Appeal

Before Their Lordships

Between

1. ALI ALABA INTERNATIONAL LTD
2. ALI USMAN GEIDAM – Appellants

AND

STERLING BANK PLC
(Substituting EQUITORIAL TRUST BANK LTD) – Respondents

Before Their Lordships

Between

AND

Before Their Lordships

Between

AND

…………………….A…………………….

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling): The applicant’s application dated and filed on the 25th July, 2016, prayed the Court for the following Orders:

Before Their Lordships

Between

AND

Judgment

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment) : The Appellant in this appeal was charged on a one count charge for the offence of Obtaining Money by false pretense punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. The lower Court after taking the evidence of the parties evaluated same and the submission of Counsel, delivered its judgment on 28/02/2022 as found at pages 178-196 of the record of this appeal.

In the said judgment, the Lower Court, presided over by his Lordship, Fadawu Umaru J. of the Borno State High Court, Maiduguri Judicial Division, convicted the Appellant for the offence charged, and sentenced him to Seven years imprisonment. The lower Court which is also the trial Court specifically at pages 194-195 of the record held thus: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false.

The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or goods such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR (Pt. 1734) 103 at 129 to 130. I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution.

On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt. Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ It is this judgment that the Appellant is appealing against. The Appellant filed a Notice of Appeal on 29/3/2022 of 4 grounds found at pages 197-200 of the record.

Although, the fact that culminated into this appeal are not complicated, it is however, the application of the law to those facts that have thrown up some challenges in the case and indeed this appeal.

The case of the Respondent in the lower Court presented through PW1, PW2 and PW3 is that one Engineer Abba Aji Monguno, the nominal complainant wrote a petition against the Appellant to the Economic and Financial Crimes Commission (EFCC) on 6/6/2020, alleging that the Appellant deceived him into parting with the sum of Three Million Naira (N3,000,000.00) as the Appellant used a fake Purchase Order purported to have emanated from the Danish Refugee Council under the guise of executing a contract which was found to be false.

This amounts to a fraudulent act which led to the arraignment of the Appellant by the EFCC, and event ual conviction and sentencing of the Appellant for the offence of Obtaining under False Pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

Conversely, the Appellant’s case is that he made no such representation to the PW1, although, he admitted borrowing the sum of N3,000,000.00 from the nominal complainant, who is the father of PW1 which he could not pay back because thieves burgled his house and took the sum of Six Million Naira (N6,000,000.00) from which the payment to the Appellant should have been made. While not denying that he took money from the nominal complainant, the Appellant denied vehemently that he made a representation to PW1 that he needed the money to execute a contract.

The lower Court did not believe him and therefore, convicted and sentenced him on the ground that the Respondent had proved his case beyond reasonable doubt. Upon filing the Notice of Appeal, and compilation and transmission of the record to this Court, the Appellant filed his brief through his counsel, Ibrahim Haruna Ngada Esq., wherein he formulated 3 issues for determination viz: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence.

Arguing the first issue, Appellant’s Counsel submitted that the lower Court relied absolutely on the oral evidence of PW2 who stated that his investigation revealed that there was no contract and the money transferred to the Appellant’s account was used for a different purpose by sending the money to different accounts, making cash withdrawal and settling premature loans.

Learned counsel further submitted that PW3’s evidence that he analyzed the statement of account of the Appellant which revealed that the Appellant spent the money for purposes the money was not taken was rejected in evidence, and this cannot be relied upon by the Court to convict the Appellant, citing in reliance Alam Oparaji & Ors Vs. Nwosu Ohanu & 7 Ors (1999) 9 NWLR(Part 618) page 270 at 307, Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR(Pt.999).

It is the further submission of counsel that the evidence of contents of a document is not admissible save the document itself, as provided for by Section 125 of the Evidence Act 2011 and the decision of the Court in General Sani Abacha & 3 Ors Vs. Chief Gani Fawehinmi (2000) 6 NWLR (Part 660) Page 228 at 295. Learned counsel submitted further that the trial Court approbated and reprobated at the same time when it rejected the document, but admitted the oral evidence over the document in convicting the Appellant.

Learned counsel urges this Court to resolve the first issue in favour of the Appellant. On issue 2, Learned Appellant’s counsel submitted that the burden of proof of a criminal charge is on the prosecution which is proof beyond reasonable doubt, Learned counsel referred this Court to a plethora of authorities, among which are: The State V. Nathaniel Okpala (2012) 3 NWLR (Part 1287) page 388 at 400-401 paras H-D, Enesi Lukman Abdullahi Vs. The State (2008)17 NWLR (Part 1115) page 203 at 216 Para H, Sabina Chikaodi Madu Vs. The State (2012)15 NWLR (Part 1324) Page 405 at 454-455 paras H-B.

It is the further submission of Counsel that the inability of the nominal complainant, Engr. Abba Aji Monguno to testify, and the none tendering of the purported fake or false Purchase order by the Respondent in the trial Court made the decision of the Court untenable. Learned Appellant’s counsel anchored this submission on the evidence of PW1 at page 162 line 17 of the record to the effect that no document was ever given to the nominal complaint by the Appellant.

On Exhibit B, Learned Counsel submitted that it is documentary hearsay and that by Section 38 of the Evidence Act 2011, is inadmissible and not to be relied upon by the Court. He also submitted that the evidence of PW1 was mere allegations and suspicions and PW2 and PW3 inability to investigate the robbery incidence that affected the Appellant is fatal to the case of the Respondent and the decision of the Court.

The Respondent according to counsel is unable to prove beyond reasonable doubt the ingredients of the offence the Appellant was charged for and therefore, the conviction and sentence of the Appellant was wrong. ​ In his effort to further extricate the Appellant from the rope of conviction on his neck and the sentence, Learned Appellant’s Counsel submitted that the evidence of the Respondent’s witnesses could not establish the offence, and the investigation was casual as PW2 and PW3 admitted not writing to the Danish Refugee Council to confirm whether there was a fake order or even if the said Ibrahim Mbasuwa was a contractor as explained by the Appellant.

He urged this Court to hold that there was no false Pretence. Learned Appellant’s Counsel did not only submitted that the Respondent could not establish false pretence and the element of fraud, but also that the case of the Respondent is based purely on mere suspicion which has no place in criminal liability referring to University of Calabar V. Franklin C. Ugochukwu & 9 Ors (2007)17 NWLR (Part.1063) page 248 at 264 paras B-G.

On the final issue, Learned Counsel submitted that the burden of proving guilt is on the Respondent and this burden does not shift, relying on Federal Republic of Nigeria Vs. Mohammed Usman & Anor (2012) 8 NWLR (Part 1301) page 141 at 156-157 paras H-A, Corporal Desmond Ononuju Vs. The State (2014) 6 NWLR (Part1409) page 345 at 389-390 paras G-A.

It is the submission of counsel that the trial Court shifted the burden to the Appellant to prove his innocence when it asked him to call his friend, Ibrahim Mbasuwa to tender the document from Danish Refugee Council, or any document from the police or call a neighbor to prove that the Appellant’s house was burgled. Learned Counsel for the Appellant finally urged this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.

The Respondent through Ojogbane Amade Johnson Esq., filed its brief on 05/7/2022 and therein formulated a sole issue for determination viz; Whether the learned trial judge was right to have convicted the Appellant on a one-count charge of obtaining under false pretense and sentenced to seven years imprisonment under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act 2006.

In his submission on this sole issue, learned Respondent’s Counsel invited this Court to take judicial notice of the combined effects of Sections 1(1) (a), and Section 20 of the Advanced Fee Fraud and Other Offences Act, 2006 pursuant to Section 112 of the Evidence Act 2011, together with the case of Brilla Energy Ltd. Vs.

F.R.N (2018) NWLR part 1645, while listing the ingredients of the offence of obtaining by false pretense, and urged this Court to dismiss the appeal. ​ In respond to the submission of the Appellant in paragraphs 4.1.1 and 4.1.2 of his brief, the learned Respondent’s counsel submitted that PW2 and PW3 testified as operatives of the EFCC, and were competent to testify as their evidence were based on their investigation, and such evidence cannot be hearsay, citing Interdrill (Nig) Ltd Vs. United Bank for Africa Plc (2017) ALL FWLR (pt.904) SC Page 1177 at 1193 paras E-H.

Relying on the evidence of PW1, PW2 and PW3, the documents tendered in Court, learned Respondent’s Counsel submitted that the Respondent has discharged the burden placed on it by law to prove the guilt of the Appellant beyond reasonable doubt which its need not prove by a host of witnesses. It is the further submission of learned counsel that the case of Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR (Pt. 999) cited by the learned Appellant’s counsel was irrelevant as the trial judge did not rely on the rejected document in his judgment.

Learned Respondent’s Counsel urged this Court to take judicial notice of Sections 1,3,4,5, 6, 7 and 122(2)(a) of the Evidence Act 2011 which imposes an obligation on the Court to admit evidence and facts that are relevant to the fact in issue which was relied upon by the trial Court. Learned Counsel also referred this Court to pages 163-165 of the record and further reviewed the evidence of PW1 and PW2 while submitting that Exhibit B does not amount to documentary hearsay.

Learned Counsel urged Court to dismiss the appeal and affirm the decision of the trial Court. ​ The submissions of counsel on behalf of parties to this appeal revealed the precise nature of the facts of the case. The Appellant was charged, tried and convicted for an offence contrary to and punishable under Section 1 (1)(b) and 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.

The charge in summary is that the Appellant made a representation which he knows to be false to the effect that he had a contract or a Purchase Order from Danish Refuge Council, upon which he took N3,000,000 from one Egnr Abba Aji Monguno for the purpose of executing the contract which was alleged to be faked and probably non-existing. In simple language, the Appellant allegedly collected the said money on false Pretence. The lower Court subjected the Appellant to full trial, took evidence, and finally convicted and sentence the Appellant for the offence charged.

The Appellant is now challenging his conviction on the premise that the Respondent could not prove the offence for which he was charged. Before I look at the merit of this appeal, I should reproduce the provision of the law the Appellant was charged, convicted and sentenced for.

The section provides thus: “Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud – (a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or (b) induces any other person, in Nigeria or in any other country, to deliver to any person; or (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act… (3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.” From the above provision, the prosecution must prove the element of false pretence with the intention to defraud against a defendant for any conviction to stand.

See Ikpa vs State (2017) 4 NWLR (pt 1609) 175, Onwudiwe vs FRN (2006) LPELR-2715 (SC), Adeniji vs FRN(2021) LPELR-52818 (CA). The trial Court had convicted and sentenced the Appellant which translate to mean that the Court was satisfied with the evidence before it that the Respondent had proved the ingredient of the offence beyond reasonable doubt by either direct evidence, circumstantial evidence, and or confessional statement.

My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law.

See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. In doing so, I also must make a point very clear which is that, it is of no moment to inquire on the evidence as to whether the Appellant’s house was burgled into and the sum of N6,000,000.00 stolen. Also from the facts of the case and the charge against the Appellant, it is not relevant at all whether the Appellant paid back the money or the reasons he could not pay back.

The offence is related to when and why the Appellant took the money from PW1’s father and maybe, what he did with the money but certainly, not whether he has paid or why he has not paid. All the reference in the judgment and the submissions of counsel on whether the case of the burglary was reported to the police and on whom lies the burden to prove that is a completely out of place here. I certainly will not engage in such a wasteful exercise.

I will rather deal with issues relevant to this appeal. ​ In this regard, I wish to adopt the three issues by the learned Appellant formulated ’s counsel in his brief. These issues, to my mind, are apt and covered the complaint contained in the grounds of the Appeal. However, before I do so, I will state some general principle of criminal law that will assist me in deciding this appeal. Whether I will allow or dismiss this appeal depends solely on whether the trial Court applied the established principle of criminal law in deciding the case before it.

I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent.

The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416.

I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107.

The duty on the Respondent to prove that the Appellant is guilty of the offence he is charged for must be either by direct evidence, circumstantial evidence or confessional statement. See State vs Sadiq (2022) 5 NWLR (pt 1824) 413, Okiemute vs State (2016) 15 NWLR (pt. 1535) 297.

Once again and for the avoidance of doubt, I must state that the burden to prove that the Appellant committed the offence he was charged for is solely on the shoulders of the Respondent. The standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt.

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs.

The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held: “Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.

In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.

As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.

See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.

From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.” Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held: “Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt.

One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.” The criminal justice system will rather let 10 guilty people go scot-free than for one innocent person to be wrongly convicted. This is why conviction would not be based on suspicion no matter how grave but on clear evidence pointing to the accused as the person who indeed, committed the offence.

SeeIgbikis vs State (2017) 2-3 S.C. (pt 1) 78, State vs Ajayi (2016) LPELR-40663(SC). In Udor vs State (2014) LPELR-23064(SC) to drive home this point the apex Court held: “The law is indeed trite that suspicion, no matter how strong it is, cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See the State v. Ogbubunjo (2001) 2 N.W.L.R. (Pt.698) 576.” Per MOHAMMED, J.S.C.

This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA).

Let us return from our undergraduate days and specifically address the issue. In this respect, it is very important to roll out the ingredients of the offence the Appellant was charged for in the lower Court. I had mentioned above that clearly the Respondent would have proved that there was false pretence with intention to defraud. The law under which the Appellant was charged defined what will amount to false pretence.

I quote same as follows in Section 20 of the Interpretation Section of the Act as follows: “‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” To amount to an offence of obtaining by false pretence, under this section as expressed in so many cases, the Respondent ought to prove the following ingredients as stated in Ezeani vs FRN (2019) LPELR-46800(SC) where the apex Court held as follows: “Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004.

The law states as follows: “Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud: (a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine….

On the counts of obtaining by false presence, the transaction has shown clearly as follow: 1. That there was a pretence. 2. That the pretence emanated from the accused persons including the appellant. 3. That the pretence was false. 4. That the appellant and his co-accused person knew that it was false. 5. That there was an intention to defraud 6. That the monies obtained from the PW1 was capable of being stolen, and 7.

That the appellant induced the owner of the money to transfer his whole interest in the property……” Per OKORO, J.S.C One more case directly on the ingredients of the offence will not hurt. This is the case of Darlington vs FRN (2018) 11 NWLR (pt 1269) 152, the apex Court held:

“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts

I. A pretence is made by way of representation.

II. From the accused person. III. To the person defrauded. IV. The representation is a pretence. IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person. VIII. The property transferred is capable of being stolen i.e. is as portable.

These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.” Per EKO, J.S.C.

On the strength of the above, the decision of the lower Court will only be affirmed if those elements are proved beyond reasonable doubt by either direct evidence, circumstantial evidence or through a confessional statement. At this point, I will reproduce the issue for determination in this appeal in the Appellant’s brief which I hereby adopt. The issues are: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence. RESOLUTION ISSUE ONE On issue 1, I am of the opinion that the decision of the trial Court was not based on rejected evidence as the Appellant’s counsel submitted.

It is trite law that a document rejected by a Court has no life and cannot be relied upon by any Court in arriving at a decision. The rejected document is of no relevance whatsoever in law and lacks probative value. See Amgbare vs Sylva (2009) 1 NWLR (pt 1121) 1, Airtel Network Ltd vs Plus Ltd (2020) 15 NWLR (pt 1747) 235, Emokpae vs Stanbic-IBTC P.M Ltd (2015) 17 NWLR (pt 1487) 57. I have gone through the judgment, and I am comfortable in holding that the decision of the Court was not based on the rejected document but rather on the evidence of PW1, PW2 and PW3.

What constitute evidence before a Court are oral, documentary or real evidence, and any of the parties before a Court can establish his case by any of the evidence listed above.

I am not aware of any law that says that oral evidence can only be relied upon when it corresponds with a document.

Although, in law, a type of evidence for instance, documentary evidence, can carry more weight than oral evidence, but a party can still establish his case by oral evidence alone in the absence of any documentary evidence. The fact that the document was tendered and rejected does not make any oral evidence on the content of the document inadmissible as Appellant’s counsel wants us to believe.

The position of Appellant’s counsel in this front, is new learning to me, a point I do not want to learn because, it does not represent the correct legal position. Although there is a common saying that ‘we learn everything’, but certainly not what does not represent the correct and current legal position in an issue.

What the law requires is that once a document has been tendered and admitted, no oral evidence will be allowed which is at variance with the documentary evidence. See Ibrahim vs Abdallah & Ors (2019) LPELR-48984(SC), Bello vs Idris (2022) LPELR-56730 (CA).

