AGU & ANOR v. NWOGU & ORS

a. An Order of injunction retraining the defendants forthwith (inclusive of the class of persons the said defendants represent in this action) from parading themselves as members of Obowo Progressive Union Sokoto State Branch.
b. An Order of injunction restraining especially the 1st defendant forthwith from parading himself as the Chairman of Obowo Progressive Union Sokoto Branch, the 2nd defendant forthwith from parading himself as the Secretary of the said Association, the 3rd defendant forthwith from parading himself as the Financial Secretary of the said Association, the 4th defendant forthwith from parading himself as the Welfare Officer of the said Association and the 5th defendant forthwith from parading himself as the Public Relations Officer (PRO) of the said Association.
c. An Order of injunction restraining the defendants forthwith from operating or from conducting any banking transaction in respect of the savings account standing in the name of Obowo Progressive Union, Sokoto State Branch designated as Account number 02522180001120 (or however designated) maintained with United Bank for Africa Plc domiciled at Kano Road Branch 1 Sokoto Office of the said Bank or maintained at any branch office of United Bank for Africa Plc or at any other Bank or financial institution howsoever called.
d. An Order of this Honouroble Court directing the defendants to forthwith hand over to the Plaintiffs all movable properties of Obowo Progressive Union, Sokoto State Branch in possession of the defendants including minute books, receipts booklets, books of account/finance, audit reports, plastic chairs, tablets, cooking Utensils, spoons, plates, empty drums, musical instruments, etc.
e. An Order of this Honourable Court directing the defendants forthwith to present themselves personally before the plaintiffs on a specified date for financial auditing in compliance with the provisions of Article 10 of the Constitution of Obowo Progressive Union, Sokoto State Branch.
f. An Order of this Honourable Court directing the defendants to forthwith remit or hand over to the plaintiffs all monies of Obowo Progressive Union, Sokoto Branch in the custody or possession of the defendants as monthly dues, levies, proceeds of end of year party etc.,
g. The cost of this action.
The Amended Joint Statement of defense of the Defendants was dated 21-2-2013. At Paragraph 60 of the said Amended Joint Statement of Defense, the defendants counter-claimed as follows;
a. An other (sic) mandating Jude Nwogu and Ikechukwu Iwueke to account for;
1. The official stamp of OPU and minutes of meetings of Obowo Progressive Union from April 2010 to February 2011.
b. The sum of N150.00 against Ikechukwu Iwueke (3rd Plaintiff) being monies not accounted for and in his possession.
c. Against Peter Uhueghu (4th Plaintiff), the sum of N4,500.00 being outstanding monies owed OPU and which has remained unpaid by him.
d. Against Mazi Simon Iwu, the sum of N140,980.00 being monies owed to OPU and which has remained unpaid till date.

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e. Against Linus Amaechi, the sum of N37,670.00 being the outstanding balance of monies to OPU and which monies have remained unpaid despite repeated demands.
f. The sums of N5,000,000.00 being damages for the Plaintiffs acts of disrupting the smooth running of OPU arising from their sequence of acts of meant to frustrate the defendants from running the affairs of OPU to the best of their ability.
g. A Declaration to (sic) the acts of the Plaintiffs in contrary to the spirit and letters of the Amended OPU Constitution 2009 and any other Constitution of OPU as Amended.
h. A perpetual injunction restraining the Plaintiffs by themselves through their agents from further interference with the smooth running of the affairs of OPU by defendants who are the recognized and duly elected Executives of OPU.
i. Such further or other Orders as this Court may deem fit to make in the circumstances.
On the 12-3-2013, the Plaintiffs filed 26 paragraphs Reply to the Statement of Defense and Plaintiffs defense to Counter claim. That was the state of pleadings before the matter went to trial. The Original Statement of claims of Plaintiffs and (now Respondents) at the Court below is at pages 6 – 13 of the printed records while the Original Joint Statement of defense and Counter claims of the Appellants is at pages 14 – 24 of the records. The Reply to the Statement of defense and defense to Counter claims of the Respondents is at pages 25 – 31 of the records. The Respondents Amended Statement of claims is at pages 34 – 42 of the records while the Amended joint statement of defense of Defendants and now Appellants is at pages 43 – 54 of the records.
In proof of this case, the Respondents as Plaintiffs called a total number of five (5) witnesses and tendered nine (9) Exhibits marked as Exhibits A, B, C, D, E, F, G, H & J and closed their case while Exhibits M, N, AA, AAI, AAII, and LL were tendered by the Respondents through DW2 and DW3 under cross examination. See pages 66 – 100 of the records.
The Appellants on the other hand in seeking to establish their defense and counter claims called a total number of three (3) witnesses and tendered 46 Exhibits marked as Exhibits K, L, M, N, O, P, Q, R, S, T, U, V, PI – P3, W, W1, W2, X, X1-X5, Y, Y1-Y6, Z, Z1 – Z5, BB, CC, DD, EE, FF, GG & HH and thereafter closed their defense. See pages 102 – 130 of the records. At the close of hearing, the Court below ordered the filing of written final addresses of Counsel which were subsequently filed, exchanged and adopted at pages 135- 177 of the records.
In a considered judgment, the Court below found partly in favour of either sides to the dispute when the Court granted Plaintiffs Reliefs except their Relief 30 (A) and the Defendants Reliefs 61 (A-E) of their Counter Claim when the Court said as follows;
On the whole, I find that the Plaintiffs have proved their case on the balance of probability except relief 30 (A). The Defendants have also proved reliefs 61 (A-E) of their Counter claim. Accordingly, I make the following orders;
1. That the defendants are hereby restrained forthwith from parading themselves as Executive members of Obowo Progressive Union, Sokoto State branch.
2. That the defendants are restrained forthwith from operating or from conducting any banking transactions in respect of the savings account standing in the name of Obowo Progressive Union, Sokoto State branch designated as account number 2522180001120 maintained with United Bank for Africa Plc domiciled at Kano Road Branch Sokoto

