower court found that the
description of the premises or the concession document is at variance with the
relief sought. This again is evaluation. Non of the parties point raised the point on
the distinction made by court between New VIP lounge and VIP lounge
simpliciter. The lower court was wrong to have considered the plaintiffs claim on
the merit without evidence led. The trial Judge erred to raise issue of the premises

not being the same when parties did not raise same and he do not invite them to
address court on some point. For purpose of emphasis I refer to some of the
paragraphs of the Ruling on pages 364 to 366 of the Record of Appeal, where the
learned trial Judge had this to say:
“It is not stated specifically or implied in the said Exhibit
AO1 that FAAN agreed with the claimant to run the new
VIP lounge at the General Aviation Terminal of the
Murtala Mohammed International Airport which it is
now laying claim of trespass against the Defendants
herein. What this means is that Exhibit AO1 can only
strictly relate to the VIP lounge of the General Aviation
Terminal of the Murtala Mohammed International
Airport, Ikeja and not the New VIP lounge of General
Aviation Terminal of the Murtala Mohammed
International Airport Ikeja…..”
On page 365 she stated:
“From the available Affidavit evidence before the court it is
uncontroverted that the claimant is claiming for trespass against
the Defendant for their occupation of the New VIP lounge,
which is not part of Exhibit AO1 it is relying on………..”
The duty of the court is to consider the case before it in the light of the partners
complaints and submissions. See OJO – OSAGIE V. ADONRI 1994 6 NWLR
PT 348 SC 131
It is not open to a court to raise an issue that parties have not raised by once it is
raised and parties did not have opportunity to respond same will amount to
miscarriage of justice.
I agree with the learned counsel to the Appellant that if a court most raised any
issue suo motu, it must draw the attention of the parties to it and give them the
opportunity of addressing it on such issue. See ONIAH V. ONYIA 1989 1
NWLR PT. 99 514.

The learned trial Judge was wrong when she proceeded to raise the issue of
distinction between the VIP Lounge as stated in exhibit AO1 and New VIP lounge
claimed in the statement of claim.
The parties opportunity to be heard and answered same without giving it behoves
on a court once an issue is raised suo motu by the court to draw attention of the
parties and hear them. The lower court was wrong to base its decision on lack of
cause of action on his interpretation of the concession document suo motu,
conclusion that Appellant had withheld evidence when trial had not commenced
which are issues neither raised not testified in evidence by the parties. See
OCHONMA V. UNOSI 1965 NMLR 321 SC. A decision on whether there exist
any cause of action at the stage of pre-evidence limits the trial Judge to the facts as
presented not to draw inference from facts or making any finding of fact in the
absence of support of evidence lead in support of the pleadings. Learned counsel
for the Appellant referred to the Ruling of 8 June 2005 wherein the trial Judge held
that the Appellants action was one in trespass and contends the lower court cannot
now say it discloses no cause of action and that there is no appeal against the ruling
as the court became funtus officio. The issue of whether there exist a cause of
action or not can be distilled from the statement of claim filed by the claimant. A
statement on the nature of the action. I have critically looked at the statement of
claim ex facie filed by the Appellant and it does in paragraph disclose the averment
by the claimant averred that he is a concessionaire of the New VIP lounge and in
paragraph 10 of the pleading claimed averred that the Defendants entry into the
premises being the new VIP lounge amounts to trespass. It is his further averment
that the Defendant act of moving in articles and utensils in the premises covered by
his concession, he has tried to stop without success. By this averments the plaintiff
has averred to a set of facts on his right to the New VIP lounge and that Defendant
is in possession. This is sufficient disclosure of cause of action. Learned trial

Judge erred when he held otherwise. The lower court should not have dismissed
the substantive case in it’s entirely.
In respect of the interim injunction made on 5th May 2005 the exparte order
granted by its nature is not permanent it is interim. I have no reason to interfere
with the order as regards the interim injunction. When an interlocutory injunction
was filed but not moved.
In the circumstance Ground one of the Notice of Appeal succeeds and
I find issue one in favour of the appellant.
Under issue 2 whether the lower court interpreted correctly the provisions of
Orders 22 and 25 of the High Court of Lagos State (Civil Procedure) Rules 2004
when it held that the said provisions had no application in considering the prayers
especially prayers 1 and 2 and contained in Defendants motion on Notice of 14
June 2005. Mr. Edu learned counsel for the Respondent submitted that from the
provisions of Order 22 a party who desires to raise a point of law that may dispose
of the whole or part of the proceedings must as a condition precedent file and
contain such point of law in here pleadings and the court is enjoined to dispose of
such matter before or at the trial. It is his contention that the Respondent’s
Statement of Defence does not contain any objection or any point of law raised.
The Appellant raised an objection to Reliefs 1 and 2 of the Motion on Notice filed
by Respondent on grounds that Demurer. Proceedings have been prohibited by the
rules and that arguments proffered by Respondent without raising the point of law
in his pleading was tantamount to Demurer proceeding. He submitted the
provisions of Orders 22 and 25 of the Rules were observed by the lower court more
in breach than in compliance. In response learned counsel to the Respondent
submitted that the motion filed by the Respondent was in order relying on the
decisions of Supreme Court in EGBE V. ALHAI 1990 1 NWLR PT 128 546