In the instant case, there is no documentary evidence which can be compared with the oral evidence to show any variance. The Respondent’s witnesses are at liberty to testify even if the evidence is on all force with the content of the rejected document. It is only wrong if the Court base its judgment on the document. In this appeal, the judgment is based on the oral evidence and not the rejected document. To buttress this point I will quote again the decision of the trial Court at pages 194-195 of the record.

This is what the Court said: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false. The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or good, such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR(Pt. 1734) 103 at 129 to 130.

I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution. On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt.

Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ There is nothing in this portion of the judgment or any part of the 25 pages judgment which suggest that the lower Court relied on the rejected document. While I am firmly of the opinion that the decision of the trial Court is not based on the rejected document, I will therefore, resolve this issue in favour of the Respondent.

ISSUES TWO & THREE I will address issues 2 and 3 together. The question are whether the Respondent proved its case at the trial Court beyond reasonable doubt and whether the Court appropriately placed the burden of prove in the right place? I have stated above the ingredients of the offence the Appellant was charged with, and for which he was convicted and sentenced. I have also stated that the Respondent has a duty in law to prove beyond reasonable doubt all the ingredients of the offence.

The Respondent case at the trial Court as prosecution is that, the Appellant made a false presentation to the father of the PW1 that he has a contract with Danish Refugees Council which made him depart with N3,000,000.00 to enable the Appellant execute the contract. By the wordings of the charge sheet, the Appellant was alleged to have used a fake purchase order to carry out this deceptive act. The fake purchase order was falsely and fraudulently presented as original to PW1’s fatherwhich he acted on.

This the Appellant denied of ever presented any purchase order to the nominal Complainant, Engineer Abba Aji Monguno but rather, told him to borrow to the Appellant, some money for him to carry out a contract awarded to his friend for which the said Abba Aji Monguno was to get Three Hundred Thousand Naira (N300,000) as interest or profit from the loan. The question here therefore is whether the evidence before the trial Court lane toward obtaining money by false pretence, based on the alleged fake purchase order or on the fact that it was a loan given to the Appellant.

It is my opinion that if the trial Court had agreed with the Appellant that it was a loan he secured from Engr. Abba Aji Mongunor, the decision will not have gone the way it did. The decision went the way it did because the Court is of the view that the Appellant made a false representation to make the nominal Complainant part with his N3,000,000.00. What is paramount here therefore, is the status of the purchase order presented to the nominal Complainant.

The question therefore is, whether there is sufficient evidence before the trial Court that such a representation was made by the Appellant to Abdulwahab Abba Aji, the PW1 or his father, the nominal complainant. I must state without any equivocation that the Respondent has the duty and indeed burden to show before the Court that a purchase order was indeed, shown to the nominal complainant which turned out to be fake. This is a key factor in determining this appeal.

The operative word is ‘fake’. For anything to be fake, there must be an original. The purchase order will be declared fake after comparing same with the original.

I must make the point the Appellant has ably made through his counsel that there is no document before the Court indicating or looking like a purchase order. The Appellant has also rightly in my view challenged the investigation of the PW2 and PW3 as not being thorough when it did not contact Danish Refugee Council to know whether there was a contract given to either the Appellant or the friend of the Appellant whom the Appellant said got the contract from. The fact that the Appellant was unable to produce his friend Ibrahim Mbasuwa is not damaging to his case.

This will only become relevant if the Respondent had produced or given satisfactory evidence that the Appellant presented fake purchase order to the PW1. The statement written by the Appellant which are Exhibits A, A1-A5 are not admission or confessions as they deny the offence the Appellant was charged for. The Appellant admitted receiving the money from PW1 but as loan, and not on any representation of falsehood with intention to defraud. In the circumstance, the burden is on the shoulders of the Respondent to have shown before the Court the ingredients of the offence.

I have gone through the judgment of the trial Court, I am unable to see where the Court gave reasons for the finding that all the ingredients of the offence has been proved. With due respect, no thorough evaluation was made of the evidence before the trial Court. I will at this point look at the entire record of the appeal viz- vis the evidence of the Respondent in determining whether the lower Court was right in its findings. In doing so, I am conscious of the fact that I will not interfere with the finding of the lower Court except it is perverse.

The case of the Respondent is founded on the evidence of PW1, PW2 and PW3. The evidence of PW1, Abdulwahab Abba Aji is found at pages 160-163 of the record. The PW1 made no mention of any purchase order presented to him talkless of its being fake.

His viva voice evidence at pages 160 and 161 of the record on the point states thus: “The accused called me sometime around 5th September, 2019 and asked me if I have money as he has secured a contract with Danish Refugee Council and that he need the sum of N2,000,000.00k…On 18/9/2019, that is after two weeks that the accused was to return the money the accused asked me to add N1,000,000.00.00K on the basis that the contract he is executing is at 80% completion and that he needs the N1,000,000.00k to complete the contract on the same terms and condition.” There is nothing in the above evidence that talked about any Purchase Order presented to the PW1.

This is important because the case of the Respondent against the Appellant is principally founded on alleged fake purchase order. The witness gave no evidence of purchase order presented to the father of PW, that is the nominal complainant, to convince him part with the money. PW2 is Emmanuel Emeka Ibeneme, an operative of the EFCC who was part of the team that investigated the petition against the Appellant marked as Exhibit B.

The evidence-in-chief of the PW2 also made no mention of purchase order, as all the witness said as his investigation revealed that the sum of N3,000,000.00 was transferred to the Appellant by the PW1 father for the purpose of a contract which was not in existence. The Appellant used the money for other purpose instead of executing the alleged contract which was found to be non-existing. The PW2’s investigation revealed that there was no contract issued to the Appellant.

He categorically said at page 165 of the record that: “There was no contract the accused only used that medium to obtain money from the complainant by false pretence.” Under cross–examination, PW2 admitted that his investigation did not take him to Danish Refugee Council because the Appellant did not present any document. In spite of this, the Appellant was charged for obtaining money under false pretence on the premise of presenting fake purchase receipt. This is strange. PW3 is an official of EFCC who also investigated the petition against the Appellant.

His evidence found at pages 166-169, is not radically different from PW2’s evidence. All that the witness did was to analyze the response from Guaranty Trust Bank with respect to the Appellant’s bank account domiciled there, and discovered that the money the Appellant received was not used for the purpose it was received. The witness did not take part in the final investigation, and under cross-examination he said he is not ‘aware if the accused (sic) facilitated a contract. I did not partake to the conclusion of the investigation’.

The documents attached to Exhibit B only shows that the sum of N3,000,000.00 was paid to the Appellant which he did not deny. It also shows that the Appellant tried to payback some amount out of the money. There is no evidence apart from the oral evidence that the money was used for other purpose. Once again there is nothing in his evidence relating to presentation of fake purchase order. It would appear to me that the way the charge was couched is such that the falsehood is based on the allegation of presentation and using of a fake purchase order.

This implies in my view a document which is a purchase order must be tendered. None of the Respondent’s witnesses mentioned anything about purchase order or the nature of the contract they claimed Appellant told the PW1’s father he had from the Danish Refugee Council. I will now turn to the evidence of the Appellant before the trial Court. His evidence is that he told the PW1 that he needed money to join someone by name Ibrahim Mbasuwa to execute a contract.

In his testimony, Appellant said in his evidence In-Chief at page 175 of the record that: “… I told the officer that I borrowed the money to join with a friend to secure a contract. I was shown the petition which I read I told the officer I had no purchase order… I did not obtain money by false pretence.” Under cross examination, Appellant said: “The N300,000.00k told (sic) was for the purpose of executing a contract.

I did execute the contract and I have no documents for the contract.” ​ I have gone through the above evidence there is no evidence whatsoever that fake purchase order was presented which misled the PW1’s father. While PW1 evidence is that the Appellant told him he needed the money to execute a contract he got from Danish Refugee Council, the Appellant said that he told the PW1 that he needed the money to jointly execute a contract with a friend.

In the light of this conflicting evidence, it is important to know how the trial Court evaluated the evidence to come to the conclusion that the Respondent proved its case beyond reasonable doubt. By the charge, the Respondent relied on a fake purchase order which was not part of the evidence of all the parties, and that the money was not used for the purpose it was taken for. There is no clear evidence on that apart from the PW2 and PW3 saying so.

The evidence of PW2 and PW3 will be inadequate in the light of the evidence of the Appellant that he used the money for the purpose he took same from the PW1’s father. There is no cogent evidence from PW2 and PW3 to prove that the Appellant actually gave the money to the people they claimed he gave the money to different from the main purpose it was given for. Since there is no such documentary evidence may be the counsel to the Respondent would have established same through skillful cross examination which he failed and did not.

Among the three ways of establishing criminal liability, it is only by circumstantial evidence that the Respondent can attempt to prove its case against the Appellant. As I had mentioned above, the question is not whether the Appellant collected N3,000,000.00K from PW1’s father or whether it was for the purpose of executing a contract, but whether the Appellant obtained the money under false pretence with intention to defraud by presenting or using a fake purchase order. The Appellant said he jointly executed a contract with the money with his friend who he could not produce.

The Respondent’s witness especially PW2 and PW3 said there was no contract. The question is how did the Respondent’s officers know that there was no contract when their investigation did not take them to Danish Refugee Council where the Appellant claimed his friend Ibrahim Mbasuwa got the contract from. This is even on the face of the glaring evidential on record when the Appellant gave the name of the company and the name of his partner with whom he was going to execute the contract. The EFCC did not investigate this, and failed in that respect. This is fundamental.

In the circumstances of this, the benefit of doubt should have to be resolved in favour of the Appellant. The Respondent having been unable to show that a fake purchase order was shown to PW1’s father, and that the money received by the Appellant from the PW1 was used for other purpose, the trial Court was wrong to have convicted the Appellant. The burden to establish the guilt of the Appellant is on the Respondent.

However, for the Respondent to allege that the Appellant did not produce his friend, Ibrahim Mbasuwa because the Appellant feared his testimony may work against him, is to turn the law upside down by asking the Appellant to prove his innocence.

Under no circumstance in a case of this sort in our accusatorial system of criminal administration and trial is the defendant required to prove his innocence. See Okoh vs State (2014) 2-3 S.C 184. In the recent case of Ibrahim vs State (2022) LPELR 58001 (SC), the Supreme Court on this point held: “Generally, there is no duty on the accused/Appellant to prove his innocence since under Nigeria system of criminal justice, there is no question of accused proving his innocence before the law Court hence during a trial, an accused may not utter a word as he is not bound to say anything.

The duty is on the prosecution to prove the charge against the accused beyond reasonable doubt whether or not the accused says anything. See Igabele v State (2006) 6 NWLR (Pt 975) 100 at 108, Williams v State (1992) 8 NWLR (pt 261) 515 at 516-517, Section 137 Evidence Act, Alonge v Inspector General of Police (1959) NSCC 169; (1959) 4 FSC 203.

The above principle is further enhanced in the provisions of the Constitution of the Federal Republic of Nigeria, which Section 36(5) of the 1999 provides thus: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that noting in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” Per PETER-ODILI, J.S.C. I resolved issues 2 and 3 in favour of the Appellant.

It is my considered view that the trial Court was wrong to have convicted the Appellant for the offence he was charged as the Respondent was unable to prove beyond reasonable doubt that the Appellant indeed, committed the offence. No Court could even depend on circumstantial evidence to convict a person when such evidence does unequivocally point to him as the person who committed the offence.

In the absence of clear evidence that the Appellant made false representation on the existence of a contract by presenting a fake purchase order with the intent to defraud PW1’S father, the conviction cannot stand. This appeal is therefore allowed and the judgment of Fadawu Umaru J., of the Borno State High Court delivered on 28/2/2022 wherein the Appellant was convicted and sentenced to 7 years imprisonment is set aside.

I cannot in good conscience affirm the judgment. The Appellant, Isaac Harami Ndahi is hereby discharged and acquitted.

JUMMAI HANNATU SANKEY, J.C.A.: I had the benefit of reading in advance the lead judgment delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his Lordship’s reasoning and conclusion. As has been stated in the leading judgment, the Appellant was arraigned before the lower Court on a one-count charge of obtaining money by false pretences punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. He pleaded not guilty to the charge and the Respondent adduced evidence through three witnesses in proof of the charge.

The Appellant also testified in his defence and called one witness. At the close of trial, the lower Court found the Appellant guilty as charged and sentenced him to seven years imprisonment. Dissatisfied, the Appellant filed an appeal to this Court wherein he complained on three grounds. The ingredients to prove a charge of obtaining money by false pretences punishable under Section 1(3) of the Act (supra) is as set out in the case of Ezeani V FRN (2019) LPELR-46800(SC) per Okoro JSC and Darlington V FRN (2018) 11 NWLR (Pt. 1269) 152 per Eko JSC.

The ingredients are – 1. that there was a pretence; 2. that the pretence emanated from the accused person; 3. that the pretence was false; 4. that the accused person knew it was false; 5. that there was an intention to defraud; 6. that the money obtained from the victim was capable of being stolen; and 7. that the accused induced the owner of the money/victim to deliver or transfer money or interest in property to the accused.

Upon examination of the evidence presented to the trial Court in satisfaction or proof of the above ingredients, PW1 was the son of the alleged victim, Engineer Abba Aji Monguno. His evidence was clearly less than satisfactory as he was neither the person who dealt directly with the Appellant in respect of the sum of N3,000,000.00 (Three Million Naira) received nor did he present the alleged fake/false Local Purchase Order based upon which the complainant gave the Appellant the money, at the trial Court.

PW2 and PW3 were officers of the EFCC who investigated the allegation made against the Appellant. However, apart from hearing from the complainant and taking the statement of the Appellant, which was not confessional, their investigation did not extend to the Danish Refugee Council to confirm whether or not it had a contract with the Appellant to establish the falsity or otherwise of any representation made to the complainant.

As a consequence of such shoddy investigation, the Respondent failed to establish the criminal intent of the offence alleged, also referred to as the mens rea in the actions of the Appellant when he requested and was given the sum of N3, 000, 000.00 by the nominal complainant. On his part, the Appellant did not deny receiving money from the complainant. His position however was that it was not done under false pretences, but that the money was given as a loan which he requested for to execute a contract.

Since the Respondent failed to prove otherwise, it failed to prove the charge against the Appellant. He is therefore entitled to an acquittal. It is therefore for these reasons, and for the fuller reasons in the lead Judgment, that I also allow the appeal. I abide by the consequential orders made therein.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the judgment of my learned brother, EBIOWEI TOBI, JCA and I am in concord with his decision that the appeal has merit and should be allowed. I allow the appeal and join my brother in setting aside the judgment of the lower Court wherein the Appellant was convicted and sentenced to seven years imprisonment. The Appellant is discharge and acquitted.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the High Court of Federal Capital Territory Abuja Division, Coram: O. O. Goodluck J, in Suit No. FCT/FIC/CV/4724/2011: Mrs Abe Ethel Ndidi V. Shammah Global Trades Limited & Ors delivered on 30/4/2019, in which the claims of the 1st – 2nd Respondents as Claimants against the Appellant as Defendant were granted. ​The Appellant was peeved with the said judgment and had appealed against it vide her Notice of Appeal filed on 15/6/2014 on Six Grounds of appeal.

See pages 456 – 462 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 19/11/2018. Subsequently, with the leave of Court an Additional Record of Appeal was transmitted to this Court and was deemed properly transmitted on 7/12/2021. The 1st – 2nd Respondents filed a Notice of Preliminary Objection on 3/3/2020. The 4th Respondent also filed a Notice of Preliminary objection 7/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 26/9/2022.

The Appellant was represented by Ananyo Adibe Esq. The 1st and 2nd Respondents were represented by B. K. Barikpoa Esq. The 3rd and 5111 Respondents were represented by L. O. Akangbe Esq. The 4th Respondent was represented by Florence Samuel Esq. SUCCINCT STATEMENT OF FACTS On 24/7/2006, the 1st and 2nd Respondents as Claimants commenced Suit No. FHC/ABJ/CS/288/2006 against the Appellant, the 3rd and 4th Respondents as Defendants before the Federal High Court, Abuja Division.