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or maintained at any other branch of United Bank for Africa Plc.
3. That the Plaintiffs shall conduct election to constitute the Executive Officers of Obowo Progressive Union Sokoto State branch (OPU) within 30 days from today.
4. That the election shall be open to all members of OPU Sokoto State chapter including the parties to the suit as per the writ.
5. That both parties to the suit shall hand over all properties, documents and monies of OPU in their possession and or they are owing to the elected officers forthwith.
6. That the defendant shall pay the sum of N20,000.00 to the Plaintiff as the cost of the suit.
See pages 177 – 202 of the records.
Dissatisfied with this judgment, the Appellants have appealed to this Court vide their Notice of Appeal dated 5-12-2014. See pages 203 – 207 of the records. There are a total of five (5) Grounds of Appeal which are hereby reproduced but without their particulars as follows;
GROUNDS OF APPEAL;
1. The Court below erred in law and acted without jurisdiction when in entering judgment in favour of the Respondents in suit No. SS/3/2013, it granted reliefs that were not sought by the Respondent and this has occasioned a miscarriage of justice.
2. The Court below erred in law and acted without jurisdiction when after in suit No. SS/89/2012 delivered on 8th day of September, 2014, the same day of the judgment in suit No. SS/3/2013 was delivered, it declared the Appellant as the Authorized signatories to Obowo Progressive Union Sokoto State Chapter Account no. 2015939272 with United Bank for Africa Plc and that the Appellants have the right to access and or operate the said Account on behalf of Obowo Progressive Union Sokoto State Chapter it nonetheless without any appeal against the said judgment in suit No. SS/89/2012 further reviewed and or reversed its order and granted a relief to the Respondent in suit No. SS/3/2013 restraining the Appellants forthwith from operating or conducting any banking transaction in respect of the savings account in the name of Obowo Progressive Union Sokoto State Branch maintained at any other branch office of United Bank for Africa Plc and this has occasioned a miscarriage of justice.
3. The Court below erred in law when it held that the acts of the 1st Appellant and or the Appellants in not holding meetings of Obowo Progressive Union for a period of 3 months amounts to an act of gross misconduct which according to Obowo Progressive Union Sokoto State Branch Constitution entitles the 3rd Appellant to dissolve the Executive of the Appellants and this has occasioned a miscarriage of justice.
4. The Court below erred in law and prejudiced the Constitutional Right to fair hearing of the Appellants as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 when it failed and or neglected to consider all the reliefs contained in the Counter claims of the Appellants and make specific findings on same notwithstanding that the Appellants proffered both oral and documentary evidence in proof of same and issues were duly joined by the parties and this has occasioned miscarriage of justice.
5. The judgment of the Court below is against the weight of evidence.
Of its own volition, the Appellant abandoned its Ground two (2) of the five (5) Grounds of Appeal and Ground two (2) was accordingly struck out by this Court leaving Grounds 1, 3, 4 and 5 and out of which the Appellants nominated a total of two (2) issues for the Courts determination as follows;
1. Did the Court below reserve the jurisdiction to grant reliefs that were not sought in favour of the Respondents? (Ground 1).
2. Was the judgment of the Court below correct in law in relation to both the claims of the Respondents

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and the counter claims of the Appellants? (Grounds 3, 4 & 5).
On the part of the Respondents, two issues were equally nominated for the determination of Court as follows.
1. Whether the Court below was correct in law when it granted reliefs (3), (4) and (5) as contained on page 201 of the record of appeal even when the said reliefs were not specifically prayed for by either party to the action before it. (Ground 1.)
2. Whether the decision of the Court below respecting the claims and the counter claims of the parties before it can be supported having regard to the evidence placed before it. (Grounds 3, 4 and 5.)

After a careful examination of the issues nominated by learned Counsel for the parties, it is rather clear that the issues nominated by both sides are clearly identical except for a few differences in semantics and that for this reason, this Appeal shall be determined on the basis of the issues nominated by the Appellants but after a few surgical amendments have been carried out on the issues by this Court for the purpose of injecting a modicum of clarity to the issues nominated so as to clearly meet the justice of this case.
The Appellants Brief of argument dated the 16-5-2016, settled by IBRAHIM ABDULLAHI ESQ., was filed on the 18-5-2016, but deemed properly filed and served on the 25-5-2016 while the Brief of argument of the Respondents dated 11-11-2016, settled by CHIEF J. E. OCHIDI., was filed on the 15-11-2016 and deemed properly filed on the 29-11-2016. On the 17-1-2017 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of arguments and urged the Court to decide in favour of their sides. There, once again being no disagreements as such as to the issues nominated except for a few instances of semantics, this Court shall therefore decide this Appeal on the basis of the issues nominated by the Appellant after the modifications here above referred to.
ISSUE ONE;
Whether the Court below had the jurisdiction to grant reliefs 3, 4 and 5 in favour of the Respondents, which were Reliefs not specifically claimed by either party to the suit? (Ground 1).
ISSUE TWO;
Whether the Judgment of the Court below in respect of the claims and the counter claims of the parties can be supported having regard to the evidence and circumstances of the case (Grounds 3, 4 and 5.)
ARGUMENTS OF ISSUES BY LEARNED COUNSEL TO THE PARTIES;
ISSUE ONE;
Whether the Court below had the jurisdiction to grant reliefs 3, 4 and 5 in favour of the Respondents, which were Reliefs not specifically claimed by either party to the suit? (Ground 1.)
Learned Appellants Counsel told Court of the fundamental nature of the question of jurisdiction which requires that a Court has to determine a cause solely by reference to the claimants claim. He cited the cases ofORTHOPEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT. 788) 58 AT 56 PARA C D; AG ANAMBRA vs. AG FEDERATION (1993) 6 NWLR (PT. 302) 692 AT 742 in support. This being the case, Counsel further argued that it is the facts and reliefs stated in the writ of summons and or statement of claims that the Court below has to gloss over to see what was actually claimed and which ought to be the paradigm of what it ought to grant. He further argued that the powerful nature and overriding superiority and sanctity of the claims endorsed in the statement of claims is further revealed by the

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fact that even in the determination of the nature of the cause of action of the Respondents case at the Court below, it is to be had by reference to the Respondent’s statement of claims and not from the defense of the Appellants. See KWARA vs. OLAWALE (1993) 1 WLR (PT. 272) 645 AT 675 PARA E.
According to Counsel, the claims of the Respondents in their amended statement of claims at the Court below are at pages 40 – 42 of the records. He said that these are the claims that binds the Court below and by which the judgment of the Court below were circumscribed. Counsel also said that the reason for this is that parties are bound by their pleadings and that they are not allowed to make a case that is at variance with their pleadings and that for this reason also the Court is not in a position to make one for them. He cited the cases ofMAKINDE vs. AKINWALE (2000) 1 SC 59; ITO vs. EKPE (2000) 2 S.C. 98 and UKAEGBU vs. UGOJI (1991) 6 NWLR (PT.196) 127 in support. It was therefore argued by Counsel that the Court below had no justification whatsoever to have granted the Reliefs 3, 4 and 5 not claimed by the parties to the suit. Counsel also cited the following cases to buttress his argument to wit;EKWUNIFE vs. WAYNE (W/A) LTD (1989) 5 NWLR (PT 122) 422; SIMTON vs. PAMIL (2001) 13 WRN 55; AWONIYI vs. AMORC (2000) 6 SC (PT. 1) 103 and BELLO vs. ARUWA (1999) 8 NWLR (PT 615) 454.

It was also contended by Counsel that by awarding a relief not claimed at the Court below, the Court awarded what was not proved and demonstrated in evidence and that in law, a Court of law cannot award what had not been proved in evidence. According to Counsel, there is in law an obligation to enter judgment on its merit only if the party is entitled to it and per proved claim. See the case of FORTUNES INT’L BANK PLC vs. CITY EXPRESS BANK LTD (2012) 12 NWLR (pt. 1319) 86.