ELABANJO V. DAWODU 2006 6 -7 SC PT 24 AT 48 and RTC V. FOB
INVEST PRO LTD 2001 6 NWLR PT 708 PAGE 246.
In respect of Order 25 of the High Court of Lagos rules he submits the rule doesn’t
preclude the court from taking application of the Respondent when Appellant has
not filed Forms 17 and 18 in compliance with Order 25.
For purpose of emphasis I reproduce Order 22 and 25 of the rule 1(2) of the High
Court of Lagos State (Civil Procedure) Rules:
“Order 22.
1. No demurer shall be allowed
2. (1) Any part may by his pleading raise any point of law and the
Judge may dispose of the point so raised before or at the trial.
Order 25
1 (2) Upon application by a claimant under sub-rule 1 above, the
Judge shall cause to be issued to the parties and their Legal
Practitioners (if any) a pre trial conference notice as in Form 17
accompanied by a pre-trial information sheet as in form 18 for the
purposes set out hereunder:
(a) disposal of matters which must or can be dealt with on
interlocutory application;
(b) giving such directions as to the future course of the action as
appear best adapted to secure its just, expeditious and
economical disposal;
(c) promoting amicable settlement of the case or adoption of
alternative dispute resolution.
This words therein are clear and not ambiguous and in construction
should be ascribed its grammatical meaning.
Demurer proceedings have been abolished by the rules of court. However where a
Defendant perceives a point of law of which he is convinced will put an end to a

case he is at liberty to raise it in limine urging the court to strike out or dismiss the
action without his filing a drfence or calling any evidence. See EGBUZIEM V.
EGBUZIEM 2005 4 NWLR PT 916 C.A. 488
Demurer proceedings by its native is only filed against a statement of claim and it
admits and filing of statement of Defence otherwise the Demurer proceedings will
be rendered meaningless. See SHIPPING V. TIGRIS INTERNATIONAL
1999 6 NWLR PT 608 701. Once parties have joined issue as in the instance case
by filing and exchanging pleadings. There is no more place for Demurer. This is
because at that stage the matter should proceed to trial ODIVE V. OBOR 1974 1
ALL NLR (PT 1) 436.
The Respondents raised his objection on several issues by way of
Motion on Notice and not by stating same in the statement of
Defence. This procedure is allowed depending on the nature of the
issue. The Supreme Court in OKAFOR V. A.G. ANAMBRA
STATE 2005 14 NWLR PT. 945 SC 210 had this to say per Belgore
JSC:
“It is in the interest of efficient and timeous dispensation
of matters in court to allow parties to join issues and the
defendant, without directing pleading law but facts can
raise issues that will dispose of the matter without
hearing evidence on mtters like limitation of action
immorally, public policy…”
The Respondents application by way of motion challenging issue of proper parties
cause of action and order for discharge of interim order does not amount to a
demurer. A party who knows there is an issue of law or fact that determines the
issue in limine must come by way of formal motion on Notice if not raised as a
point of law in his pleading. The issue of cause of lack is both of law and fact. It