However, on 9/11/2010, upon the application of the counsel for the 1st and 2nd Respondents, the Federal High Court, per Aula J. (as he then was but later CJ) transferred the said Suit to the High Court of the FCT, where the Suit was reconstituted as FCT/IIC/CV/4724/2011 and served on all the parties. The Appellant as the 1st Defendant before the lower Court chose to ignore the processes and all the hearing notices served on her, although the 3rd and 5th Respondents filed their joint Defence to the Suit, though at the trial they did not call lead any witness.

However, on 17/5/2012, the name of the 4th Respondent was struck out on the application of 4th Respondent, who was the 3rd Defendant before the lower Court. The 1st and 2nd Respondent was therefore, not defended by any of the adverse parties, including the Appellant. ​ The substance of the case of the 1st and 2nd Respondents inter alia was that the Appellant was the allottee of Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja vide a Letter of Allocation issued in her favour by the 3rd Respondent.

However, following the Appellant’s agreement to sell her allocation letter to the 1st and 2nd Respondents, the Appellant handed over all the particulars of the said property to the Its and 2nd Respondents, for which the 2nd Respondent thereafter paid the sum of N700, 000. 00 to the Appellant as consideration for selling off her interest in the said property.

On 14/2/2005, the Appellant notified the 1st and 2nd Respondents that she has not only taken up possession of the property but that she had also rented it out for a term of 2 years and collected the sum of N500. 000. 00 from the tenant, but it later turned out that the Appellant actually took physical possession of the property without surrendering it to the 1st and 2nd Respondents.

All efforts by the 1st and 2nd Respondents to take possession of the property as owners as well as to deal with the Appellant’s mortgagors, the 4th Respondent was to no avail as their attempts to take over possession were resisted by the 4th Respondent as well as the 3rd Respondent, the Ministry of Housing, Lands and Urban Development, the Developers, hence the Suit by the 1st and 2nd Respondents to take over possession of the said property. See pages 1 – 24, 84 – 94, 102 – 108 and 329 – 333 of the Record of Appeal. See also pages 187 – 188 of the Additional Record of Appeal.

Before the lower Court, the 3rd and 5th Respondents who had initially filed their joint Defence did not also call any witness at the trial and the matter proceeded to trial and at the end of which judgment was entered in favour of the 1st and 2nd Respondents against the Appellant. On the part of the Appellant, she neither appeared nor defended the claims of the 1st and 2nd Respondents against her and the matter proceeded to trial and at the end of which judgment was entered against the Appellant in favour of the 1st and 2nd Respondents, hence, this appeal.

See pages 442 – 455 and 456 – 462 of the Record of Appeal.

ISSUES FOR DETERMINATION In the Appellant’s brief, three issues for determination were formulated as follows: 1. Whether the 1st and 2nd Respondents can acquire title to a mortgaged property without the consent of the Mortgagee first sought and obtained? (Distilled from Grounds 2 and 3) 2. What is the legal implication of the failure of the 1st and 2nd Respondents to obtain the Mortgagee’s consent before the alleged transfer of title of the property, subject matter in dispute? (Distilled from Ground 4) 3.

Whether the failure to serve the originating process and Hearing Notices on the Appellant, robbed the lower Court of the jurisdiction to entertain the matter? (Distilled from Ground 1) In the 1st and 2nd Respondents’ brief, three issues for determination were formulated as follows: 1. Whether in view of the peculiar facts of this case especially Exhibit PW1F, the Appellant, Mortgagor can alienate her interest in the Mortgaged property without the consent of the Mortgagee, in order to liquidate her indebtedness to the Mortgagee? 2.

Assuming but not conceding that the consent of the Mortgagee was crucial before the sale, can the Appellant after willfully selling her property and accepting payment, later turn around to repudiate the contract in the absence of fraud? 3. Whether the 1st and 2nd Respondents will be held responsible where the Appellant was served with the Originating processes and Hearing Notices but chose not to appear in Court? In the 3rd and 5th Respondents’ brief, two issues for determination were formulated as follows: 1.

Given the circumstances of the Suit and materials before the lower Court, whether the complaint of the Appellant that it was not served with the Originating processes in the Suit thereby robbing the lower Court of its jurisdiction is valid? 2. Considering the evidence before the lower Court, whether it was right in holding that the Appellant had sold her interest in Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja to the 1st and 2nd Respondents? My Lords, I have reviewed the pleadings and evidence of the 1st and 2nd Respondents, who alone led evidence at the trial before the lower Court.

I have also scanned through the entire processes and proceeding before the lower Court leading to the judgment appealed against by the Appellant, noting carefully all the proofs of service of every process in the Suit before the lower Court.

I have also considered the submissions of learned counsel for the parties in the light of the judgment of the lower Court, and I am of the view that the proper issues for determination in this appeal are the three issues for determination as formulated in the Appellant’s brief, a consideration of which would involve a consideration of the three issues as formulated in the 1st and 2nd Respondents’ brief as well as the two issues formulated in the 3rd and 5th Respondents’ brief.

However, I shall commence with the consideration of the Appellant’s issue three, together with the 1st and 2nd Respondents’ issue three as well as the 3rd and 5th Respondents’ issue one. Thereafter, and if need be, depending on the resolution of the issue three, I shall proceed to consider the Appellant’s issues one and two together with the 1st and 2nd Respondents’ issues one and two as well as the 3rd and 5th Respondents’ issue two and resolve all of them together in one fell swoop.

But first there are some preliminary objections, which being in the nature of jurisdictional issues, I shall proceed to consider anon! 1ST AND 2ND RESPONDENTS’ NOTICE OF PRELIMINARY OBJECTION By a Notice of Preliminary Objection, the 1st and 2nd Respondents are challenging the competence of this appeal on the grounds that pursuant to the provisions of Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), leave of Court was required before the Appellant can competently appeal against the judgement of the lower Court, and therefore, the failure by the Appellant to seek and obtain the prior leave of the Court before filing the Appeal rendered the Appeal incompetent and liable to be dismissed and or struck out.

The Notice of preliminary objection was supported by an Affidavit deposed to by one, Barikpoa Barabari Kiasira, a legal practitioner in the Law Firm of the Solicitors to the 1st and 2nd Respondents to the effect that no leave was sought and obtained before the filing of the Notice of Appeal by the Appellant against the judgment of the lower Court.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS In his submissions in support of the preliminary objection, learned counsel for the 1st and 2nd Respondent had submitted inter alia that the judgment appealed against for which the Appellant did not contest before the lower Court amounts in law to a specie of consent judgment and contended that in law the Appellant required the prior leave of this Court to competently file an appeal against the judgment of the lower Court entered in such circumstances and urged the Court to hold that the failure of the Appellant to do so rendered the Notice of Appeal field without prior leave incompetent and to uphold the preliminary objection and dismiss and or strike out the appeal for being incompetent.

Counsel relied on Alhaji Shuaibu Abdulkarim V. Incar (Nig.) Ltd (1992)7 NWLR (Pt. 251) 1 AT p. 16, Dr. P. A. C. Agwarangbo & Ors V. Winston Efioni Nakande (Carrying on Business under the name and style of Winston Nakande & Company (2000) 9 NWLR (Pt. 672) 341 AT p. 358, Chief Saro Manson & Ors V. Halliburton Energy Services Nig. Ltd & Or (2007)2 NWLR (Pt. 1018) 211 AT p. 234.

APPELLANTS’ COUNSEL SUBMISSIONS My Lords, surprisingly the learned counsel for the Appellants despite the service on him of the 1st and 2nd Respondents’ preliminary objection and brief, made no iota of any submissions in response to submissions in support of the preliminary objection by the 1st and 2nd Respondents.

RESOLUTION OF 1ST AND 2ND RESPONDENTS’ PRELIMINARY OBJECTION My Lords, in law the failure of the Appellant to make any counter submissions to the challenge of the competence of the appeal simply amounts to a concession by the Appellant that indeed the appeal is incompetent as alleged by the 1st and 2nd Respondents. This is so because in law where one party is duly served with the arguments of the other party but he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr.

Arthur Nwankwo & Ors V. Alhaji Umaru Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was now CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V.

Aderinoye (2013) 50 WRN 111. Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Elephant Group Plc V.

National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. See also Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

It is only in deference to the above position of the law and the overriding need to do substantial justice that I intend to proceed to consider and resolve the challenge to the competence of the Notice of Appeal on the allegation of failure to obtain the prior leave of this Court. Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent.

I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents.

The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgcwill. In the light of the above position of the law, the preliminary objection of the 1st and 2nd Respondents lack merit and it is hereby overruled and dismissed in its entirety.

RESOLUTION OF THE 4TH RESPONDENT’S PRELIMINARY OBJECTION The 4th Respondent had by a Notice of Preliminary objection challenged the competence of the Notice of Appeal on the grounds that the 4th Respondent is not a proper and necessary party to this appeal and therefore, the Court lacks the jurisdiction to entertain the appeal.

The learned counsel for the Appellant had no objection to the preliminary objection of the 4th Respondent not being a necessary party to this appeal, its name having since been struck out by the lower Court on its application before the proceedings leading to the delivery of the judgment against the Appellant. My Lords, I have scanned through the proceedings of the lower Court and it is true that on 17/5/2012, the name of the 4th Respondent was struck out by the lower Court on the application of 4th Respondent, who was the 3rd Defendant before the lower Court.

I therefore, do not see the necessity for the lengthy submissions by the learned counsel for the 4th Respondent in this appeal merely to make this, though salient, but uncontested issue. The 4th Respondent is not a necessary party to this appeal, it was also not a necessary party to the proceedings before the lower Court. The 4th Respondent’s preliminary objection is therefore, an open and shut case without any disputation. In the circumstances therefore, the preliminary objection of the 4th Respondent, in so far as it relates to it alone, has merit and it is hereby upheld.

Consequently, the name of the 4th Respondent is hereby struck out from the Record of this Appeal. See Green V. Green (1987) 3 NWLR (Pt. 61) 480. See also Emecheta V. Sowemimo & Ors (2018) LPELR – 50399 (CA) per Sir Biobele Abraham Georgewill JCA.

ISSUE THREE APPELLANT’S COUNSEL SUBMISSIONS On issue three, learned counsel for the Appellant had submitted inter alia that in law for a Court to exercise jurisdiction, it must be statutorily empowered and properly constituted as it relates to its membership and the parties before it and upon the fulfilment of all condition precedent to the assumption of jurisdiction, including the service of the originating and other processes on the parties and contended that the service of Court processes, including hearing notice on a party is sine quo none to the exercise of jurisdiction by the Court and therefore, where there is failure to serve either the originating processes and or hearing notices on a party, such proceedings amount to a nullity and urged the Court to hold that the Appellant was not served with any of either the originating processes and or any hearing notice as required by law and she was therefore not aware of the entire proceedings against her and thus, neither held any defence nor defended herself against the claims of the 1st and 2nd Respondents and thereby rendered the entire proceedings and judgment of the lower Court a nullity and liable to be set aside and to allow the appeal, and set aside the judgment of the lower Court for being a nullity and having been reached without the requisite jurisdiction.

Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on National Bank of Nig. Ltd. V. Shoyoye (1977) 5 SC 181, Aremo II V. Adekanye & Ors (2004) 11 MJSC 11 AT P. 24, Unity Bank Plc V. Onwudiwe and Anor (2015) LPELR – 24907 (CA), BCC Ltd. V. Imani & Sons Ltd/Shell Trustees Ltd (2007) All FWLR (Pt. 348) 806 AT p. 815, Ogolo V. Ogolo (2006) 12 NWLR (Pt. 629) 21.

It was also submitted that in law a Writ of Summons or any other originating process must be properly served on the Defendant since without such service, the Defendant may not know that he has been sued and may also not know the claims against him and thus in law the object of the service is therefore to give notice to the Defendant of the claims against him so that he may be aware of and be able to resist, if he desire to, that which is claimed against him and contended that where therefore, service of process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity and urged the Court to hold that the Appellant having not been served with either the originating processes or any other processes and or hearing notices is entitled to have the judgment of the lower Court entered against her in such circumstances set aside for being a nullity and to allow the appeal and set aside the judgment of the lower Court for being a nullity having been reached without jurisdiction.

Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Guda V. Kitta (1999) 12 NWLR (Pl. 629) 21, Madukolu V. Nkemdilim (2006) 2LC 208 AT pp. 218 – 219, Asuquo V. Eshiet (2008) All FWLR (Pt. 401) 970 AT p. 983, Menekenon V.

Tekam (2001) 9 MJSC 114 AT p. 125. 1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS On his issue three, learned counsel for the 1st and 2nd Respondents had submitted inter alia that in law that where a party to a Suit was served with Court Processes, including Hearing Notices but he chose to be indolent and absented himself from the trial, such a party has himself to blame as the Court cannot open the door which he personally shot against himself and contended that the position of the law is so sacrosanct that even where a party appears once but fails to appear at subsequent times and no further blearing notice was served such a litigant is indolent and therefore cannot be aided by the Court and urged the Court to hold that all the originating processes and hearing notices were served on her and she was aware of the proceedings at the lower Court but only choose to ignore the proceedings and therefore, have no basis for any complaint in this appeal as the Appellant was not diligent in the defense of the Suit having been duly served with the originating processes and the hearing notices, and to dismiss the appeal and to affirm the judgment of the lower Court.

Counsel relied Air France V. Gregory Okwudiafor (2012) All FWLR (Pt. 639) 1156 AT pp. 1172 – 1173, Attorney – General, Rivers State V. Ude (2007) All FWLR (Pt. 347) 598 AT pp. 613 – 614.

It was also submitted that the Appellant was duly served by substituted service to by pasting at her place of work and which in law is sufficient and good service as there is no requirement the Appellant must be served at her place of residence and contended that the fact that the 1st and 2nd Respondents knew the place of residence of the Appellant was immaterial to the requirement of proper service once she was duly served by substituted service at her place of work and urged the Court to hold that the Appellant having been duly served with both the originating processes as well as all other processes and hearing notice, the appeal lacks merit and should be dismissed and the judgment of the lower Court should be affirmed. 3RD AND 5TH RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 3rd and 5th Respondents had submitted inter alia that the Appellant admitted that the originating processes were served on her by substituted means by pasting the processes in the Court premises upon the representation that an unsuccessful attempt had been made to serve her the processes in her office and contended that in law the Appellant’s assertion that she was not aware of the Suit because service of the originating processes was effected on her by substituted means by pasting the processes in the Court premises is untenable and cannot avail her and urged the Court to hold that the Appellant was very much aware and instructed her counsel to file a memorandum of appearance and a motion for extension of time to file her defence, and was on the evidence also served with several hearing notices but all to no avail as she choose not to participate in the proceedings until judgment was entered against her and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Ajibola V. Sogeke (2003) 9 NWLR (Pt. 826) 494 AT p. 524. RESOLUTION OF ISSUE THREE My Lords, issue three raises a very crucial as well as fundamental issue in the due administration of justice to wit: the right of parties to be served with originating and all other processes in any proceedings against them and also the sacrosanct right to be served further with hearing notice for the hearing of the matter against them so as to enable them to participate, or of their own volition and choice refuse or neglect to do so in the proceedings against them in a Court of law.

This is the minimum requirement of the law as to the exercise of the right to fair hearing of a party in any proceedings before the Court, failing which any such proceedings as well as the resultant decision and or judgment would be rendered a nullity in law and thereby liable to be set aside.

See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), by which it is provided as follows: “In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to ensure its independence and impartiality.” See High Chief Raymond Dokpesi V. Alhaji Lai Mohammed & Ors (2022) LPELR – 58195 (CA) per Sir Biobele Abraham Georgcwill JCA.

See also Traxys Euro SA V. Ali & Ors (2022) LPELR – 57434 (CA) per Sir Biobele Abraham Georgcwill JCA, Air France V. Gregory Okwudiafor (2012) All FWLR (Pt. 639) 1156 AT Pp. 1172 – 1173, Attorney-General, Rivers State V. Ude (2007) All FWLR (Pt. 347) 598 AT pp. 613 – 614.

Now, the parties are ad idem, and there is an avalanche of evidence in the Record of Appeal to the effect, that the Appellant was served with the Originating Processes by means of substituted service pursuant to the leave of the lower Court and that in response thereto, the Appellant had caused her counsel to filed on her behalf a Memorandum of Appearance as well as a Motion on Notice on 20/2/2007 for extension of time to file her Statement of Defence to the claims of the 1st and 2nd Respondents. See pages 78 – 80 and 84 – 89 of the Records of Appeal.