Counsel further argued that the orders made by the Court below were not in the nature of consequential orders but entirely new set of orders that goes contrary to the case as fought by the Appellants and the Respondents at the Court below as well as the respective claims and or reliefs put forth by the parties. He urged the Court to resolve this issue in favour of the Appellants.
On the part of the Respondents, Counsel was of the view that the Court below was correct in law when it granted reliefs (3), (4) and (5) as contained on page 201 of the records of Appeal even when the said reliefs were not specifically prayed for by either party to the action. According to learned Counsel, the Cause which the Court below adjudicated upon and which gave rise to this Appeal consists of the claim of the Plaintiffs/Respondents against the Defendants/Appellants as well as the Counter claim of the Defendants/Appellants against the Plaintiffs/Respondents.
As far as Counsel is concerned, the grant of the reliefs 3, 4 and 5 by the Court below are in the nature of consequential reliefs or orders which a trial Court is vested with the requisite jurisdiction to grant even if same were not specifically prayed for by any of the parties before it. He said that a trial Court has the power to grant consequential reliefs and that such a consequential relief need not have been claimed but must relate to a matter adjudicated upon. According to Counsel, such orders are made subsequent to a decision and it is one which flows directly or naturally from the decision which is inevitably consequent to it. Counsel cited the case of AKAPO vs. HAKEEM – HABEEB (1992) 6 NWLR (PT. 247) 266 AT 304, where the Supreme Court per NNAEMEKA AGU, JSC defined a consequential order thus: –
“A consequential order is one which flows directly and naturally from the decision or order of Court made on the issues in litigation and inevitably consequent upon it.”
Counsel also cited the following cases in support. EFCC vs. ODIGIE (2013) ALL FWLR (PT 692) 1797 AT 1818; UBALE vs. DADIYA (2009) ALL FWLR (PT 489) 598 AT 611; AIGUOKONRUEGHIAN vs.

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IMARUAGBERU (2015) ALL FWLR (PT. 785) 269 AT 294. In the instant case, Counsel argued that the Reliefs 3 and 4 which were granted by the Court below and directing the Plaintiffs to conduct a fresh election so as to re-constitute the Executive Committee of OPU within 30 days and also an order for all members of OPU to be allowed to participate in the election was indeed to give effect to Reliefs 1 and 2 of the Reliefs granted by the Court below. This, Counsel said is especially so as the Court below had made a finding of fact at page 198 of the record of appeal that even the 1st Appellant’s led Executive Committee cannot continue to remain in office as members of the Executive Committee of OPU as their tenure in office had expired as at 15/7/2013. Counsel therefore argued that it became imperative for the Court below to make the said Orders 3 and 4 herein complained of by the Appellants so as to avoid a vacuum in the Executive Committee of OPU and allow a smooth running of the affairs of OPU.
Learned Counsel therefore submitted that although the said orders granted by the Court below were not specifically prayed for by either party, that the Court below still had the jurisdiction to grant same as consequential orders flowing from the grant of Reliefs 1 and 2 as same became necessary so as to give effect to the judgment of the trial Court and avoid a vacuum in the administration of OPU. In addition, Counsel said that the Courts action is also to be viewed as capable of putting an end to litigation on the same issue between the parties to the action.
In the case of the grant of Order 5, Counsel argued that the grant is to the effect that both parties to the action should hand over all the properties, documents and monies of the OPU in their possessions or which they were owing to duly elected officers of the OPU and in particular to the ones who would be elected consequent upon the orders made by the Court below as per the Orders 3 and 4. It was submitted therefore by Counsel that the said Order 5 was properly granted as the Court had earlier on in its judgment granted the Reliefs appearing in Paragraph 30(d) of the Amended Statement of Claim of the Plaintiffs/Respondents. In the same token, Counsel argued that the Court below having also granted Defendants/Appellants counter claim encapsulated in Paragraphs 61(a)-(e) directed at members of the OPU who belonged to the opposite faction to account for certain sums of money and documents of the OPU in their possession, that the Order 5 granted naturally flows directly from the grant of the Reliefs embedded in both the claims and counter claims in this action. He therefore said in addition, that the grant of Order 5 was actually intended to give effect to the judgment delivered by the Court below in respect of the claims and the counter claims of the parties hitherto granted by the Court. Counsel urged the Court to resolve this issue in favour of the Respondents.
ISSUE TWO;
Whether the Judgment of the Court below in respect of the claims and the counter claims of the parties can be supported having regard to the evidence and circumstances of the case before the Court (Grounds 3, 4 and 5.)
Learned Appellants Counsel submitted that the burden of proof in civil cases rests squarely on the person who asserts. See Section 132(1) of the Evidence Act 2011 (as amended). It was also argued that the standard of proof required is on the preponderance of evidence and the balance of probabilities. Counsel cited the cases ofDAUDA vs. NNPC (1998) 2 NWLR (PT 538) 335; NBN LTD vs. SPDC CO. LTD (1998) 5 NWLR (PT. 548) 144 andITAUMI vs. AKPE IME (2000) 7 S.C. (PT 11) 24.
It was the contention of learned Appellants Counsel that the claims of the

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Respondents at the Court below were discretionary reliefs and that being discretionary reliefs, the Court had the judicial discretion to either grant or refuse to grant and that such discretion is one that must be exercised judicially and judiciously. See the case of ODUSOLE vs. MIL. GOVERNOR, OGUN STATE (2002) FWLR (PT 123) P. 361 AT 396. Counsel also argued that the Court does not grant a declaratory relief either on admission or in default of defense without hearing evidence and being satisfied with such evidence. Counsel cited the case ofELEOKONKWO vs. OKEKE (2002) FWLR (PT. 109) 1652 AT 1675 1675 and also the case of OSUJI vs. EKEOCHA (2009) ALL FWLR (PT 490) 614 AT 640 where the Supreme Court per ADEKEYE, JSC held that for the Plaintiff to succeed on a claim of declaration, he must establish his claim with credible and acceptable evidence based on the strength of his own case and not on the weakness of the case of the defense.
Learned Counsel also argued that Courts are duty bound in law to make pronouncements on all the claims of parties for the purposes of determining whether they are entitled to same or not. He referred this Court to the case of UNITY BANK PLC vs. AUTOMATIVE CO. LTD (2012) ALL FWLR (PT. 610) 1265 AT 1312 PARA F-G.
In so many words, the Appellants strenuously contended that the Respondents failed to establish any legal rights upon which the Court below hinged the remedy of injunction granted more so when they did not at anytime claim that they were the rightfully elected Executives of OPU. It was further argued by Counsel that injunctive relief’s can only be granted to persons who can have the Court make declarations first in their favour. He contended that for the grant of an injunction to be made the Court must be satisfied with the nature of the injunction sought and at what point in time it is sought. In other words, that the Respondents must have established a legal right to the satisfaction of the Court before the injunction is granted. Counsel cited the cases of OBEYA MEMORIAL SPECIALIST HOSPITAL vs. A.G.F (1987) 2 SCS 961; MOROHUNFOLA vs. KWARA TECH (1990) 4 NWLR (PT. 145) 506; KELE vs. NWEREBERE (1998) 3 NWLR (PT. 543) 515. Counsel urged the Court to resolve this issue in favour of the Appellants.
Learned Appellants Counsel contended that the Appellants witnesses successfully denied all these allegations of the Respondents as Plaintiffs and that thereafter, the DW1 and DW2 gave consistent evidence which showed the falsity of all these allegations and its unconstitutional nature by virtue of the OPU’s Constitution. In the first place, Counsel further contended that even though the Respondents claimed there was no meeting on 19/2/2012, Exhibits W; W1 & W2 (i.e. pages 53 – 55 of Exhibit O) showed the minutes of meeting of 19/2/2012. Counsel added that there is no contrary evidence that debunks Exhibits W, WI & W2 and thence probative value ought to have been attached to the Exhibits and believed. It was further contended by Counsel that the facts relating to what transpired on the 19/21/2012 on the part of the Respondents are contradictory. For example, Counsel said that the PW2 (5th Plaintiffs) contradicted himself during cross examination when he stated that the entire members of the Executive officers of the 1st Defendant did not walk out of the meeting of 19/2/2012 contrary to what PW2 (5th Respondent) stated in Exhibit D that the entire Executive Officers of the 1st Defendant walked out of the meeting of 19/2/2012. See pages 78 lines 13 – 14, lines 14 – 16 of the records.
Learned Counsel also contended that the PW2 (5th Respondent) admitted under cross examination that the 1st Appellant seized (sic) to be recognized as the Chairman of OPU from 15/7/2012 and that it was the same time he (5th Respondent) seized (sic) to be the treasurer of OPU. But according to Counsel, in Exhibit D, the PW2 stated that it was on the 19/2/2012 that the entire Excos seized (sic) to be recognized and not 15/7/2012. See page 78 lines 15 16.