is the facts presented that will determine whether there is a legal right to proceed to
trial
Prayer 1 on the notice of 14 of July 2005 ex facie seeks a strike out on the grounds
on lack of proper parties and lack of jurisdiction. Relief 2 is on ground the suit
discloses no cause of action against the Defendants the learned trial Judge held that
the Notice of preliminary objection as it relates to the relief in leg 2 of the
application is unsustainable and that the application by way of motion on notice
did not contravene the section 22 rules of court. I must emphasis that the key word
in section 22 is the phrase “point of law”. There is no specific definition of same
the courts having relied on judicial precedent and there are a catalogue of decided
cases on which should be stated in a statement of Defence as a point of law. It is
my respectful view that the Respondent by way of motion on Notice to challenge
the issue of proper parties and cause of action was not improper. The merits of the
application is a different matter but to challenged the issue on facts and law, the
Respondent’s motion is proper. The nature of the issues raised bother on fact and
law and not entirely on law. I therefore have no reason to touch the lower court’s
decision dismissing the objection as it relates to relief 2 on the motion paper.
Learned counsel submission on condition of precedent is not relevant in the
circumstance.
Order 25 Rules 1(2) (a), 3(f) cited reliefs to pre-trial conferences. There is no
doubt that at the pre trial conference by the rules a Judge enters a scheduling order
for filing of motion. See – Order 25 Rule 2(c) and matters on objections and
interlocutory applications will be dealt with. Nevertheless the pre-trial conference
by the provision stipulated in Order 25(1) is initiated by the claimant. There is no
doubt the court can direct claimant issuance of pre-trial conference, absence of
same is irregular because the rule used the word shall which connotes element of
mandatoriness under Rule 3 a claimant failure to so raise allows the Defendant to

do so. The rule used the word “may”. It is discretionary on the part of the learned
counsel for the Defendant. Nevertheless having failed to get through to pre-trial
the Appellant conceded did not raise the non compliance till this stage he cannot be
heard to so argue. This ground two will not succeed and issue two fails. Under
issue 3 and 4. Whether the lower court was right.
“5.0 – Whether the lower court was right in holding that
the failure of the Appellant to plead other documents
other than the Concession Agreement dated 29th March
2004 which the Appellant pleaded in compliance with
Order 3 Rule 2 (1) (d) of the High Court of Lagos State
(Civil Procedure) Rules 2004, amounted to withholding
of evidence and gross abuse of court process.
Mr. Edu’s submission is that the learned trial Judge by demanding from the
appellant in its Ruling for further documents other than the concession agreement
embarked on voyage of discovery outside the pleadings and exhibits before which
is forbidden. He submits that by pleading concession agreement, he put his title to
the concession issue. The trial Judge held that the writ and statement of claim
failed to give sufficient particulars to enable the said agreement be identified by the
court to assist it in holding that my disclose a cause of action and that where it is
founded on contract and the statement of claim fails to give sufficient particulars to
enable the contract be identified. It discloses no cause of action. The learned trial
Judge in considering whether there is cause of action observed that certain
particulars were not disclosed. This particulars were not stated but he still
proceeded to find that claminat has not cause of action. The learned trial Judge at
the stage of consideration is confined to what is presented in the statement of claim
and averments in the affidavit in support of motion that raised absence of cause of
action. To dovetail into absence raises speculation and inferences of what is
missing. Fundamentally at that stage of feeling that the materials before court

were not sufficient the lower court should have asked parties to proceed to trial and
determine the matter on its merit by refusing the prayer for strike out or dismissal.
Learned counsel Edu contended that neither of the parties asked for cost but that
the court awarded cost of N 150,000.00 in favour of Respondent.
I agree with the learned counsel for the Respondent that the party who is in the
right is to be indemnified for the necessary expenses which he has incurred. The
object is to award cost to compensate litigant for his expenses as costs usually
follow events. See – COOMASSIE V. TELL COMM. LTD. 2003 17 NWLR
PT 802 551. Order 49 Rule of the High Court of Lagos State (Civil Procedure)
Rules 2004 provides for the principles to be observed in awarding cost. Cost is at
the discretion of the court. What is paramount is to take into account all
circumstances of the case. I have decided to restate the general principle at this
stage only for purposes of emphasis. Issue of cost is consequential. The ground on
main appeal succeeds.
Before the court not proceeded by a formal objection is of no use to the party
seeking to raise same. In the instance cause the Respondent by motion on notice
has raised the question of cause of action, all the learned trial Judge needed to do
was to examine the statement of claim and ascertain whether any legal right of the
claimant has been raised and whether he seeks a remedy to protect that averred
right. The absence of material document does not arise at this stage.
They learned trial Judge erred in holding that the claim failed to give sufficient
particulars at that stage.

From the totality of the forgoing this appeal succeeds in part. I hereby set aside the
ruling of the lower court made on 25th September 2005 dismissing the Suit in the
lower Court. Inclusive the order on cost. I reinstate the writ of summons and
statement of claim filed and I order that suit be sent back to the Chief Judge High
Court of Justice Lagos State for reassignment to another Judge of the Court. I
assess cost at N30,000.00 in favour of the Appellant.