The only contention appears to be that the Appellant was served by means of substituted service not at her place of residence, which was known to the 1st and 2nd Respondents but rather by pasting at the Court premises after an unsuccessful attempt at serving the processes at her office. I do not think this contention holds any weight or merit in law. Once a party has been duly served by substituted service as ordered by a Court of law, by whatever means and or at whatever place so ordered, it is in law deemed as sufficient and good service.

The essence of service of Court process is simply to bring the pendency of the proceedings to the knowledge and awareness of the party. There is no requirement in law, as far I know, that the Appellant or any party for that matter to proceedings pending in Court, must be served with Court processes at her place of Residence, as erroneously thought but so vehemently contended by the Appellant in this appeal.

So, if truly as the Appellant claimed she was not aware of the 1st and 2nd Respondents’ Suit because it was only served on her by means of substituted service, which at any rate is deemed as good and sufficient service in law, how come she filed her processes in answer to the 1st and 2nd Respondents’ Suit after the substituted service on her? I think the Appellant was not truthful in this her contention.

I cannot therefore but agree with the unassailable submissions of counsel for the 1st and 2nd Respondents as well as counsel for the 3rd and 5th Respondents that the Appellant’s contention of lack of service of originating processes on her itself lacks merit and should be discountenanced. It is hereby so discountenanced and I hold firmly that the Appellant was duly served with the Writ of Summons and all other processes in the 1st and 2nd Respondents’ Suit as required by law by mean of substituted service. See Ajibola V. Sogeke (2003) 9 NWLR (Pt. 826) 494 AT p. 524.

Having found as fact and held firmly that the Appellant was duly served with the Writ of Summons and all other processes in the 1st and 2nd Respondents’ Suit as required, by law, the next most crucial question is whether or not the Appellant was served with Hearing Notices as also required by law for the hearing and eventual determination of the 1st and 2nd Respondents’ Suit against the Appellant by the lower Court? In law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case.

Happily, there is no dearth of decided cases on this very important aspect of our law but rather there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary. The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the Suit or appeal or matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken.

See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended. See also Ama Real Estate Ltd. V. Heritage Bank Plc (2022) LPELR – 57046 (CA) per Sir Biobele Abraham Georgewill JCA. Now, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Folorunso V.

Shaloub (1994) 3 NWLR (Pt. 333) 413 AT p. 430, Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 AT p. 1320. Thus, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order and issue hearing notice. However, where ignorance of a sitting date is self-induced, it is my view that such a party in default is not entitled to a hearing notice. See Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354.

So, why is hearing notice so important in the adjudication processes in the Courts? It is worth pointing out that the importance of service hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served.

The position of the law is that a failure to issue and serve hearing notice, in circumstances in which issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which renders the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Baba V. Atunbi (supra) AT Pp. 366 – 368, Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 AT P.252, Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411, Scott-Emuakpor V. Ukavbe (1975) 12 SC 41, SPDC Nig.

Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420, Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104. However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases.

Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V.

Pinheiro (2001) FWLR (Pt. 48) 1307) AT Pp. 1318 -1320, Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143, Ajaokuta Steel Co Nig Ltd V. Biosali & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145, Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488. It follows therefore, that since all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices from day to day.

This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 AT p. 177. Thus, it is the duty of the Court, and certainly not that of either of the parties in a pending litigation, to confirm that there is proper service of the Court processes, including hearing notice whenever it is necessary to be served, on the other party who may be affected by the outcome of a proceeding before the Court.

So, as it does often happen in the Courts, where a party was neither in Court nor was represented by a counsel, it is in the interest of justice that the Court should ensure that hearing notice is duly issued and properly served on such a party in relation to the next adjourned date for the cause or matter. See FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 AT p. 309. The above is so because in law non-service of hearing Notice on a party, where service of hearing notice is required by law and necessary, would rob the Court of its jurisdiction to hear and determine a cause or matter.

Thus, any order made by a Court against a party in the absence of service of hearing notice on a party, who is entitled to service of hearing notice, is null and void. The failure to serve hearing notice, where it ought to be served on a party to a pending proceedings, goes to the root of the jurisdiction of the Court. See Section 36 of the Constitution of Nigeria 1999 (as amended). See also Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 AT pp. 126 – 127, ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 AT p. 326.

My Lords, the law is and has always been that a failure by a Court to observe the right to fair hearing of a party in the litigation process vitiates both the proceedings and judgment of the Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack of or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were or even how sound the judgment was on the merit. Once, the right to fair hearing is breached, all the proceedings and or judgment or decisions are all a nullity.

But, the issue of lair hearing must at all limes, in any proceedings in which it is raised, be raised with all seriousness and bone fide and not mala fide or merely intended to raise a storm in a teacup without any real factual basis. See Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509 AT p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (PT. 165) 33 AT p. 40, Adebesin V. The State (2014) 9 NWLR (pt. 1413) 609 AT pp. 641 – 642.

My Lords, I have taken time to scan through the entirety of the Record of Appeal in view of the crucial importance of service of hearing notice in the due administration of justice in this Country, and I find that there is avalanche of evidence that Hearing Notices were duly issued by the lower Court for service on the Appellant and further that these Hearing Notices were duly served on the Appellant through her counsel, having filed a Memorandum of Appearance on her behalf before the lower Court.

See pages 68, 68, 84 – 89, 102, 157B, 163B, 164, 165, 169, 170, 170B, 171, 171B, 172, 173, 176, 176B, 180 and 181 of the Additional Record of Appeal. See also pages 387 – 390, 392, 394, 398, 402 – 403, 405, 412 – 414 of the Record of Appeal. Thus, it is clear that the Appellant was duly served with both the Originating Processes and Hearing Notices at various limes but she choose to ignore the proceedings before the lower Court until judgment was entered against her on the uncontested and unchallenged sole evidence of the 1st and 2nd Respondents.

In the circumstances, the law will neither aid nor come to the rescue of the indolent, or the careless, or the reckless and or the negligent in the prosecution or defence of their cases before a Court of law. Such a party, such as the Appellant, would in law have only herself to blame for the calamity of the judgment that eventually befell her.

The lower Court was therefore perfectly right when in its judgment it stated inter alia thus: “The Appellant failed and or neglected to file a defence to this suit even though she had been duly served with the originating process.” See page 429 of the Record of Appeal.” In the light of all I have stated and found as above, issue three is hereby resolved against the Appellant in favour of the 1st and 2nd Respondents as well as the 3rd and 5th Respondents.

ISSUES ONE AND TWO (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it found that the Appellant sold her letter of allocation in respect of the property in dispute and thereby enabled the 1st and 2nd Respondents to step into her shoes and contended that this finding by the lower Court violated the provisions of the Letter of Allocation, Exhibit PW 1A in that the property in dispute is a mortgaged property and in law the 1st and 2nd Respondents cannot acquire any title to the mortgaged property without the consent of the Mortgagee first sought and obtained since in law the consent of the mortgagee is a condition precedent to the assignment of a mortgaged property and urged the Court to hold that in the absence of the requisite consent of the Mortgagee the title in the mortgaged property in dispute resided in the mortgagee and therefore, the purported sale to the 1st and 2nd Respondents of the mortgaged property by the Appellant was null and void and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st and 2nd Respondents for lacking in merit.

Counsel referred to the Book: “Practical Approach to Law of Real Property in Nigeria” by Prof. L.O. Smith, 2nd Edition AT p. 353, and relied on N. J. Ekaeteh V. Nigerian Housing Development Society Ltd & Anor (1973) All NLR 555, Marouf Adeleye Kasunmu V. J. M. Scott & Ors (1967) AH NLR 243, Barclays Bank DCO V. Olofintuyi & Anor (1961) All NLR 828.

On issue two, learned counsel for the Appellant had submitted inter alia that without the requisite consent of the Mortgagee the purported sale of the Mortgaged property is a nullity since the law is ‘ex nihilo nihil fit’ one cannot place something on nothing and expect it to stand and contended that in law prior consent of the Mortgagee is a condition precedent for the sale of a Mortgaged property by the Mortgagor and thus, any failure to do so renders such a sale a nullity and urged the Court to hold that without the consent of the 4th Respondent the Appellant cannot give out any title to the said Mortgaged property, which she had given out to the 4th Respondent and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st and 2nd Respondents for being a nullity.

Counsel relied on Madukolu & Ors V.

Nkenidilim (2006) 2 LC 208 AT pp. 218 – 219. 1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 1st and 2nd Respondents had submitted inter alia that from the unchallenged evidence before the lower Court the sale of the property to the 1st and 2nd Respondents by the Appellant without the consent of the Mortgagee, the 4th Respondent was not illegal as the peculiar facts reveal that the Appellant, the Mortgagor intended the 1st and 2nd Respondents to pay off her outstanding indebtedness to the Mortgagee and which the 1st and 2nd Respondents were doing until the unlawful action of the Appellant by unilaterally repudiating the sale after receiving full payment and Agreements signed and contended that Exhibit PWJ1 – 3 did not in any way forbid the Appellant from selling the said property as she would only lose her title if she was unable to service National 1 lousing Fund loan facility advanced to her in three consecutive months or defaulted in making the principal and interest repayment for six months within any year and urged the Court to hold that nothing short of these failures would make the Appellant lose her title to the said properly and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Janies Goloto & Another V. The Registered Trustees of Deeper Life Ministry & Another (2012) All FWLR (Pt. 647) 726 AT pp. 770 – 741.

On his issue two, learned counsel for the 1st and 2nd Respondents had submitted inter alia that in its adjudicatory function, the Courts have a duty to prevent injustice in any given scenario and avoid rendering a decision which enables a party escape from his or her obligation under a contract by his or her own willful wrongful act or otherwise profit from such a willful wrongful act and contended that to uphold the Appellant’s case that the failure to obtain the consent of the Mortgagee rendered the transaction null and void, especially when such a defense was not coming from the Mortgagee, will definitely amount to an injustice as the Appellant who willfully entered into a contract to sell her property and which was witnessed by her own husband will benefit from her own wrong and urged the Court to hold that the law will not support its use as an engine of fraud and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35, Bulet International (Nig) Ltd & Anor V. Olaniyi & Anor (2017) LPELR – 42475 (SC), Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212, Heco Foam Industries Nigeria Ltd V. Chellarams Plc (2018) All FWLR (Pt. 918) 172 AT p. 187, Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868 AT p. 1885, Okechukwu V.

Onuorah (2000) LPELR – 2431 (SC). 3RD AND 5TH RESPONDENTS’ COUNSEL SUBMISSIONS My Lords, none of the Defendants before the lower Court, including the Appellant and the 3rd and 5th Respondent, called any witness at the trial of the 1st and 2nd Respondents’ Suit. The 3rd and 5th Respondents who filed their Statement of Defence did not however, call any witness to give any evidence in support of and proof of their pleadings. In law, the averments in their pleadings are therefore, deemed abandoned and would thus go to no issue in the determination of the ease.

It follows in my view therefore, all the avalanche of submissions by the 3rd and 5th Respondents on the facts, in the absence of any evidence from them, should not really be of any serious moment in this appeal.

I shall therefore, review albeit briefly the submissions of the 3rd and 5th Respondents in their brief in this appeal, and I proceed to do so anon! ​ On his issue two, learned counsel for the 3rd and 5th Respondents had submitted inter alia that the lower Court was right to have held that the Appellant had sold or transferred her interest in the property to the 1st and 2nd Respondents and contended that in law it is not correct to contend as was done by the Appellant that a Mortgagor cannot validly divest his interest in a mortgaged property without the consent of the Mortgagee who has the legal title in the property in that firstly, the Appellant has no locus to make the complaint of lack of consent not being the Mortgagee, and secondly there is nothing in law that prevents a Mortgagor from alienating his interest provided it is subject to the Mortgage even though the Mortgagor may not be part of the transaction and urged the Court to hold that the lower Court was right when it validated the sale of the Mortgage property to the 1st and 2nd Respondents by the Appellant, a Mortgagor and for which there is no complaint of lack of consent by the 4th Respondent, the Mortgagee and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 AT pp 542 – 543, Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181, Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt. 798) 1 AT pp. 34 – 35, UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647, Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86.

RESOLUTION OF ISSUES ONE AND TWO My Lords, issues one and two deal with the merit or otherwise of the claims of the 1st and 2nd Respondents as Claimants against the Appellant and the 3rd and 5th Respondents as Defendant before the lower Court, the 4th Respondent’s name having been struck out by the lower Court.

In brief, and in the absence of any evidence from the Appellant, the case of the 1st and 2nd Respondents, which had remained unchallenged and undefended, was inter alia that the Appellant was the allottee of Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja, the property in dispute, vide a Letter of Allocation issued in her favour by the 3rd Respondent.

However, following the Appellant’s agreement to sell her allocation letter to the 1st and 2nd Respondents for valuable consideration to enable her offset the mortgage she took from the 4th Respondent, the Appellant handed over all the particulars of the property to the 1st and 2nd Respondents and the 2nd Respondent thereafter paid to her the sum of N700, 000.00 as consideration for selling off her interest in the property.

Curiously, rather than hand over possession of the said property to the 1st and 2nd Respondents, the Appellant later notified the 1st and 2nd Respondents that she had taken possession of the property and had rented it out to a tenant for a term of 2 years, without surrendering it to 1st and 2nd Respondents. ​ At the trial, the 1st and 2nd Respondent called one witness who testified as PW1 and tendered several documents, all of which remained unchallenged, uncontradicted and uncontroverted by the Appellant.

In law, whenever documentary evidence is available, and since they are the best form of evidence due to the lower level of possibility of their manipulations and being earlier in time to the oral evidence, which is capable of manipulations and afterthoughts, they are to be used as hangers on which to assess the veracity of oral evidence. See Sections 128 (1) and 132 (1) of the Evidence Act 2011. See also Salbodi Group Limited & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR-57458(CA) per Sir Biobele Abraham Georgewill JCA, Ezenwa V. KSHSMB (2001) 9 NWLR (Pt. 1251)1, Womiloju V.

Kiki (2009) 16 NWLR (Pt. 1166) 146. Now, neither the Appellant nor the 3rd and 5th Respondents called any witness to give any evidence in rebuttal to the evidence, both oral and documentary led by the sole witness of the 1st and 2nd Respondents. The case of the 1st and 2nd Respondents, as Claimant, as pleaded and supported by evidence therefore remained unchallenged, uncontroverted and uncontradicted by any or all of the Appellant and the 3rd and 5th Respondents, as Defendants before the lower Court.

In law, such evidence is deem good and can be relied upon by the trial Court to reach appropriate findings of facts as between the parties, and the onus of proof on the 1st and 2nd Respondents was therefore, minimal. See Zakariya V. Mohammed (2022) LPELR – 57505 (CA) per Sir Biobele Abraham Georgewill JCA. See also Olorundare SAN V. Minister of FCT & Ors (2022) LPELR – 58132 (CA) per Sir Biobele Abraham Georgewill JCA.

In law, a mortgage is a legal or equitable conveyance of title as a security for the payment of debt or the discharge of some other obligation for which it is given, subject to a condition that the title shall be re-conveyed if the mortgage debt is liquidated. A mortgage is the conveyance of title as security for the payment of a debt. In other words, the moment a mortgage is created, the mortgagor ceases, albeit temporarily, to be the owner of the mortgage property, until redemption of the mortgaged debt. See Practical Approach to Law of Real Property in Nigeria by Prof. L.O.

Smith, 2nd Edition AT p. 353. The Appellant was not and is not the Mortgagee, whose responsibility it is in law to grant consent to the sale of the mortgaged property should he consider it fit to do so. The Mortgagee was the 4th Respondent and who had whilst before the lower Court had applied to wash its hand off the case and whose application was granted and its name was accordingly struck out by the lower Court.

The 4th Respondent, the Mortgagee, had nothing to insist or press as regards its consent to the sale of the mortgaged property by the Appellant, the Mortgagor, to the 1st and 2nd Respondents. In law, the right to complain is that of the 4th Respondent, at whose benefit the law requires that consent by the Mortgagee is required for the sale or otherwise dealing by the Mortgagor with the Mortgaged property.

It is a party in whose benefit the law or statute makes a provision that should complain about its denial or refusal and not a stranger to the provision and or the benefit such as the Appellant in the instant case. See Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35.

Yet, curiously, it is the Appellant who as Mortgagor ought to seek and obtain the consent of the 4th Respondent, the Mortgagee, and is with the money paid to her by the 1st and 2nd Respondents as consideration for the sale of the letter of allocation to the property in dispute, that is now carrying on the, would have been, battle of the 4th Respondent and crying over the lack of consent to the sale of the letter of allocation to the mortgaged property. This, in my view, is clearly demonstrative of the saying at common parlance of ‘one crying more than the bereaved’.