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Learned Appellants Counsel further argued that the purported allegation of refusal to preside over meetings (even if at all it existed, but which fact the Appellants are not conceding to) is by Exhibit A, only a refusal to accept responsibility and that it carries a penalty of 500.00 and does not carry the penalty of impeachment. According to Counsel there is evidence from PW1 under cross examination at page 71 lines 11-12 of the records that if the Chairman of OPU (referring to the 1st Appellant) fails to carry out his responsibility, the Vice-Chairman is to carry out the said responsibilities. Counsel contended that the evidence before the Court below, did not reveal why the vice chairman failed to carry out his responsibility even though he existed. According to Appellants Counsel, neither the Respondents nor any of their witnesses testified that they saw the 1st Appellant and his Executives disrupting the women’s wing meeting of OPU. He added that Exhibit J, which was said to be written to the PW4 (3rd Respondent) by his wife, Vivian Elesiro dated 27/2/2012 was not shown to have been brought to the attention of the Appellants, neither did the PW4 verified the allegations contained therein as confirmed by PW4 (3rd Respondent) under cross examination. Counsel referred Court to page 94 lines 24 – 26 of the records where the 3rd Respondent under cross examination stated thus:
“… I do not know if the 1st & 2nd Defendants received Exhibit J written by the women wing of OPU. I did not verify the contents of the Exhibit J…”

This Court was also told that the Constitution of OPU made provision for the passage of a vote of no confidence on any officer before he is removed from office. See Article 16(1) & (2) of Exhibit A. Against this backdrop, it was therefore argued that the PW1 (1st Respondent) admitted under cross examination that a vote of no confidence was never passed on the Appellants Executives by OPU and that the PW1 (1st Respondent) was present at the said purported meeting of 15/7/2012 held by the Respondents. See page 70 lines 11- 13 of the records.
It was the contention of the learned Counsel that under cross-examination, the PW2 agreed against the interest of the Respondents that at the meeting of 15/7/2012, no notice of meeting were not given to the Appellants by the Respondents. He further said that the PW2 under cross-examination stated that Article 14(2) of Exhibit A was what they used in removing the Appellants and that OPU found the 1st Appellant guilty. Counsel also contended that the evidence of guilt was not before the Court below and in any event, a finding of guilt or criminal imputation can only be tried by a Court of competent jurisdiction not the Respondents.
Still on this issue, Counsel argued that all the purported allegations levied (sic) against the Appellants bordered on misconduct and that the penalty for misconduct even if established is suspension. What is more, Counsel argued that the Respondents witnesses gave the numerical strength of OPU as 38 under cross-examination; that by Exhibit A, (OPUs Constitution) election to any elective office is by 2/3 majority of the members present. According to Counsel, the results of election purportedly evidenced by Exhibit F shows only 15 members participate out of 45 members; that 2/3 of the members of 45 is 30 members and not 15 members.
Counsel also told Court that Dominic Osundu and Simon Iwu (PW5) and who were equally Plaintiffs in the case at the Court below via Paragraph 5 of the amended statement of claims of the Respondents were both electoral officers and still contestants and were elected at the same time as PRO/Welfare Officers and Ex- officio 1 respectively. This, Counsel said is against the principle of natural justice and fair play.
It was also contended that contrary to the judgment of the Court below, the Appellants ought to remain elected executive offices of OPU and the relief in Paragraph 30(b) of the amended statement of claims of the Respondents at the Court below, ought not to be granted as at

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15/7/2012 or afterwards. Specifically, Counsel contended that the issues of vote of confidence was pleaded in Paragraph 57 of the amended statement of defense of the Appellants at the Court below and that the Respondents never replied on same or did not join issues with the Appellants on this. In law, Counsel said that this amount to an admission. He referred to the case of IYERE vs. BFFM LTD (2001) FWLR (PT. 37) 1166 AT 1177.

In respect to prayer 30(c) of the amended statement of claim of the Respondents, Counsel submitted for the Appellants that evidence are bound even from the Respondents witnesses that the Appellants and the 5th Respondent are the authorized signatories to OPU’s account and that the said signatories have not been changed. He added that the argument have been advanced that the Appellants ought to remain and are the lawful executive officers of OPU and thence entitled to operate OPUs account with UBA Plc on its behalf.
On relief 30 (d) of the amended statement of claims of the Respondents, Counsel submitted that since the Appellants still remain the validly elected officers of OPU, there is nothing to hand over to the Respondents and that in any event, the alleged moveable properties of OPU itemized as minute’s books, receipts booklets, books of account/finance, audit reports, plastic chairs, plates, empty drums, musical instruments etc in Paragraph 30(d) thereof were never given in evidence. There was no evidence supporting same throughout the evidence of the Respondents witnesses. He cited the case of ADEOSUN vs. GOVERNOR OF EKITI STATE (2012) ALL FWLR (PT. 119) 1044 AT 1059 PARA E OF RATIO 5. Against this backdrop, Counsel contended that an averment of a fact in pleadings is no evidence and can never be so construed as it has to be proved by evidence, subject, however to admission by the other party. See the cases of INS. BROKERS OF NIG vs. ATM CO. LTD (1996) 8 NWLR (PT 466) 316; YUSUF vs. OYETUNDE (1998) 12 NWLR (PT. 579) 483, and OLORUNFEMI vs. ASHO (2000) 1 SC 15.