There is nothing else to appropriately describe the attitude of the Appellant in this case. In law, and I so firmly hold, the Appellant cannot be allowed to keep her cake by keeping the hard-earned money paid to her as consideration by the 1st and 2nd Respondents as in Exhibit PW1F and yet have her cake by keeping her ownership of the said property. The law will never allow itself to be used by the Appellant as an engine to perpetrate and perpetuate fraud against the 1st and 2nd Respondents. Indeed, equity forbids the Appellant to benefit from her own wrong using the law as an engine of fraud.

See Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 (Pt. 798) 1 AT pp. 34 – 35. See also Bulet International (Nig) Ltd & Anor V. Olaniyi & Anor ​ (2017) LPELR – 42475 (SC), Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212, Heco Foam Industries Nigeria Ltd V. Chellarams Plc (2018) All FWLR (Pt. 918) 172 AT p. 187, Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868 AT p. 1885, Okechukwu V. Onuorah (2000) LPELR – 2431 (SC), Union Homes Service & Loans Plc V. Bluewing Travels & Tours (2017) LPELR – 51550 (CA) per Sir Biobele Abraham Georgewill JCA.

My Lords, in law, nothing prevents or hinders the mortgagor from alienating his equity of redemption with or without the consent of the Mortgagee in order to liquidate the mortgagor’s outstanding indebtedness to the mortgagee. A mortgagor may at any time without the mortgagee’s consent make a conveyance of his property subject to the mortgage. Thus, notwithstanding any such conveyance and even if the transferee undertakes personal liability to the mortgage, the mortgagor remains personally liable on the covenant to pay money.

He therefore usually takes an express covenant for indemnity from the transferee but even if he does not, a transferee for value will be under an implied obligation to indemnify him.

EXHIBIT PWJ 1 – 3 AT page 274 of the Records of Appeal. In the instant appeal, nothing in Exhibit PWJ1 – 3, which I had taken time to calmly scrutinize its contents, in any way forbid the Mortgagor, the Appellant from selling and therefore, by the contents of Exhibit PWJ 1 – 3 it does seem to me that the Appellant as the Mortgagor would only lose her title to the property if she was unable to service National Housing Fund loan facility advanced to her in three consecutive months or should she default in making the principal and interest repayment for six months within any year.

The lower Court was in my finding therefore, right when it held that the sale between the Appellant and the 1st and 2nd Respondents was valid. See James Goloto & Anor V. The Registered Trustees of Deeper Life Ministry & Anor (2012) All FWLR (Pt. 647) 726 AT pp. 770 – 741.

Indeed, the Appellant having sold or transferred her interest in the property to the 1st and 2nd Respondents, it cannot be correct in law to contend as was done by the Appellant that a Mortgagor cannot under any circumstances validly divest his interest in a mortgaged property without the consent of the Mortgagee who has the legal title in the property.

This is so because firstly, the Appellant has no right of her own to make or lay the complaint of lack of consent not being the Mortgagee, and secondly, there is nothing in law that prevents a Mortgagor from alienating his interest provided it is subject to the Mortgage even though the Mortgagor may not be part of the transaction. See Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 AT pp 542 – 543, Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181, Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt. 798) 1 AT pp. 34 – 35, UBN Plc V.

Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647, Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86. In M. J Eka – Ette V. Nigerian Housing Development Society Ltd & Anor (1973) All NLR 555, the issue for determination was whether the Mortgaged property was undervalued and consequently undersold, and there was no challenge to the power of the Mortgagee or Mortgagor to sell in that case unlike in the instant case.

The facts in that case, in my humble view, are therefore, clearly distinguishable from the facts of the instant appeal. A sale in the established peculiar circumstances of this appeal ought not to and should not be set aside at the instance of the Appellant. The lower Court, in my view, was right to have validated the said sale so that the Appellant docs not use the law as an engine of fraud. See Barclays Bank Deo V. Olofintuyi & Anor (1961) All NLR 828. See also Marouf Adeleye Kasumu V. J. M. Scott & Ors (1967) All NLR 243.

Thus, in any dealing with the mortgaged property by the mortgagor, the only interest he can part with is his interest in the equity of redemption, as he cannot grant an interest to supersede the equitable rights of the mortgagee over the mortgaged property without first getting rid of the whole amount of his indebtedness to the mortgagee under the mortgage loan, even though the legal estate resides in him, the mortgagor. See UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647.

Most instructively, the right of Mortgagor to sell the Mortgaged property especially for the purpose of liquidating the loan facility, as the Appellant in the instant case did bit is seeking furtively to repudiate it, is lawful and has been so recognized even by the Apex Court. See Akindele V.

Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86, where the Supreme Court, per Abba – Aji, JSC, had stated inter alia thus: “I must be categorical here that any mortgagor that does not want his property to be foreclosed for sale should sell it by himself or liquidate the loan facility.” On the established facts in this case as in the Record of Appeal from the unchallenged evidence of PW1 and the several documentary Exhibits, and on the current state of the law on sale of mortgaged property by a Mortgagor, it seems clear to me, and as rightly found by the lower Court, that the sale of the said property to the 1st and 2nd Respondents by the Appellant without the consent of the Mortgagee, the 4th Respondent was not illegal as the peculiar facts reveal that the Appellant, the Mortgagor had intended the 1st and 2nd Respondents to pay off her outstanding indebtedness to the Mortgagee and which the 1st and 2nd Respondents were doing until the questioned action of the Appellant by unilaterally repudiating the sale after receiving full payment and all necessary agreements voluntarily entered into and duly signed between the parties.

In law, as in equity, the Appellant lacks the power to renege using the concept of consent in Mortgage transaction merely as an engine of fraud in order to benefit from her own wrong. The law will never allow the Appellant to do so unashamedly as she had sought furtively to do in this case. See Mobil Producing (Nig.) Un Ltd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35. See also Union Homes Service & Loans Plc V. Bluewing Travels & Tours (2017) LPELR – 51550 (CA) per Sir Biobele Abraham Georgewill, JCA.

In the light of all I have said above therefore, I hold that the conclusion reached by the lower Court that the sale transaction between the Appellant and the 1st and 2nd Respondents was valid was correct and cannot be disturbed by this Court. This is so because in law once the conclusion reached by a trial Court is correct on the evidence led before it, an appellate Court will not interfere with the correct conclusion of the trial Court. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 AT p. 198, per Edozie JSC. See also Elephant Group Plc V.

National Security Adviser & Anor (2018) LPELR – 45528 (CA) AT pp. 90 – 91, per Sir Biobele Abraham Georgewill JCA. In the light of all I have stated and found above, issues one and two are hereby resolved against the Appellant in favour of the 1st – 2nd Respondents. On the whole, therefore, having resolved all the issues one, two and three for determination against the Appellant in favour of the 1st – 2nd Respondents as well as the 3rd and 5th Respondents, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, it is hereby dismissed.

In the result, the judgment of the High Court of Federal Capital Territory Abuja Division, Coram: O. O. Goodluck J, in Suit No. FCT/11C/CV/4724/2011: Mrs Abe Ethel Ndidi .V. Shammah Global Trades Limited & Ors delivered on 30/4/2019, in which the claims of the 1st – 2nd Respondents as Claimants were granted against the Appellant as Defendant, is hereby affirmed. There shall be cost of N300,000. 00 against the Appellant in favour of the 1st – 2nd Respondents only.

MOHAMMED MUSTAPHA, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my Lord, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed. The decision of the High Court of Federal Capital Territory Abuja Division, delivered by O. O. Goodluck J, in Suit No. FCT/HC/CV/4724/2011 on 30/4/2019 is hereby affirmed. I abide by the consequential orders.

DANLAMI ZAMA SENCHI, J.C.A.: I was privilege to read in draft before now the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with the reasoning and finding in the lead judgment as it has substantially reflected and captured all my views I had expressed during the conference. I therefore entirely adopt as mine the lead judgment of my learned brother, GEORGEWILL, JCA and I have nothing meaningful or useful to add. Hence, the appeal lacks merit and it is dismissed. The judgment of the High Court of the Federal Capital Territory, Abuja in Suit No.

FCT/HC/CV/4724/2011 delivered on 30th April, 2019 by O.O GOODLUCK, J is hereby affirmed. I abide by the order as to cost made in the lead judgment as mine.

Judgment

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018. The Respondent commenced the action in the lower Court by a motion brought pursuant to provisions of the Fundamental Right (Enforcement Procedure) Rules 2009.

The Respondent sought for the enforcement of his fundamental right to dignity of human person, right to personal liberty, right to freedom of movement and right to freedom of expression as guaranteed, according to him, under Sections 34, 35, 39, 41, 44 and 46 of Constitution of the Federal Republic of Nigeria 1999 (as amended), an order of injunction to restrain further breach of his fundamental rights, public apology to be published in two widely read newspapers and the sum of N20 Million as damages. ​The case of the Respondent on the processes filed was that he is an Alkali and had served in various Sharia Courts in Jigawa State and was also an Islamic scholar and preacher in his village, Doko, and in other neighbouring villages in Garki Local Government Area of Jigawa State.

It was his case that on the 28th of September, 2018 while transiting to his farm on a commercial motorcycle, he was stopped by the fourth to the sixth Appellants who were on duty on the Kano/Gumel highway and he and the motorcyclist were asked to dismount for a search to be conducted.

It was his case that they dismounted and that the officers insisted on searching him even after he identified himself as an Alkali and showed them his identification card, and that at the end of the search, nothing incriminating was found on them. ​It was his case that after concluding the search and finding nothing incriminating, the officers still did not allow him to go and that when he insisted on being allowed to go, the officers started abusing him, calling him all sorts of names, and this attracted passer-by who were mainly people from his village and the neighbouring villages where he preached.

It was his case that he reacted to the abuses by telling the officers that their actions were useless acts and whereupon the officers started beating him to the point of unconsciousness, and in the course of which he sustained an injury to his lip and that he was arrested by them, leg-cuffed and detained in the back of their Toyota Hilux vehicle. It was his case that he remained in that position in the scorching sun in the full glare of his village people for more than three hours before people came to plead with the officers to release him.

It was his case that he lost his self-esteem and dignity and that the actions of the officers infringed his fundamental rights. ​The Appellants filed a joint counter-affidavit and they denied the case of the Respondent and it was their case that the fourth to the sixth, while on a lawful routine patrol on the highway, Gumel/Kano highway, on the 21st of September, 2018, flagged down a motorcycle conveying three people.

It was their case that the motorcycle stopped and the rider submitted for a search and was searched, but that the Respondent who was the second passenger on the motorcycle refused to submit to a search. It was their case that they conceded to the Respondent to search himself by bringing out everything in his pocket and that after doing so very reluctantly, and nothing incriminating was found on him, they asked the Respondent to step aside to enable them conduct a search on the third passenger.

It was their case that rather than step aside, the Respondent started abusing the officers and created a scene which attracted other persons and in the course of which they were prevented from searching the third passenger on the motorcycle who escaped from the scene of the search. It was their case that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

It was their case that the Respondent resisted the arrest and that in course of the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that they did not beat the Respondent and that the Respondent was conscious the whole time.

It was their case that the Respondent did not at anytime introduce himself as an Alkali. ​It was their case that when they succeeded in arresting the Respondent, they leg-cuffed him to restrain him from running away with the intent of taking him to their office in Hadeija. It was their case that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent.

It was their case that the Respondent then instigated the youths of the area and who gathered at the scene and threatened to burn the vehicle of the first Appellant and kill the three officers and the officers had to quickly leave the area. It was their case that on their way from the scene of the incident, they were accosted by policemen from the Nigerian Police Force, Garki Station Jigawa State and that they narrated to the policemen all that transpired.

It was their case that it was the Respondent that degraded and inhumanly treated the fourth to the sixth Appellants with his utterances. ​Counsel to the parties filed written addresses in support of the respective cases of the parties and the lower Court heard the matter on the merits and it entered judgment granting all the claims of the Respondent, but awarding him N5 Million as damages, instead of the N20 Million claimed.

The lower Court found in the judgment that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless, and it proceeded from the finding to hold that the Appellants breached the fundamental rights of the Respondent. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 14th of December, 2018 and containing seven grounds of appeal against it.

In arguing the appeal, Counsel to the Appellants presented a brief of arguments dated and filed on the 17th of May, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 22nd of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 20th of February, 2020 on the 21st of February, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments. ​Counsel to the Appellants distilled three issues for determination in the appeal and these were: i.

Whether having regards to the affidavit evidence and issues canvassed before the lower Court, the lower Court made a proper evaluation of the evidence before coming to the conclusions reached by the Court. ii. Whether the award of N5 Million damages against the Appellant as well as an order of public apology were not arbitrary as they did not follow the principles for award of damages and public apology in cases of this nature. iii. Whether the judgment of the lower Court was not perverse and therefore occasioned a miscarriage of justice.

In arguing the first issue for determination, Counsel to the Appellants referred to the case of Mbonu Vs Nwoti (1991) 7 NWLR (Pt 206) 737 in reiterating that it was the duty of a trial Court to properly evaluate the evidence contained in the depositions in the affidavits filed by the parties in making its findings and stated the trial Court failed to properly do so in the present case.

Counsel stated that in response to the allegation of the Respondent that the fourth to the sixth Appellants pounced on him and beat him, the Appellants stated in paragraph 5(q) of the counter affidavit very clearly that the fourth to the sixth Appellants did not beat the Respondent. Counsel stated that the finding of the lower Court that the Appellants did not deny pouncing on the Respondent was grossly erroneous in law and was a complete misapprehension of the facts placed before the lower Court.

Counsel stated that there was conflict in the affidavit evidence of the parties on whether or not the Respondent was assaulted by the fourth to the sixth Appellants and that instead of calling for oral evidence to resolve the conflict, the lower Court did so suo motu and that this was wrongful and he referred to the case of Asonye Vs Registered Trustees of CAN (1995) 2 NWLR (Pt 379) 623 and Boothia Maritime Inc Vs Far East Mercantile Company Ltd (2001) FWLR (Pt 50) 1713. ​Counsel stated that the failure to call for oral evidence to resolve the apparent conflict in the affidavit evidence of the parties led the lower Court to make perverse finding which occasioned a miscarriage of justice and that this Court is empowered to interfere with the evaluation of evidence carried out by the lower Court in such a situation and he referred to the cases of Obajimi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1 and Dumez Nigeria Limited Vs Nwakhoda (2008) 18 NWLR 36.

Counsel stated that not only was the decision not borne out by the evidence put forward by the parties, it was obvious that the lower Court acted on irrelevant factors by reason of the sentiments it expressed in the statements it made concerning the status of the Respondent in the award of damages.

Counsel stated that it is settled law that a decision reached on irrelevant factors and considerations cannot be allowed to stand and that the appellate Court is empowered to reevaluate the evidence in such circumstances and he referred to the cases of Ojeleye Vs Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2009) 15 NWLR 520, Ushae Vs Commissioner of Police (2005) 2 NWLR (Pt 937) 499 and Macaulay Vs NAL Merchant Bank Ltd (1990) 6 SCNJ 117.

Counsel urged the lower Court to resolve the first issue for determination in favour of the Appellants. ​On the second issue for determination, Counsel stated that the lower Court did not follow the laid down principles of award of damages in cases of this nature and that the award of exemplary damages is made cautiously and based on established principles and not on the whims and sentiments of the adjudicator and that the Respondent did not place sufficient materials before the lower Court to support the claim for damages and he referred to the cases of Attah Vs Inspector General of Police (2015) All FWLR (Pt 805) 108 and Onagoruwa Vs Inspector General of Police (1991) 5 NWLR (Pt 193) 621.

Counsel stated that the lower Court did not give any legal basis or reasoning for the award of N5 Million as damages and said that it was doing ‘just to show sympathy and mitigate his medical and other expenses’ and that this amounted to speculation which a Court is not allowed to do and he referred to the case of Ushae Vs Commissioner of Police supra. ​Counsel went on a voyage of restating the principles governing the award of aggravated and exemplary damages and he cited case law authorities thereon.

Counsel noted the instances when an appellate Court will interfere with an award of damages by a trial Court and stated that this one of such instances as the N5 Million awarded by the lower Court was very high and excessive in the circumstances of this case. Counsel stated that lower Court awarded the damages to the Respondent ‘just to show sympathy and mitigate his medical and other expenses’, but that the Respondent did not depose that he incurred medical expenses or other expenses and did not put before the Court anything he lost.

Counsel stated that this Court is empowered in the circumstances of this case to either set aside the award of damages or to re-assess the sum of N5 Million awarded and he referred to the cases of Adim Vs Nigeria Bottling Company Ltd (2010) All FWLR (Pt 527) 690 and Attah Vs Inspector General of Police supra. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.

On the third issue for determination, Counsel stated that where the decision of a trial is perverse and has occasioned a miscarriage of justice, this Court should interfere and he referred to the cases of Njoku Vs The Registered Trustees of Congregation of Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 139, Uwah Vs Akpabio (2014) LPELR-22311(SC). Counsel stated that all the attributes of a perverse decision are present in the judgment of the lower Court and this Court should thus interfere with the decision.

Counsel urged the Court to resolve the issue for determination also in favour of the Appellants. Counsel concluded his submissions by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court. Counsel to the Respondent adopted the three issues for determination as formulated by Counsel to the Appellants.

In arguing the first issue for determination, Counsel stated that it is the duty of the trial Court to make findings based on the evidence adduced by the parties and to arrive at a decision granting or dismissing the reliefs sought and that it is only where a trial Court fails to evaluate or improperly evaluates the evidence led that an appellate can intervene and reevaluate the evidence, but not otherwise and he referred to the cases of Sabo Vs Abdul Kadir (2016) All FWLR (Pt 992) 178, Olofin Vs Rasaki (2016) All FWLR (Pt 830) 1281 and Insurance Brokers of Nigeria Vs A. T. M.

Co Ltd (1996) 8 NWLR (Pt 466) 316.

Counsel stated that for improper evaluation or non-evaluation of evidence to have effect on the case of a party, the party alleging same must identify and specify the evidence not evaluated and show that it occasioned a miscarriage of justice and he referred to the cases of Mafulul Vs Takwen (2018) LPELR-45635(CA) and Adeye Vs Adesanya (2001) LPELR-166(SC). ​Counsel stated that this case was conducted on affidavit evidence and that the complaint of the Appellants in this appeal was that the lower Court failed to make proper use of the depositions in counter affidavit in finding that the Appellants did not deny the contents of paragraph 18 of the affidavit in support where it was alleged that the fourth to the sixth Appellants pounced on the Respondent and beat him up and injured him in the mouth.

Counsel noted that in paragraph 5(a) of the counter affidavit wherein the Appellants listed the paragraphs of the affidavit they were denying, paragraph 18 was not mentioned and he referred to paragraph 5(q) thereof wherein the Appellants deposed that they did not beat the Respondent and explained how the Respondent sustained the injury to the lip while he was resisting arrest. Counsel stated that it was obvious from the counter affidavit that paragraph 5(q) was an afterthought and did not constitute a denial of paragraph 18 of the affidavit in support.

Counsel thereafter referred and reproduced portions of the deliberations of the lower Court in the judgment and stated that it was obvious that the lower Court exhaustively appraised the evidence proffered by the parties, attached appropriate probative value to them before making its findings and entering judgment.

Counsel stated that the evaluation of evidence carried out by the lower Court cannot be said to have occasioned a miscarriage of justice to the Appellants and this is because the humiliation and maltreatment meted out to the Respondent amounted to a clear breach of his fundamental rights guaranteed in Section 34 of the Constitution and he referred to the case of Nigeria Customs Service Board Vs Mohammed (2015) LPELR-25938(CA). ​Counsel stated that, contrary to the submissions of Counsel to the Appellants, it is not in every situation where there is a conflict in affidavit evidence that the Court calls for oral evidence and that the Court can use documentary evidence to resolve such conflicts and he referred to the cases Collins Commermex Nigeria Ltd Vs Skye Bank Plc (2019) LPELR-46892(CA), Jev Vs Iyortyom (2014) All FWLR (Pt 747) 749 and APC Vs Agoda (2019) LPELR-47174(CA).

Counsel stated that the seeming conflict in the affidavit evidence of the parties was on whether the fourth to the sixth Appellants beat up the Respondent, injured him and leg-cuffed him and that while the Respondent said they did, the Appellants maintained that they did not. Counsel stated that the Respondent attached photographs of himself with an injured lip and in leg-cuffs and the lower Court was right when it used the photographs to resolve the conflict.

Counsel urged the Court to resolve the first issue for determination in favour of the Respondent and stated further that, should it find there was indeed an improper evaluation of evidence which prejudiced the Appellants, the Court should reevaluate the affidavit evidence of the parties and come to an appropriate decision and he referred to the case of Okomalu Vs Akinbode (2006) LPELR-2470(SC). ​In arguing the second issue for determination, Counsel noted that Counsel to the Appellants expended so much energy on what the Respondent had to prove to be awarded exemplary and aggravated damages and stated that the Respondent did not claim for exemplary and aggravated damages, but simply for general damages for breach of his fundamental rights.

Counsel stated that the lower Court awarded the sum of N5 Million as compensation to the Respondent for the breach of his fundamental rights and that there is a world of difference between a claim for exemplary and aggravated damages and one for general damages and he referred to the case of Aice Investment Company Ltd Vs Fidelity Bank Plc (2015) LPELR-25753(CA).

Counsel stated that the award of damages for breach of fundamental rights is automatic by virtue of the provisions of Section 36(6) of the 1999 Constitution and he referred to the case Jim-Jaja Vs C.O.P., Rivers State (2013) All FWLR (Pt 665) 203. Counsel stated that the award of compensation under the fundamental rights proceedings, which is sui generis in nature, is not knotted by the shackles of common law principles and he referred to the cases of William Vs Usen (2018) LPELR-46163(CA), Ukpai Vs Omoregie (2019) LPELR-47206(CA) and Yahaya Vs NPF, Plateau State Command (2018) LPELR-46045(CA).

Counsel conceded that this Court possesses the power to tamper with and reassess damages awarded by the trial Court where the quantum is manifestly too high or manifestly too low or where it was granted on based on wrong principles of law, but stated that in determining whether a trial Court made a proper assessment in the award of damages in a fundamental rights proceedings, this Court must be guided by some factors including the frequency of the type of violation in recent times, the depreciating value of the Naira, the motivation for the violation, the status of the applicant and nature of undue embarrassment meted to the applicant and he referred to the cases of Attah Vs IGP (2015) LPELR-24656(CA) and NPF Vs Omotosho (2018) LPELR-45778(CA), amongst others. ​Counsel stated that a read through the deliberations of the lower Court on the award of damages shows that some of these factors weighed on the mind of the lower Court in making the award of N5 Million as compensation to the Respondent and that there was no basis for this Court’s interference with the award.

Counsel urged the Court to resolve the second issue for determination in favour of the Respondent. On the third issue for determination, Counsel conceded that where the decision of a lower Court is perverse, an appellate Court can intervene to set it aside, but stated that it is not enough for a party to say that a judgment of the lower Court, which enjoys a presumption of irregularity by virtue of Section 168 of the Evidence Act, is perverse, the party show how it is so and he referred to the case of Amadi Vs Attorney-General, Imo State (2017) LPELR-42031(SC).

Counsel referred to the cases of Udengwu Vs Uzuegbu (2003) LPELR (Pt 3293(SC) and Zock Vs Bawa (2017) LPELR-43227(CA) in asserting the derelictions a trial Court must commit for its decision to be perverse and stated that the Appellants woefully failed to show that the lower Court was guilty of any of the derelictions in coming to its decision. Counsel thus urged the Court to resolve the third issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same accordingly and to affirm the judgment of the lower Court. ​Reading through the processes of the parties in the lower Court, the judgment of the lower Court, the notice of appeal and the entire arguments in the briefs of arguments of the parties, all the issues canvassed in this appeal can be subsumed under two issues for determination. These are: i.

Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants. ii. In the case of issue (i) being in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case.

The two issues for determination adequately capture the grievances of the Appellants in this appeal and the appeal will be resolved on the two issues for determination and this will be done seriatim.

Issue One Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants ​Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people.

In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary.

Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.

The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990.

The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights.

The Respondent predicated his application before the lower Court on his rights to dignity of the human person, to personal liberty, to freedom of movement and to freedom of expression which, he said, are guaranteed by the provisions of Sections 34, 35 and 39 respectively of the 1999 Constitution. ​The lower Court found that, on the affidavit evidence led by the parties, the Respondent made out a credible case to sustain his claim.

In deliberating on the claims of the Respondent, the lower Court, after summarizing the respective cases of the parties, stated thus: “… In the main paragraphs, i.e. paragraph 5(a) to 5(w) the respondents denied most of the averments in the affidavit in support more especially by paragraph 5(a) when they denied paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 of the affidavit in support. However, the Respondents are not denying paragraph 18 of the affidavit in support. This means that they admitted pouncing on him having heard him utter the word ‘useless’.

They also admitted beating the Applicant as well as jacking his gown and punching him on his mouth. The Respondents, i.e. 4th, 5th and 6th Respondents, by paragraph 5(h) admitted that when the Applicant was finally searched, nothing incriminating was found with him in any of his pockets. The three Respondents in the field work emphasized that the sin of the Applicant was that he uttered the word ‘useless’ to them. They also claimed that the Applicant did not introduce himself as an Alkali Judge in the area.

Whether the behavior of the 4th, 5th and 6th Respondents on the 21st day of September, 2018 at Doko Village in Garki Local Government Area of Jigawa State was justifiable in the circumstances of this case?

The Respondents claimed that the Applicant refused to be searched and/or allowed the 3rd man on the motorcycle to escape their search. That he did not introduce himself, etc. All these things are reasonable ground to have pounced on a man who happened to be at their checkpoint unarmed and/or has not used violence on them? I think the answer to the above is that officers have used excessive force over an armless person. To me, the behavior amounts to a violation of the fundamental rights of the Applicant having regard to the fact that they are public officers entrusted to carry arms on duty.

Calling them useless is not enough to have lost their temper and pounced on an innocent man who posed no danger to their lives. This kind of behavior by the 4th, 5th and 6th Respondents under the command of the 2nd and 3rd Respondents is barbaric and therefore uncivilized as it violates fundamental rights of the Applicant … I therefore award reliefs Nos. 1, 2, 3, 4 and 5 as prayed. However, as to relief No 6, I do not believe that somebody in the caliber of the applicant in this kind of litigation can be adequately compensated by monetary compensation, no matter how much.

But payment of damages cannot adequately compensate the applicant, but just to show sympathy and/or mitigate his medical expenses or other expenses, the sum of Five Million Naira (N5,000,000.00) can suffice. So, I award the sum of Five Million Naira (N5,000,000.00) compensation to the applicant to be jointly paid by all the Respondents so as to mitigate the suffering of the applicant.” ​ The gravamen of the complaint of the Appellants under this issue for determination is on the improper evaluation of affidavit evidence carried out by the lower Court in making its findings.

It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation.

A finding of fact by a trial Court involves both perception and evaluation –Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision.

The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria ​(2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.

Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against.

By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant.

This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1. ​The contention of the Appellants was that the lower Court failed to properly evaluate the entire contents of their counter affidavit and thus fell into error when it held that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless.

The Appellants argued that there were paragraphs in the counter affidavit wherein they frontally denied beating the Respondent and that had the lower Court considered the entire paragraphs of the counter affidavit, it would have found that the Appellants made no such admission and that this would have affected the outcome of the case. ​Reading through the above reproduced excerpts of the judgment of the lower Court, it is correct that the lower Court found that the Appellants made such an admission and that it did so on the ground that, in specifying the paragraphs of the affidavit of the Respondent they were denying in paragraph 5(a) of the counter affidavit, the Appellants omitted to mention paragraph 18 wherein the Respondent deposed to those facts.

There is nothing in the deliberations in the judgment showing or suggesting that the lower Court considered the other paragraphs in the counter affidavit before it came to this conclusion.

The lower Court particularly failed to refer to and consider the contents of paragraph 5(q) of the counter affidavit which reads: “That throughout the exercise of searching, the 4th, 5th and 6th Respondents never beat the Applicant, the Applicant resisted arrest and in the course of the struggle to restrain the Applicant from running away, the Applicant and 4th and 5th Respondents fell down and sustained injuries.

The Applicant was conscious throughout the searching exercise and no beating ever took place.” The Appellants, in this paragraph, not only denied pouncing on the Respondent, jacking his gown and punching him in the mouth, they said the Respondent was never beaten and proceeded to explain how the Respondent sustained the injuries to his mouth and why they leg-cuffed him.

It is elementary that in the determining whether or not a party has made an admission, the entire averments in the pleading or the entire depositions in the affidavit of the party must be read and considered together as a whole, and not just one or some of the paragraphs therein in isolation – Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 519, United Bank for Africa Plc Vs Ibafon Chemicals Ltd (2014) 6 NWLR (Pt 1402) 125, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, Social Democratic Party Vs Biem (2019) LPELR-46871(CA), Orubo Vs State (2021) 16 NWLR (pt 1803) 549. ​The lower Court very evidently failed to consider the totality of the depositions in counter affidavit of the Appellants as a whole in coming to the conclusion that the Appellants admitted beating and injuring the Respondent.

A read through the above reproduced excerpt of the judgment shows that it was on the basis of the alleged admission by the Appellants, coupled with the fact that the parties agreed that nothing incriminating was found on the Respondent during the search, that the lower Court entered judgment and granted the claims of the Respondent.

The judgment of the lower Court was thus predicated on an improper evaluation of the totality of the affidavit evidence presented before it by the parties. ​The portion of the counter affidavit of the Appellants that the lower Court failed to consider and evaluate was their case that there were three passengers on the motorcycle that the fourth to the sixth Appellants flagged down for searching and that they first searched the rider of the motorcycle and then the Respondent, and they asked the Respondent to step aside to enable them conduct a search on the third passenger.

The Appellants deposed that rather than step aside, the Respondent starting abusing the officers and created a scene which attracted other persons and in the course of which the officers were prevented from searching the third passenger on the motorcycle and who escaped from the scene of the search. They deposed that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

The Appellants deposed that the Respondent resisted the arrest and that in the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that the officers did not beat the Respondent and that the Respondent was conscious the whole time. The Appellants deposed that when the officers succeeded in arresting the Respondent and he was leg-cuffed to restrain him from running away with the intent of taking him to their office in Hadeija.

They deposed that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent. ​There is nothing in the processes filed by the Respondent disputing that the fourth to the sixth Appellants were carrying out their lawful duties along the Kano/Gumel highway on the day in question when they flagged down the motorcycle conveying the Respondent with the intent to carry out a search of the rider and passenger(s).

Now, if the facts in these depositions of the Appellants are indeed correct, the act of the Respondent in obstructing the officers in the course of carrying out their lawful duty was wrongful and opened him up for arrest and that his resisting of arrest was wrongful and that officers would have acted rightly in enforcing the arrest and in leg-cuffing the Respondent to restrain in him from running away. This will mean that the fourth to the sixth Appellants acted legally and that their actions were not in breach of the fundamental rights of the Respondent.

After all, it is settled law that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.

What the above translates to is that the portion of the counter affidavit of the Appellants that the lower Court ignored and failed to consider and evaluate was a very material and substantial part of the case of the Respondent and which could have, if properly considered and evaluated, exonerated them from the allegations made by the Respondent. Therefore, the failure of the lower Court to evaluate the entire contents of the counter affidavit of the Appellants amounted to a breach of their right to fair hearing and occasioned them a substantial miscarriage of justice.

The judgment of the lower Court is thus unsustainable and cannot be allowed to stand Arisons Trading & Engineering Company Ltd Vs The Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26, Olanrewaju Vs Oyesomi (2014) LPELR-22695(SC), Union Bank of Nigeria Plc Vs Bear Marine Services Ltd (2018) LPELR-43692(SC), Ojo Vs State (2021) 3 NWLR (Pt 1764) 435. Counsel to both parties have suggested that this Court should, where it finds that the lower Court improperly evaluated the affidavit evidence of the parties, proceed to evaluate the affidavit evidence and enter the appropriate judgment.

It is correct that this Court has the power to so reevaluate evidence and enter appropriate judgment where the lower Court is guilty of improper evaluation of evidence – ABC Transport Co Ltd Vs Omotoye (2019) 14 NWLR (Pt 1692) 197. Yankey Vs Austin (2021) 1 NWLR (Pt 1756) 130, Ojo Vs State supra.