It was further argued by Counsel that there was therefore no evidence that could have justified the orders of the Court below relating to the fact that all parties should hand over the properties in their possession. He said that this is a vague order that is incapable of performance.
In respect of reliefs No. 30(g), Counsel contended that the relief would invariable fail owing to the failure of the entire case of the Respondents which crumbled like pack of cards.
In respect of the counter-claim of the Appellants as Defendants Counsel contended that in law, a counter-claim is an independent action. He cited the case of AMINA vs. OMOFUMA (1997) 2 WLR 93 AT 108. It was argued by Counsel that the Appellants have been able to prove all their counter-claims against the Respondents and those they represent and that the Court below failed to consider and make specific findings on facts relating to reliefs 61 (F – H) in the Appellants amended statement of defense notwithstanding both oral and documentary evidence adduced at the Court below. At best, Counsel said that what the Court below did was to say in passing at page 200 of the records, that since the Appellants were purportedly validly removed from office, then the Appellants were not entitled to the said reliefs sacrificing by so doing, the independent nature of a counter claim.
It was further contended by Counsel that if the Court below had considered the independent nature of the counter claims

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of the appellants, without necessarily tying same to that of the Respondents in their main claim, the Court would have come to the conclusion that the Appellants have given evidence on how the acts of the Respondents tended to crumble the activities of OPU.
Appellants Counsel in his arguments sought to make a cause for the award by the Court below of general damages to the Appellants. Counsel aid that general damages can be granted by Courts as they are damages which the law implies or presume to have accrued from the wrong complained of. He said that they are presumed to flow from the immediate, direct and proximate result of the wrong complained of and that the Court exercising its discretion in awarding general damages have the responsibility to calculate what sums of monies will be reasonable in the circumstance of the case. He cited the case of, see OSUJI vs. ISIOCHA (1989) 3 NWLR (PT. 111) 623. According to Counsel the entitlement of the Appellants to general damages stems out additionally from the fact that the Court below held that the Appellants succeeded to reliefs a – e of the counter claims. See pages 199 – 200 of the records.
In respect of the relief 61 (g) of the amended statement of defense of the Appellants, Counsel contended that same cannot simply be tied to the findings that the Appellants were lawfully removed from office as this relief differs from the one granted by the Court below in the main claims of the Respondents. Counsel reminded Court how the Appellants had hitherto argued in respect of issue No.1, how the acts of the Respondents variously offended the spirit and letters of OPU’s amended Constitution (Exhibit A). Counsel finally urged the Court to resolve this issue in favour of the Appellants and against the Respondents.
On the part of the Respondents, learned Counsel drew attention to the findings of the Court below concerning the controversy generated between the parties as to which of the two versions of the Constitution of OPU is in operation and binding on its members. Counsel told Court that while the Plaintiffs/Respondents relied on Exhibit “A” as the authentic Constitution, the Defendants/Appellants placed reliance on Exhibit “K claiming that Exhibit “K” is the amended and current Constitution of OPU in operation. Learned Counsel further told Court that in its judgment, the Court below held at pages 192-193 of the record of Appeal that Exhibit “A” and not Exhibit “K” is the operational Constitution of OPU.
This vital finding of fact made by the Court below, Counsel submitted has not been challenged by the Appellants before this Court and he cited the case of NDIWE vs. OKOCHA (1992) 7 NWLR (PT.252) 129 AT 139-140, where the Supreme Court per OGWUEGBU JSC held thus: –
“The finding of the learned trial judge that the parcel of land in the Onitsha District Court Suit No. 568/58 is the same as the land the subject matter of the present action is a finding of fact on a specific issue. That issue should be raised as a substantive ground of appeal. It could not be covered under the omnibus ground 7.”

Counsel therefore contended that in the instant case, the Appellants never filed any ground of appeal to challenge the finding of the Court below to the effect that Exhibit “A” which was tendered and relied upon by the Respondents is the authentic Constitution of OPU as opposed to Exhibit “K” which was produced and relied upon by the Appellants. It is further contended by Counsel that the settled position in law is that once a finding of fact is made by a trial Court and it has not been appealed against, such a finding stands admitted and binding on all parties to the action. See the cases of ARAF vs. ONYEDIM (2012) ALL FWLR (PT. 625) 365 AT 286; Counsel also cite the case of CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD vs. EKPO (2008) ALL FWLR (PT. 418) 198 AT 218, where the Supreme Court per ONNOGHEN, JSC held thus: –

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“It is settled law, however that a finding of a Court or Tribunal not appealed against is deemed accepted by the party against whom the finding was made.”
In this context therefore, Counsel submitted that this appeal is determinable by the provisions in the Constitution of OPU admitted in evidence by the trial Court as Exhibit “A” and not by the version which was produced by the Appellants and admitted in evidence as Exhibit “K” at the Court below. Against this background, Counsel told Court that the reliefs which the Respondents as Plaintiffs claimed against the Appellants as Defendants before the Court below are as contained in Paragraph 30(a)-(g) of the amended statement of claim of the Plaintiffs which can be seen at pages 40-41 of the record of appeal. He said that a perusal of the said claims indicate that same are not declaratory in nature and as such, the burden of prove on the Plaintiffs/Respondents is on the preponderance of evidence and balance of probabilities. He cited the cases of EYA vs. OLOPADE (2011) ALL FWLR (PT. 584) 28 AT 48; ELIAS vs. OMOSARE (1982) 5 SC 25 and ODULAJA vs. HADDAD (1973) 11 SC 357. Counsel also referred to the provisions of Section 134 of the Evidence Act, 2011 which states as follows: –
“The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.”
It is further submitted by Counsel that the burden of proof so placed on the Plaintiffs/Respondents would be discharged if they adduce cogent and credible evidence that has direct relevance to the matter in controversy. See AGBOOLA vs. U.B.A. Plc (2011) ALL FWLR (PT.574) 74 AT 93. According to learned Counsel, the pertinent question to be answered on this issue is whether the Plaintiffs/Respondents placed before the Court below credible evidence in proof of their claims against the Appellants as Defendants, which claims the Court below granted in favour of the Plaintiffs/Respondents.
Counsel told Court that what must be closely observed is that the Court below refused the Respondents’ relief as contained in Paragraph 30(a) of the amended statement of claim of the Plaintiffs/Respondents as the Court below held at page 193 of the record of appeal that the Plaintiffs/Respondents in their pleadings admitted that the Appellants are indeed members of OPU since membership of OPU is open to, all sons, daughters and wives of Obowo Local Government Area residing in Sokoto. Counsel told Court that despite that decision of the Court below, the Respondents have not filed any cross-appeal to challenge this decision of the trial Court and as such, same remain binding on the respondents.
In the same token, Counsel argued that at page 198 of the records of Appeal, the Court below granted the Plaintiffs/Respondents’ relief as contained in Paragraph 30(b) of the amended statement of claim of the plaintiffs/respondents and that whilst doing this, the Court carefully evaluated the evidence led before it as can be seen at page 193 (last paragraph) to page 198 of the records of Appeal and came to an irresistible conclusion that the 1st Appellants’ led Executive Committee was successfully impeached by members of OPU when the 1st Defendant as the Chairman of OPU refused to convene the monthly meeting of OPU for the months of March, April, May and June 2012 contrary to the Provisions in Article 6 and 8 of OPU Constitution (Exhibit “A”). Counsel submitted that in granting the said relief, the Court below also relied on the evidence of PWS 1 – 5 and as well as that of DW1 – 3 in addition to the contents of Exhibits “E” and “F”. Counsel also referred to an Exhibit “J” which shows that the 1st Appellant disrupted the OPU Women’s wing from holding their meetings.
Counsel further said that the Court below also found as a matter of fact that on the basis of Exhibits E and F and page 55 of Exhibit W2, coupled with the evidence of PWS 1 – 5, that other members of 1st Appellant’s led Executive Committee equally walked away from OPU general meeting of the 19/2/2012 on the directives of the 1st Appellant thereby rendering the said meeting inclusive. Counsel referred to

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pages 195-196 of the records of Appeal where the Court below evaluated the evidence led before it in respect of this relief.
It was the contention of Counsel that the defense of the Appellants for this flagrant breach of the Constitution of OPU by the 1st Appellant and members of his Executive Committee was that the Imo State Community Association Sokoto (ICAS) to which OPU is affiliated directed OPU to stop holding its monthly meetings till further notice. For this, Counsel referred Court to the last paragraph of page 194 of the records of Appeal. But again, Counsel said that the Court below made a finding of fact on this line of defense at page 194 of the records of Appeal where it held as follows: –
“There is no documentary evidence in support of the ICAS directives on OPU to stop holding its general meetings. Again, the power of ICAS to give such directives to OPU cannot be traced in Exhibit A. In view of the above, and by the use of the word “shall” in Articles 6 and 8 of Exhibit A, it does not give room for any excuse on the part of the 1st Defendant not to convey general meetings for several months.”