It is, however, not a power that this Court exercises willy-nilly and its exercise depends on the facts and circumstances of each case. ​In the instant case, when the narration of events by the Respondent in his affidavit in support is put side by side with the story of the events related by the Appellants in their joint counter affidavit, there a clear irreconcilable conflict on germane, significant and material facts that cannot be overlooked by the Court.

It is correct, as stated by Counsel to the Respondent, that such conflict in affidavit evidence may be resolved either by resort to documentary evidence attached to the affidavits or by the calling oral evidence – Ahmed Vs Minister, Internal Affairs (2002) 15 NWLR (Pt 790) 239, Eze Vs All Progressive Grand Alliance (2020) 3 NWLR (Pt 1712) 413, Amatonjie Vs Chisco Transport (Nig) Ltd (2021) 9 NWLR (Pt 1780) 62. ​Only the Respondent attached documentary exhibits to his affidavit and, contrary to the assertion of Counsel to the Respondent, none of them provides any assistance towards the resolution of the identified conflict in the affidavits of the parties.

The only way the conflict can be resolved, therefore, is through the calling of oral evidence. Here lies the handicap of this Court in exercising its power to re-evaluate the affidavit evidence of the parties. This is an appellate Court and the calling of oral evidence is not part of its modus operandi. It is the lower Court that operates in the realm of calling for oral evidence.

This Court thus declines the invitation of Counsel to the parties to reevaluate the affidavit evidence of the parties and will remit the case to the lower Court for a hearing on the full strength of the affidavit evidence of the parties.

The first issue for determination is resolved in favour of the Appellants. ​This takes us to the second issue for determination, which is – in the case of first issue for determination being answered in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case. ​The question that arises is, whether, in view of the resolution of the first issue for determination in the negative, this Court should proceed to resolve the second issue for determination?

One of the most firmly established principles of judging and judgment writing is that it is incumbent on a lower Court in the judicial hierarchy to resolve all the issues for determination raised or submitted by the parties for adjudication and not select one or some of the issues and decide the case thereon.

The rationale for this is so that if it turns out on a further challenge to a higher Court that its findings on the selected issue or issues are wrong, the higher Court will not be faced with a dilemma of whether to remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits – Brawal Shipping Nig. Ltd Vs F. I.

Onwadike Co Ltd (2000) 6 SCNJ 508 at 522, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Stowe Vs Ben-Stowe (2012) 9 NWLR (Pt 1306) 450, University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1, Honeywell Flour Mills Vs Ecobank Nigeria Ltd (2018) LPELR 45127(SC), Onwe Vs State (2018) 5 NWLR (Pt 1612) 217, Sarki Vs All Progressive Congress (2020) 1 NWLR (Pt 1706) 515 at 546C-F. The rule is however not absolute. It admits exceptions, i.e. situations where, after resolving a determinant issue in a matter, a lower Court need not proceed to resolve other issues in the matter.

These are: (i) where the issue resolved is one of breach of right of fair hearing, which renders the entire proceedings a nullity, the Court need not proceed to resolve the other issues –Idakwo Vs Ejiga (2002) 13 NWLR (Pt 783) 156, Orugbo Vs Una (2002) 16 NWLR (Pt 792) 175, C. N.

Okpala & Sons Ltd Vs Nigerian Breweries Plc (2018) 9 NWLR (Pt 1623) 16; (ii) where the lower Court is restricted by statute from going forth to determine the other issues; (iii) where an intermediate Court finds that the lower Court acted improperly in such manner that requires the case to be re-heard by the lower Court or by a Court of coordinate jurisdiction, it should not proceed to pronounce on the merit of the issues argued if the same issues would still arise at the fresh hearing of the case – Sanusi Vs Ameyogun (1992) 4 NWLR (Pt 237) 527 at 550-551, Tiga Green Farms Agricultural (Nig) Ltd Vs Mitsui O.

S. K. Lines Ltd (2005) 17 NWLR (Pt 953) 70 at 86-87 and Five Star Industry Ltd Vs Bank of Industry Ltd (2017) LPELR 44029(CA); and (iv) where the issue resolved by the lower Court is one of jurisdiction and it is on a ground which has been settled beyond peradventure by the Supreme Court and on which the Supreme Court has been unanimously resolute, such that the resolution of the other issues will amount to an academic exercise –KLM Royal Dutch Airlines Vs Toba (2014) LPELR-23993(CA). ​The present situation, in this case, comes within the third exception to the rule.

The resolution of this Court under the first issue for determination is that the matter be remitted to the lower Court for a re-hearing of the entire case on the merits, and this includes the award of damages made by the lower Court. It will not be proper for this Court to proceed to pronounce on the second issue for determination in the circumstances. The second issue for determination is hereby declined and struck out. In conclusion, this Court finds merits in appeal and it is hereby allowed.

The judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018 is set aside for having been predicated on an improper evaluation of the affidavit evidence of the parties. The case file is remitted to the lower Court for a re-hearing of the case and the resolution of the obvious conflicts in the affidavit evidence of the parties by another Judge. The matter should be granted accelerated hearing. The parties shall bear their respective costs of the appeal.

These shall be the orders of the Court. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE O. ABIRU, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother HABEEB ADEWALE O. ABIRU, JCA obliged me the draft of the leading judgment delivered by him just now. For the reasons ably considered in the judgment that tallied with mine, I too found the appeal meritorious. The appeal is allowed by me too. ​I abide by the consequential orders in the leading judgment.

Judgment

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice M. A. Ikpambese in Suit No. MHC/159/2011, on the 6th day of February, 2017, wherein the trial Court entered judgment in favor of the Plaintiff. The Appellant was the Defendant, while the Respondent was the Plaintiff at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court.

The Record of Appeal was compiled and transmitted to this Court on the 28th of March, 2017. The Appellant’s brief was amended and same was filed on the 29th of December, 2021, while the Respondent’s brief of argument was filed on the 20th of January, 2022. The Appellant upon being served with the Respondent’s brief of argument, did not file any reply brief in answer on point of law to the Respondent’s submissions. At the hearing of the appeal, counsel to both Appellant and Respondent adopted their respective briefs.

The Appellant amended his notice of appeal, and the said amended Notice of Appeal which contains 10 grounds of appeal was filed on the 3rd of December, 2021. The Respondent who was Plaintiff at the trial Court commenced this suit by a writ of summons dated the 10th of May, 2011, and filed on the 11th day of May, 2011, which was issued to the Respondent who was tagged as defendant at the trial Court.

The reliefs sought by the Respondent against the Appellant by Paragraph 11 of the statement of claim accompanying the writ were amended and by paragraph 12 of Respondent’s amended statement of claim. The Respondent’s claims against the Appellant by paragraph 12 of his proposed amended statement of claim are as follows: a. An order for immediate payment of compensation to the tune of Twenty Six Million (N26,000,000) only for the unathourized acts of trespass and for the destruction of economic crops and other sundry valuables on the Plaintiff’s family land. b.

General damages in the sum of Five Million Naira N50000.00. TOTAL – Twenty-three percent of the compensation claimed for the delay in payment of same. c. Any other equitable or legal that will meet the justice of this case. See page 307 of the Record of Appeal.

BRIEF STATEMENT OF FACTS The case of the Respondent against the Appellant is that he is the family head representing a large family unit known and called Antiv family, numbering thousands of people with a large parcel of land situate at Antiv village near College of Advance and Professional Studies, Uni Agric Road Nyiev, Makurdi Benue State. That as family head of a large member of about 119 members, he own a large parcel of land with a lot of cultivation of cash crops, economic tress ranging from fish ponds, yams, cassava, millet, rice, mangoes, oranges and arable plain farmland.

The Respondent’s case is that in or about the year 2010, the Appellant came unto their land unauthorized and without due process of law started construction of electricity generation work trespassing unto his farmland and that of his family members, and when the Respondent became aware of the Appellant’s activities, he approached them and demanded for compensation for unauthorized acts of trespass and destruction of economic valuables, but the Appellant failed, refused and neglected to answer him. ​It is the Respondent’s case that he consulted his counsel to discuss with the Appellant on the issue, but the Appellant wouldn’t listen to his counsel, hence, the institution of this suit as the Respondent has suffered a lot of economic loss by acts of the Appellant on his lands and that of 119 family members.

See page 4–5 of the Record of Appeal. The Appellant’s defence to the claim of the Respondent was that she is carrying out a project of transmission line (330kv Power line Jos–Makurdi) which was conceived as far back as 2006, and same is done with tax payers monies and the project is to help with the poor power supply problem in the country.

That out of the 286 kilometer transmission line which cuts across several states and communities, it is only the Respondent’s complaint that seeks to cripple the national project that is for the general public interest. ​It is the Appellant’s case that several billions of naira have been expended in the project, and farmlands with improvement on it who are affected by the power lines have been compensated as the payment of compensation is not done because a claimant has a land, but based on the improvement on the land.

That compensations have been duly paid to affected communities and notice to quit issued before the project commenced. It is the Appellant’s case that most of the claimants are land speculators and they have been paid already but are returning with a different name and identity for second payment as any person with a genuine complaint has been compensated including the Antiv family.

Therefore, the Appellant is surprised by the Respondent’s case that the Antiv family had not been compensated, as the Respondent himself was at the compensation venue as an observer and representative of the local government. See pages 27–29 of the Record of Appeal. ISSUES FOR DETERMINATION The Appellant for the determination of this appeal distilled seven issues for determination as follows: 1. Whether the Learned Trial Judge was right to have admitted “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011? (Ground 1). 2.

Whether the Learned Trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who is not the maker? (Ground 3).

3. Whether the Learned Trial Judge was right to have treated “Exhibit ANT 1” as a product of an expert when there was no such evidence before the Court that PWII was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent. (Grounds 2 and 4). 4.

Whether the Learned Trial Judge was right to have awarded N26,000,000.00 special damages when same was not pleaded and particularized as required by law. (Ground 5). 5. Whether the Learned Trial Judge was right to have awarded the sum of N31,000,000,000 (Thirty One Million Naira) only as special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to judgment of the Honorable Court. (Grounds 6 and 7). 6.

Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) general damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same injury. (Ground 8). 7. Whether from the totality of evidence adduced at the trial Court, the judgment of the learned trial Judge is not against the weight of evidence. (Ground 9). The Respondent adopted issues one and two of the Appellant and formulated three other issues.

The three issues which are not tied to any ground of appeal read as follows: ISSUE 3 Whether the Appellant’s issue three does not tantamount to prolixity or proliferation of Grounds and issues of Appeal and not tailored to the real issue of compensation in suit no. MHC/159/2011 and valid in law to allow this appeal. ISSUE 4 Whether Plaintiff’s issues 4, 5, 6, & 7 does not tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of relief claimed.

Issue 6 Whether the totality of Appellant’s countenance before the trial Court does not qualify as a waiver of her right to defend suit No. MHC/159/2011. I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and I sincerely believe that the issues formulated by the Appellant are apt to determine this Appeal. The Respondent did not tie his issues 6 to any ground of appeal, therefore his submissions under there goes to no issue.

However, issues 3 and 4 made reference to issues 3, and issues 4, 5, 6 & 7 argued by the Appellant, therefore I shall consider the two issues as response to the Appellant’s argument in issues 3, 4, 4, 6, and 7 accordingly. I shall adopt the issues distilled in the Appellant’s brief and consider the submissions of Respondent as noted in the determination of this appeal. ISSUE ONE 1. Whether the Learned Trial Judge was right to have admitted “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011? (Ground 1).

APPELLANT’S SUBMISSION ON ISSUE ONE Counsel commenced his argument in this issue by stating that the grouse of the Appellant in this issue for determination is that the learned trial Judge was wrong to have admitted in evidence “EXHIBIT ANT 1” (Assessment of Compensation For Tse Antiv Family Community) and used it as a basis for awarding N26,000,000.00 (Twenty Six Million Naira) only as special damages to the Respondent, when EXHIBIT ANT 1 was made only in January 2012, but smuggled into the proceeding vide a Motion No. MHC/282M/2015 granted on 15/01/2016.

Therefore EXHIBIT ANT 1 was certainly made when proceedings were already pending in the trial Court in flagrant breach of Section 83 (3) of the Evidence Act 2011. Counsel submitted that “EXHIBIT ANT 1” which was the valuation report from Ngobar & Co., Estate Surveyors & Valuers ought not to be admitted in evidence as the document was produced during the pendency of the suit.

Counsel cited S. 83(3) of the Evidence Act 2011 which reads thus: “(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”. ​Counsel contended that the trial Court admitted “EXHIBIT ANT 1” even though it was objected to the trial Court admitted it and the said exhibit formed the basis of the judgment of the Court.

Although the trial Court admitted in his ruling that the document was made during the pendency of the suit, yet the Court admitted it as “EXHIBIT ANT 1”. Counsel while referring this Court to the authority of Aliyu v.

Bulaki (2019) LPELR 46513 per Honourable Justice AMINA AUDI WAMBAI JCA at pages 27-28 where the Court expunged documents admitted in similar circumstance in contravention of S. 83 (3) of the Evidence Act and urged this Court to expunge “EXHIBIT ANT 1” from the record as he the Respondent commissioned the production of the document to aid him or enhance his case 55 months after the commencement of the suit.

Counsel submitted in rounding up his argument under this issue that by the above authority, the learned trial Judge was wrong to have admitted “EXHIBIT ANT 1” in evidence, and counsel urged this Court to expunge “EXHIBIT ANT 1” from the record and hold that it was inadmissible, as it was made to enhance the Respondent’s claim at the lower Court and resolve this issue in the negative.

RESPONDENT’S SUBMISSION ON ISSUE ONE In response to this issue, the Respondent contended that the trial Court was right in law to have admitted EXH ANT1 in evidence, as although the Court of Appeal is clothed with enormous discretionary powers to reject evidence on appeal, however this is restricted to a situation where the evidence in question is totally inadmissible in law.

And nevertheless, if such evidence is only admissible upon satisfaction of certain conditions, the failure of opposing party to oppose its admissibility before the trial Court, as in the instant case, will deprive him of the right to challenge its admissibility on appeal and the appellate Court, will be aloof in such a circumstance. Counsel refers the Court to the case of Dagaci of Dere VS Dagaci of Ebwa (2006) All FWLR (Pt. 306) 786. S.C, and urged on the Court to discountenance Appellant’s contention on issue one, as not being meritorious, frivolous and of no substance in law.

ISSUE TWO Whether the Learned Trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who is not the maker? (Ground 3).

APPELLANT’S COUNSEL SUBMISSION The Appellant under this issue attacked the maker of EXHIBIT ANT 1 and called on this Court to determine whether PW II, Surveyor Justin Ormye who tendered “EXHIBIT ANT 1” in evidence who was not its maker, as the document was prepared and signed by ABU JIMAH UMORU who claimed to be an associate consultant in the firm of NGOBAR & CO., can tender the said document in flagrant breach of Section 83 (1) of the Evidence Act, 2011, as only the maker of a document is legally competent to tender it.

Counsel submitted that the Respondent did not lead any shred of evidence as to why the purported maker, Abu Jimah Umoru was not available to tender the said document as he is the maker. Counsel referred this Court to the authority of Flash Fixed ODDS Limited v. Chief J.Q. Akatugba (2001) FWLR. (Pt. 76) 709 at 730 para A-E per TOBI, J.C.A to submit that where a document is tendered by a person who is not its maker, such a document cannot be given any probative value.

Counsel then rounded up by submitting that the learned trial Judge was wrong to have placed any evidential value and attach any weight to “EXHIBIT ANT 1” which was nothing but documentary hearsay. Counsel urged this Court to invoke the provision of Section 167 (d) of the Evidence Act, 2011 and hold that failure to call Abu Jimah Umoru to come and testify would not be favourable to the Respondent.

And that this Court should answer this issue for determination in the negative and not to attach any weight to EXHIBIT ANT 1 as the lower Court attached heavy weight to it as a basis for its judgment and allow the appeal on this issue. RESPONDENT’S COUNSEL SUBMISSION On this issue, Respondent’s counsel contended that the learned trial Judge was right to have admitted Exhibit ANT 1 in evidence through PWII. This is because, the learned trial Judge cogently advanced reasons that legally warranted admissibility of Exhibit ANT 1.