Arising from this position, Counsel said that the Court below held that the 1st Appellant’s led Executive Committee was lawfully impeached on 15/7/2012 for acts of gross-misconduct pursuant to the provisions of Article 14(2) of Exhibit A. Counsel referred Court to page 196 of the records of Appeal and went ahead to reproduce the provision of Article 14(2) of Exhibit A relied upon by the Court below to validate the removal of 1st Defendant’s led Executive from office provides as follows: –
“Vote of no confidence may be passed on any officer if found guilty of gross-misconduct in the discharge of his official duties, such a motion for removal shall be supported by at least 2 members and passed at least by 2/3 of the votes of members present in general assembly.”
On account of this position, Counsel submitted that even though the word; “gross-misconduct” as used in Article 14(2) of Exhibit “A” is not defined in Exhibit “A”, but that the Black’s Law Dictionary at page 999 (6th Edition)defines same as; “great transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, improper or wrong behavior, delinquency, impropriety.
Against this backdrop, Counsel therefore submitted for the Respondents that the acts of the 1st Appellant in refusing to convene the general meeting of OPU for several months and the acts of the other members of the said Executive Committee of OPU in staging a walk out from the general meeting of OPU held on 19/2/2012 (including the 2nd Appellant and the persons they represent in this action) on the orders of the 1st Appellant, amounted to acts of gross-misconduct within the context of the Provisions of Article 14(2) of Exhibit “A” as the said act disrupted the meeting of OPU on the said date and paralyzed the activities of OPU for several months.
It is therefore further submitted by Counsel that there were ample pieces of documentary and oral evidence existing on the record to support the decision of the Court below in granting the relief claimed by the Plaintiffs/Respondents in Paragraph 30(b) of the amended statement of claim of the Plaintiffs/Respondents. Counsel added that the Court below having found for the Plaintiffs/Respondents on the relief in Paragraphs 30(b) of the amended statement of claim of the Plaintiffs/Respondents, it became a matter of cause for the said Court to grant the reliefs in Paragraphs 30(c)-(e) of the amended statement of claim of the Plaintiffs/Respondents. According to Counsel, this is so because if the Defendants/Appellants are restrained from parading themselves as

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members of the Executive Committee of OPU, it follows automatically that they cannot be in a position to operate the Bank Accounts of OPU and ought not to be in possession of the properties of OPU.
Counsel further said that having dealt with the claims of the Plaintiffs/Respondents in the manner stated above, the Court below proceeded to consider the counter claim of the Defendants/Appellants under issue No. 2 as can be seen from pages 198-201 of the records of Appeal and that by so doing, the Court granted in favour of the Appellants the reliefs in Paragraph 6(a)-(e) of the amended statement of defense of the Appellants. Despite this obvious fact, Counsel lamented that the Appellants in this appeal are still challenging the whole decision of the Court below as can be seen at page 203 of the records of Appeal.
On account of the reliefs prayed for by the Appellants in Paragraph 61(f)-(h) of the amended statement of defense, Counsel said that the Court below refused same. According to Counsel, the said reliefs in the counter claim of the Appellants which were so refused by the Court below are as appearing at page 53 of the records of Appeal while the reasons given by the Court below for not granting these reliefs can be seen at page 200 of the records of Appeal wherein the Court held as follows: –
Reliefs 61(F-H) cannot be granted in view of my findings at page 239 of the records that the 1st defendant led Executives were validly removed from office and replaced by the 1st Plaintiff led Executives on 15/07/2012. Accordingly, reliefs 61(F-H) are resolved in favour of the Plaintiffs and against the defendants.”

In respect of this position, Counsel submitted for the Respondents that the decision of the Court below in refusing the reliefs in Paragraph 61(F-H) of the Appellants’ counter claim as quoted above makes common sense and that if same were to be granted, it would have amounted to the Court below speaking from both sides of its mouth on the same issue. Counsel therefore submitted that the entire decision of the Court below particularly as it relates to the counter-claim of the Appellants against the Respondents was anchored by the trial Court on the evidence adduced before it by both parties in the action, which evidence was evaluated by the trial Court before it arrived at its decisions.
It was also submitted for the Respondents that the question of evaluation of evidence and of ascribing of probative value to the evidence adduced before Court is the primary function of a trial Court and where such an exercise has been carried out by the trial Court, an Appeal Court will loathe to interfere with the findings of fact and conclusions arrived at which are justified by the pieces of evidence placed before the trial Court. Counsel cited the case of OLALOYE vs. A.G. OSUN STATE (2015) ALL FWLR (PT. 774) 37 AT 741 and submitted that in the instant case, all the decisions arrived at by the Court below on both the main claim and the counter claim placed before it were supported by the pieces of evidence (both oral and documentary) which were led by the respective parties to the action. Counsel therefore urged upon us not to interfere with same but to resolve this issue in favour of the Respondents.
RESOLUTION OF APPEAL;
The only way the issues raised in this Appeal can be properly appreciated, and especially in their proper perspectives is to begin, if only in a nut-shell, to give a brief resume of the facts of this case. The Appellants and the Respondents are all members of Obowo Progressive Union Sokoto State Chapter (hereinafter referred to as; the OPU). The OPU is a Social-Cultural Association formed by its members to cater for the welfare of indigenes of Obowo Local Government Area of Imo State resident in Sokoto State. Sometime in the month of March, 2011, an Executive Committee under the Chairmanship of the 1st Appellant was elected into office for a term of two (2) years to expire in the month of March,

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2013 in accordance with the Constitution of the OPU, which was tendered and admitted in evidence before the Court below as Exhibit ‘A’.
Under the provisions of Exhibit A, it was made mandatory for the Chairman of OPU to convene the general meeting of the Association on the third (3rd) Sunday of every month. However, on the 19th day of February, 2012 when OPU held its monthly meeting for the month of February, 2012 as convened by the 1st Appellant as its then Chairman, the said 1st Appellant not only refused to preside over the meeting for no just cause, but also decided to call out the members present and attending the meeting including the 2nd Appellant to stage a walk out. This eventually resulted in paralyzing the activities of the OPU on the said day.
As a result of this development, the 3rd Respondent in this Appeal in his capacity as Patron of OPU led a delegation of members to the Imo State Community Association Sokoto State branch (hereinafter referred to as “the ICAS”), which is an umbrella body of all Community Associations of Imo State origin in Sokoto State of which the OPU is an affiliate member to have them mediate in the crisis generated. The ICAS eventually did, but to no avail and as a result, the OPU could not hold its mandatory monthly meetings from the months of March, 2012 as the 1st Appellant did not summon any such meetings.
However, the 3rd Respondent in his capacity as Patron and in his desires to douse the embers of tension created within the Association decided to convene a general meeting on the 15th day of July, 2012 and invitation was extended to all members of the OPU including the Appellants herein. It was at this meeting that a vote of no confidence was passed on the Executive Committee of the OPU led by the 1st Appellant and this led to the dissolution of that Executive. In order therefore, to fill the vacuum created in the Executive structure of the OPU by the dissolution of 1st Appellant’s led Executive Committee, a fresh election was conducted on the same date being the 15/07/2012 so as to have the administration of the OPU re-constituted. It was that election that led to the emergence of the 1st Respondent as Chairman of the OPU w.e.f. 15/07/2012 while other members were elected into various other offices in accordance with the provisions of Exhibit ‘A’ – the Constitution of OPU.
In spite of the said election, the 1st Appellant’s led Executive Committee, which had been dissolved (with the exception of one Godfrey Ogwuegbu who was the Treasurer in the dissolved Executive Committee) refused to hand over the affairs of the OPU to the newly elected Executive Committee led by the 1st Respondent. Rather, the members of the dissolved Executive Committee including the Appellants continued to lay claims to their respective positions and in the process, making frantic efforts to make withdrawals from the accounts of the OPU domiciled with the United Bank for Africa Plc (UBA). This remained the scenario until the Respondents as Plaintiffs initiated an action at the Court below and which, has given rise to this Appeal. In the course of trial, the Respondents called five (5) witnesses and tendered several documentary pieces of evidence as can be seen at pages 66-100 of the records of Appeal while the Appellants called three (3) witnesses and also tendered documents in defense of the action and in an attempt to establish their counter claims against the Respondents. At the conclusion of trial, the lower Court delivered its judgment on the 5-12-2014. The Appellants, not being satisfied have brought this Appeal to Court.
It would be recalled that the Respondents herein at first, filed a Notice of Preliminary Objection challenging the competence of Ground four (4) of the Grounds of Appeal. At the time of the argument of this Appeal, learned Respondents Counsel told Court of the intentions of the Respondents to abandon the objection made and

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to have the points made against the said Ground argued in the body of the Respondents brief of argument. On account of this position, therefore, the Respondents Notice of Preliminary Objection dated and filed on the 7-11-2016 is hereby struck out same having been withdrawn.
This having been done, it does not in any way suggest that if for any reasons, this Court finds the said Ground wanting in any way, that this Court will hesitate to wield the proverbial big stick of rectitude in dealing with the Ground. This Court, under the provisions of Order 6 Rules 3 and 6 of the Court of Appeal Rules, 2011 is empowered to either on its motion or upon an application to that effect strike out any Notice and Grounds of Appeal which is incompetent or discloses no reasonable Grounds of Appeal amongst a host of other reasons.
On account of the first issue nominated for the determination of this Court, the Appellants grouse with the lower Courts judgment is that the Court had no justification whatsoever to have granted the Reliefs 3, 4 and 5 not claimed by any of the parties to the suit. It was the contention of Counsel that by awarding a relief not claimed at the Court below, the Court awarded what was not proved and demonstrated in evidence and that in law a Court of law cannot award what had not been proved in evidence. According to Appellants Counsel, there is in law an obligation to enter judgment on its merit only if the party is entitled to it and as per the proved claim. Counsel cited a number of cases in support of his arguments, some of which are; EKWUNIFE vs. WAYNE (W/A) LTD (1989) 5 NWLR (PT. 122) 422; SIMTON vs. PAMIL (2001) 13 WRN 55; AWONIYI vs. AMORC (2000) 6 SC (PT. 1) 103 and BELLO vs. ARUWA (1999) 8 NWLR (PT. 615) 454; FORTUNES INT’L BANK PLC vs. CITY EXPRESS BANK LTD (2012) 12 NWLR (PT. 1319) 86.

Appellants further disagreed that the orders made by the Court below were in the nature of consequential orders as he said that they were entirely new set of orders that go contrary to the case as fought by the Appellants and the Respondents at the Court below and as well as the respective claims and or reliefs put forth by the parties.
On the part of the Respondents, the Reliefs 3, 4 and 5 granted by the Court below are in the nature of consequential reliefs or orders which a trial Court has the requisite jurisdiction to grant even if same were not specifically prayed for by any of the parties before it. He said such orders are made subsequent to a decision and it is one which flows directly or naturally from the decision which is inevitably consequent to it. Counsel cited the cases of AKAPO vs. HAKEEM – HABEEB (1992) 6 NWLR (PT. 247) 266 AT 304; EFCC vs. ODIGIE (2013) ALL FWLR (PT. 692) 1797 AT 1818; UBALE vs. DADIYA (2009) ALL FWLR (PT. 489) 598 AT 611; AIGUOKONRUEGHIAN vs. IMARUAGBERU (2015) ALL FWLR (PT. 785) 269 AT 294.

The settled position of the law is that a Court of law not being a charitable organization would not grant to a party or to parties reliefs not claimed by them from Court except where such relief is auxiliary or incidental to the main reliefs claimed as the law is settled that the Court is not a Father Christmas who doles outs gratuitous gifts to litigants even without their asking. See the cases of UNION BEVERAGES vs. OWOLABI (1988) 2 NWLR (PT. 66) 128; OLORUNFUNMI vs. IGE (1993) 8 NWLR (PT. 311) 257 and a host of other authorities on the subject. It is a fundamental principle of our adversarial system of adjudication that the scope of a Courts authority to grant reliefs in causes is circumscribed by the claims made by the Plaintiff as the Court is not in any position to award more than was claimed. In the case of KOTOYE vs. CBN (1989) 1 NWLR (PT. 98) 419, the Supreme Court per KARIBI-WHYTE, JSC, whilst referring to the Courts earlier position on the issue in the case of EKPENYONG & ORS vs. INYANG NYONG & ORS (1975) 2 SC 71, 80, had this to say on the subject;

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this Court declared: The Court is without power to award to claimant that which he did not claim We take the view that this proposition of the law is not only good law but good sense. A Court of law may award less and not more than what the parties have claimed or pleaded by either party.”
On the flip side of the arguments of learned Counsel in this matter, it also bordered on the question of whether the trial Court has the powers to grant consequential reliefs or not; the position here is that a consequential order is not an order that is merely incidental to a judgment, but one which necessarily flows directly and naturally from and consequent upon the judgment. In other words, it must be an order when made, must be seeking to give effect to the judgment already given and must not therefore grant a fresh, unclaimed and unproven Relief. See the cases of OKON vs. ADMINISTRATOR OF CROSS RIVER STATE (1992) 6 NWLR (PT. 248) 473; AWONIYI vs. REG. TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) 522 where the Supreme Court per IGUH, JSC had this to say on the subject;
The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be the subject-matter of a formal executor judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour.”

Against the backdrop of the pronouncements of the Apex Court in the case of AWONIYI vs. AMORC (Supra) and several other decided cases on the subject, the questions that readily beg to be answered here are;
1. The reliefs granted by the Court below in the instant case as the reliefs 3, 4 and 5; whether they are intended to give effect to the judgment of the Court below even though not specifically claimed?
2. By carefully construing the said reliefs 3, 4 and 5; whether they are reliefs found to fall in alignment with the original reliefs claimed in the suit and in contemplation of the parties?
What should be borne in mind, to begin with as part of the background facts to the instant appeal, is that while at the Court below there were claims, there were also counter-claims filed and argued by both sides to the disputes; that the Court below after due consideration of the issues generated and argued before it, granted some of the claims and refused others while it also granted some of the counter claims and rejected the rest. The reliefs 3, 4 and 5 which had earlier on been reproduced in the preceding sections of this judgment were in the opinion of this Court granted by the Court below not without a genuine cause. It would be recalled that the Court below had made a finding of fact at page 198 of the printed records to the effect that the 1st Appellant’s led Executive Committee cannot continue in office as members of the Executive Committee of the OPU as their tenure had expired as at the 15-7-2013. The reliefs 3 and 4 therefore, granted by the Court below was in essence one which had to be granted so as to direct the Respondents as Plaintiffs to conduct an election so as to have the OPUs administration re-constituted within 30 days. As for the germane nature of the relief 4, it was to allow for popular participation in the election of fresh Executives for the OPU; a relief which this Court also finds is intended to give effect to the Reliefs 1 and 2 also granted by the Court below.
For the avoidance of doubt, the said reliefs 1 and 2 are hereby once again reproduced thus;
1. That the defendants are hereby restrained forthwith from parading themselves as Executive members of Obowo Progressive Union, Sokoto State branch.

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2. That the defendants are restrained forthwith from operating or from conducting any banking transactions in respect of the savings account standing in the name of Obowo Progressive Union, Sokoto State branch designated as account number 2522180001120 maintained with United Bank for Africa Plc domiciled at Kano Road Branch Sokoto or maintained at any other branch of United Bank for Africa Plc.
The Court below having therefore restrained the Appellants as Defendants, who were at the time the Executives of OPU, it is only reasonable in the circumstances of this case for the Court to prevent the existence of a vacuum in the effective administration of the OPU, hence the need for reliefs 3 and 4 which are reliefs that flow directly and naturally from and consequent upon the grant of reliefs 1 and 2. This Court is completely of the view that the two reliefs made, naturally seek to give effect to the judgment of the Court below even though not specifically claimed. In granting the said reliefs 3 and 4, this Court is of the view that the position taken by the Court effectively addresses the justice of the case in the given circumstance and that it accords more with common sense because a failure on the part of the Court would have signaled the beginning of a fresh action to stave off the excesses of otherwise recalcitrant members of the OPU who may want to deliberately choose to have a situation of deadlock foisted mischievously on the administration of the OPU. In addition, the dictates of public policy supports the grant of the said orders so long as they are intended to put an end to litigation between the parties in respect of the issues in contention.
In respect of the grant of relief 5 by the Court below, which is a directive to both sides to the dispute to hand over monies and properties/documents of the OPU in their possessions to the newly elected Executives when inaugurated, is a relief that is naturally consequent upon the Courts grant of reliefs 3 and 4. It is also targeted at ensuring total compliance with the Courts grant of reliefs 1 and 2. It is therefore not correct as the Appellants have sought to argue in this Appeal that the grant of reliefs 3, 4 and 5 are not consequential orders made by the Court below. To also argue as learned Appellants Counsel had sought to do that the said reliefs derogate sharply from the claimed reliefs in Paragraphs 30 of the Amended Statement of claim and 61 of the counter claim of the parties is also not correct.
Here is a situation in which both sides to the dispute had taken themselves to the Court below over a tussle for supremacy in the control of the affairs of the Executive Committee of the OPU. Both sides made claims and counter claims and the Court below, in seeking to preserve the sanctity of the fortunes of the OPU had carefully heard evidence and considered the avalanche of the documentary exhibits put at its disposal with the parties claims as the key rudder points or controlling influence of its judgment. To therefore claim as the Appellants have sought to do in this Appeal that the reliefs 3, 4 and 5 made by the Court below sharply derogate from the claims of the parties, is to make a claim which is bereft of any iota of truthfulness.
In respect of the second issue, which at best can be described as a cocktail of inaccuracies and a dramatization of the absurd is next to be dealt with. There may be the need to begin by stating unequivocally that the reliefs of the Respondents as Plaintiffs at the Court below and contained in Paragraph 30(a)-(g) of the Amended Statement of Claim at pages 40-41 of the record of appeal are not declaratory reliefs contrary to the assertions of Appellants Counsel. A Declaratory Relief, sometimes called declaratory judgment of Court is one in which the Court determines

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the rights of the parties without making any orders or awarding damages or ordering that anything be done; usually to address issues of controversies between the parties. It is one in which, the judge after analyzing the controversy between the parties simply issues an opinion declaring the rights of each of the parties involved. As a relief, it is conclusive and legally binding as to the present and future rights of the parties involved. In the instant case, a very careful but calm perusal of the said claims at the Court below will indicate that same are several kilometers away from being declaratory in nature as claimed by the Appellants.
The obvious implication of this therefore, is that the burden of proof required of the Respondents as Plaintiffs is one of a preponderance of evidence and a balance of probabilities. See Section 134 of the Evidence Act, 2011 in respect of this issue. Perhaps, as a related implication of this position is the fact that the burden of proof so placed on the Respondents would be discharged if they adduce cogent and credible evidence that has direct relevance to the subject matter in controversy. See AGBOOLA vs. U.B.A. Plc (2011) ALL FWLR (PT. 574) 74 AT 93. The pertinent question that should therefore be addressed here is whether the Respondents placed before the Court below such credible evidence in proof of their claims against the Appellants as Defendants, which claims the Court below granted in favour of the Respondents as Plaintiffs?
In answer to this obviously rhetorical question, it is instructive to note that from pages 195 to 198, the Court below, in its masterly evaluation of the evidence of the parties made several findings of facts too numerous to recount here, against the Appellants as Defendants which they have failed and/or neglected to Appeal against. The effect of a failure to Appeal against a finding of fact is that the party should be taken as satisfied with the lower Courts pronouncement on them. See the case of EJOWHOMU vs. EDOK-EDER LTD (1986) NWLR (PT.39) 1 and UNDER WATER ENGINEERING CO. LTD vs. DUBEFOU (1995) 6 SCNJ 56. In the final analysis, the Appeal fails and it is accordingly dismissed with a cost of N100,000.00 against the Appellants.
HUSSEIN MUKHTAR, J.C.A.: I had the privilege of a preview of the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. He has meticulously discussed and reviewed the twin issues formulated by the appellant and canvassed in the briefs filed by the parties in this appeal. I agree with his reasoning and the conclusion that the appeal lacks merit. It is accordingly dismissed. I adopt to the consequential order made in the judgment inclusive of costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother, Frederick O. Oho, JCA. My noble lord has exhaustively and competently too stated the facts of this appeal. All the issues canvassed before us were clearly trashed out. The reasons and conclusions tally with my own and which I adopt as mine. I too agree that the appeal lacks merit and it is hereby dismissed. I abide by the consequential orders including the order as to costs.