Pertinently, the learned trial Judge’s reason was that there existed abundant and unchallenged evidence that the PW II is from the Estate valuers of Nogbar & Co. Moreover, the Appellant’s counsel who had ample opportunity to cross-examine the PW2, in order to prove if he was not qualified to practice as a surveyor, failed, neglected or refused to do so. ​That the PWII, through whom the instant Exhibit was tendered, is an estate valuer, working under the platform of Nogbar & Co.

And the hallmark of admissibility being relevancy and in the face of plaintiff counsel’s concession, his Lordship was procedurally justified admitting the Exhibit in evidence. My Lords, in a scenario as above, the learned trial Judge had no option than to have accepted him as he did. Counsel therefore prayed this Court to resolve issue two in favour of the Respondent, by holding that the learned trial Judge did not err by accepting PW 2’s evidence at trial. ISSUE THREE 1.

Whether the Learned Trial Judge was right to have treated “Exhibit ANT 1” as a product of an expert when there was no such evidence before the Court that PWII was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent. (Grounds 2 and 4).

APPELLANT’S COUNSEL SUBMISSIONS The Appellant’s grievances under this issue is that the learned trial Judge was wrong to have treated “EXHIBIT ANT 1” as a product of an expert as no atom of evidence was pleaded or proffered that PW II was an expert. The qualifications and experiences of PW II was not in evidence as his evidence at page 359 of the record was to the effect that “I am a practicing Estate Surveyor I remember making a witness statement on oath on 19/6/2016. This is the said sworn statement to me in Court.

There is a valuation report attached and I can identify it with the logo of our estate firm and no more”. Counsel contended that a critical look at EXH ANT 1 will reveal the following: i. EXHIBIT ANT 1 (assessment of compensation) is in the firm name of Ngobar & Co. ii. Abu Jimab Umoru signed the said EXHIBIT ANT 1 without any nexus as he did not sign for Ngobar & Co. iii.

No nexus between Abu Jimah Umoru and PW II with the said exhibit as the seal and stamp of Abu Jimah Umoru and PW II were not affixed to “EXHIBIT ANT 1” to show that they were registered by the ESTATE SURVEYORS AND VALUATION REGISTRATION BOARD ACT CAP E 13 Laws of the Federation of Nigeria 2004 as fit and proper to practice as such in Nigeria by virtue of part 4 (1) of the ESTATE SURVEYING AND VALUATION REGULATION 2014 B219 - 228.

Counsel quoted the provisions part 4 (1) of the ESTATE SURVEYORS AND VALUATION REGISTRATION BOARD ACT CAP E 13 which provides as follows: “A registered Estate Surveyor and Valuer shall be issued with a Seal and Stamp on registration by the Estate Surveyors and Valuers Registration Board of Nigeria (hereinafter referred to as, “the Board’). All professional duties performed by or emanating from the registered Estate Surveyor and Valuer or under his hand shall bear the Seal and Stamp issued by the Board.

The Seal and Stamp issued by the Board shall not be replicated under any circumstances.” Also in part II 13(a) (b). A registered Estate Surveyor and Valuer or firm shall not issue a valuation report under his registered number unless such valuation. a. follows the prescribed standard set out by the Board; and b. bears the Stamp and Seal issued by the Board.

On the strength of the law cited above, Counsel contended that EXHIBIT ANT 1 was not Stamped and Sealed which made ‘EXHIBIT ANT 1 to contravene part 4 (1) and (13 a & b) of the Estate Surveying and Valuation Registration 2014 which made PW II not to qualify as an expert or Estate Surveyor and the trial Judge ought not to attach any weight to same as a product of an expert. Counsel on the functions of an expert witness referred to the authority of All Nigeria Peoples Party and Anor v. Alhaji Saidu Nasamu Usman & 2 ORS (2009) ALL FWLR (Pt. 463) 1292 1342-1343.

Counsel also referred to the authority of Henry Tuah Mary v. Michael (2011) ALL FWLR (Pt. 590) 1366 AT (Pp. 1375-1376, PARAS H on the import of S. 57 of the Evidence Act and the place of opinion evidence by expert witness and submitted that it was wrong for the trial Judge to have admitted EXHIBIT ANT 1 and attached heavy weight to it and used it as basis for giving judgment to the Respondent.

More so, there was no sworn deposition made by the PWII on 19/06/2016, therefore Counsel urged the Court to answer the issue in the negative and hold that EXHIBIT ANT 1 is not a product of expert and PWII and EXHIBIT ANT 1 should be expunged from the record. RESPONDENT’S COUNSEL SUBMISSION Respondent in response to Appellant’s issue three formulated his issue 3 which reads as follows: Whether the Appellant’s issue three does not tantamount to prolixity or proliferation of Grounds and issues of appeal and not tailored to the real issue of compensation in suit no.

MHC/159/2011 and valid in law to allow this appeal. It is the Respondent’s contention that Appellant’s issues 3 constitute a wanton prolixity and proliferation of grounds formulated and issues by the Appellant’s counsel in this appeal, are not tailored to real issue of compensation in suit No. MHC/159/2011 and this is fatal to the case of the Appellant. Counsel submitted that the main thrust of the Respondent’s claim before the trial Court is on page (307) of the record.

Therefore gleaned from the standpoint of the Respondent’s claim, it is crystal clear that the Appellant’s issue three, constitutes exaggeration or proliferation of grounds and issues distilled, not accorded or have any bearing with the core issue in suit No. MHC/159/2011. Counsel referred to the authority of Olaide Ibrahim v. S.A Ojomo & 3 Ors (2004) 4 M.J.S.Cg. 143 R.9 para.

B and submitted that the Appellant’s ground formulated and issues distilled not having direct bearing with the sole issue of compensation constitute prolixity or proliferation of grounds of appeal and issues for Court’s determination. Counsel then urged this Court to accept this contention and discountenance the numerous grounds of appeal, inclusive of issue three, so proliferated, with other issues therein and disallow same as lacking in merit and substance, not having bearing with the sole issue before the trial Court.

ISSUE FOUR Whether the Learned Trial Judge was right to have awarded N26,000,000.00 special damages when same was not pleaded and particularized as required by law. (Ground 5). APPELLANT’S COUNSEL SUBMISSION The complaint of Appellant by this issue is that the Respondent at trial Court claimed N26,000,000.00 as compensation for unauthorized acts of trespass and destruction of economic crops and other sundry valuables on the Respondent’s family land without specifically pleading the economic crops and sundry valuables allegedly destroyed as well as value of the said damage.

Counsel referred to the authority of Asman Man and Mech Ltd v. Spring Bank Plc (2012) ALL FWLR (Pt. 613) 1864 AT 1898-1899 paras G-C on the need to particularize special damages. ​Counsel submitted that a cursory look at the Respondent’s Amended Statement of Claim shows the failure of the Respondent to particularize and strictly plead the said damages to the economic crops and sundry valuables to warrant the grant of N26,000,000.00 as special damage, as all Respondent made were sweeping statements.

That the best the Respondent has done is to make reference in paragraph 9 of the amended statement of claim to the Estate Surveyor’s report. Counsel contended that this is not proper pleading and particularization of alleged acts of trespass done to Respondent’s land. Counsel contended further that even the said Estate Surveyor’s report was only smuggled in while trial was underway and was made on the recommendation of the Respondent’s counsel.

Moreover the said Estate Surveyor’s report is only an opinion of an expert and does not amount to strict proof of the act of trespass to Respondent’s land. Counsel then relied on the authority of Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 AT 638 para. C-E and went further to submit that it is settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence.

Without proof, no special damages can be awarded. ​Counsel also submitted that if various items are claimed for, the Respondent can only be entitled to be awarded any of those items of which sufficient evidence is available. However, where a Respondent sets out to adduce evidence in proof of special damage claimed by him and the evidence was deficient or unsatisfactory or rejected by the Court; that should put an end to that claim. That the learned trial Judge was not entitled to embark upon his own assessment of the special damages using his own conceived perimeter in place of evidence.

Counsel relied on the authority of Horst Sommer & 2 Ors v. Federal Housing Authority (1992) 1 NWLR (pt. 219) 548 at page 560 at paras. E G Counsel then rounded his submission on this issue by stating that no special damages were proved or could have been proved upon the pleadings and evidence adduced by the Respondent; thus, the award of Twenty Six Million Naira (N26,000,000.00) as special damages was unwarranted, unmerited, made in error and ought be set aside.

Counsel urge this Court to hold that the Learned Trial Judge was wrong to have awarded special damages of N26,000,000.00 (Twenty Six Million Naira) only and resolve the issue in favour of the Appellant.

RESPONDENT’S COUNSEL SUBMISSION The Respondent did not adopt issue 4 of the Appellant but formulated issue 4 of his own to wit: Whether Plaintiff’s issues 4, 5, 6, & 7 does not tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of relief claimed On that note, Counsel while urging this Court to hold in the affirmative that Appellant’s issues 4,5 6 and 7 as constituted smacks of infraction of the Rule against approbating and reprobating submitted that gleaned from her conduct in suit the Appellant with her battered procedural image cannot be allowed in law to take advantage of her wrong act as demonstrated in her willful and inscrutable failure, omission or refusal to defend suit No: MHC/159/2011.

That to do so will be tantamount to approbating and reprobating. Counsel referred to the case of Agbaregh VS Mimra (2008) All FWLR (Pt. 371) 1669, and submitted that this pretext, would manifestly be unjust and also portray the law as an instrument of injustice. Counsel then relied on the case of Agbidigbi VS Agbidigbi (1996) 6 SCNJ 105.

Counsel urged this Court to discountenance Appellant’s issues 4, 5, 6 and 7 as lacking weight in legal reasoning to support the case of the Appellant. That Appellant’s issues so distilled are not valid in law regarding the subject matter in this suit, and same is not deserving of invocation of the discretionary powers of this Court in his favour, when the Appellant as defendant failed, neglected and waived her legal right to defend the suit No. MHC /159/2011 as opposed to suits No. MHC/185/2012 and MHC/77/2011 which latter suits were not pending before the trial Court.

Counsel submitted that the Appellant’s issues are incurably invalid, absurd, misleading and not deserving of the unfettered discretionary powers of this Honourable Court in her favour.

Counsel reminded his Court not to be oblivious of the well-known notorious equitable principles in our jurisprudence that says “Equity” protects the vigilant and not the indolent, and contended that this equitable doctrine becomes apposite or germane against the case of the Appellant in this appeal. ​Counsel submitted further that this is so because from the genesis to revelation of suit No, MHC/159/2011 the Appellant as defendant never demonstrated any act of vigilance nor neither is she coming to equity with clean hands.

Counsel referred this Court to the judgment of the trial Court on (pages 380-384 of the record) where the trial Judge painstakingly had painted a grim picture of several, ridiculous and inexcusable traits of over indulgences to the Appellant’s counsel, despite his numerous acts of in diligence, ranging from invention of strange and non-existing suits numbers, and abandonment of application on notice. It is Respondent’s Counsel’s contention that these flaws are exacerbated by violent, flagrant and reckless disregard to the integrity of Court.

For instance, the Appellant’s counsel took 21 days on his volition to file and adopt his final address yet failed, omitted or refused to do so. My Lords, above are manifest indicators from your Lordship, to agree that the Appellant failed the equitable test of being vigilant or coming to equity with clean hands Counsel submitted again that by these numerous infractions above stated, this Court is urged to hold that the Appellant had waived his legal right to defend suit No. MHC/159/2011 and ought not to complain.

Furthermore, on the requisite yardstick or standard of proving all civil cases being the balance of probabilities, it is on record that only the Respondent/plaintiff before the trial Court testified with his lone witness to prove his claim. As seen from pages 357-358 of record and pages 359-362 of the printed record. Therefore, it is not disputable that these testimonies from PWI and PWII were unchallenged.

Counsel on that note submitted that it is also the law that given a scenario as in the instant case, the law allows the trial Court to evaluate the unchallenged evidence of the plaintiff which was what the trial Court did in suit No. MHC/159/2011. Counsel relied on the cases of Odulaja VS Haddad (1973) 11 SC 53 and Omoregbe VS Daniel Pendor Lawani (1980) 4.S.0 108 and 117.

That the Rules of procedure dictates that before a Judge before whom evidence is adduced by parties in all a civil cases comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both as properly captured and amplified by the trial Judge in his judgment of 6th February, 2017.

ISSUE FIVE Whether the Learned Trial Judge was right to have awarded the sum of N31,000,000,000 (Thirty One Million Naira) only as special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to judgment of the Honorable Court. (Grounds 6 and 7). ​APPELLANT’S COUNSEL SUBMISSION On this issue, Counsel started by saying that Respondent has failed to prove his case to be entitled to an award of N31,000,000.00 (Thirty One Million Naira) only.

By paragraph 12 (a) & (b) of the Respondent’s proposed amended statement of claim, the Respondent was claiming special damages of N26,000,000.00 (Twenty Six Million Naira) only and general damages of N5,000,000.00 (Five Million Naira) only.

That by paragraph 3 of the Respondent’s amended statement of claim dated and filed on 19th November, 2014, the Respondent averred that his family members are 119 in number while on page 9 of the records particularly paragraph 2, the Respondent averred thus” “That I have the consent of 124 family members and that of my counsel P.I Ackosseh Esq. of counsel to depose to this oath”.

Counsel submitted further that on page 11-12 of the records, there is a document titled “ANTIV LIST OF PERSONS NOT COMPENSATED OVER TRESPASS TO THEIR PARCEL OF LAND” which comprises of 123 persons while on pages 223-253 is a document emanating from Ngobar & Co., Estate Surveyors & Valuers the number of persons whom the valuation was carried out on their behalf are 156 in number.

That it is equally worthy of note that the grand total of the valuation in “EXHIBIT ANT 1” is N15,919,295.26 (Fifteen Million, Nine Hundred and Nineteen Thousand, Two Hundred and Ninety-Five Naira, Twenty Six Kobo) only. Counsel therefore contended that with all the inconsistencies listed, one wonders how the trial Court came to the conclusion that the Respondent has proved his case and awarded damages as per their paragraph 12 (a) and (b), as it is trite that where there are material inconsistencies in the case of a party, the Court will resolve same against the party.

See Alhaji Jawando & Anor v. Madam Falilat Bakare (2006) ALL FWLR (Pt. 332) 1590 @ 1609. ​Counsel submitted further that assuming but not conceding that EXHIBIT ANT 1 formed the basis for the decision now on appeal, another dispute that ought to arise is, who amongst the 156 persons in “EXHIBIT ANT 1” were part of the suit of the Respondent as the Respondent had hitherto stated, the number of Respondent he was representing to be 119 and confirmed same under cross-examination. That it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment.

Even where the defendant has failed to rebut the case of a plaintiff either by cross-examination or by defending the suit, the plaintiff (Respondent) was still duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence. Counsel relied on the authorities of SMAB Inter-Trade Ltd v. Bulangu (2013) ALL FWLR (Pt. 693) P. 2019 @ PP. 2033-2034 paras G-B and D. S.A.D.P.I v.

Ofonye (2008) All FWLR (Pt. 402) 1068 at 1090–1091, Paras G–A on the duty of the Plaintiff to prove his case on its strength and not the weakness of the Defendant’s case. ​Counsel then contended and submitted against the EXH ANT 1 ought to be admitted in evidence as same violates S. 83 (3) of the Evidence Act, and that the trial Court ought not to grant the reliefs of the Respondent as throughout the length and breadth of Respondent’s pleadings he did not show the extent of his land and that of the other Respondents, what quantity each Respondent has and the extent of damage as a result of trespass alleged to have been committed to the land.

In other words, the Respondent was granted reliefs in respect of unpleaded facts before the trial Court. Counsel relied on the authority of Somorin v. Adekanbi (2012) All FWLR (Pt. 622) 1776 at 1796, Para C. Counsel in rounding up his argument relied on the authority of Ogbeche v. Onoche (1988) 1 NWLR (Pt. 70) 370; Okoronkwo v. Chukueke (1992) 1 NWLR (Pt. 216) 175; Gari v.

Seirafina (NIG) LTD. (2008) ALL FWLR (Pt. 399) 434 to submit that the Respondent failed to plead and prove the economic trees destroyed, and prayed this Court to resolve this issue in his favor and set aside the judgment of the lower Court. ​The Respondent did not make submissions on this issue, but rather formulated issue 4 which he contended that the argument of the Appellant on issues 4, 5, 6, and 7 is tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of the reliefs claimed.

I shall consider the submission of counsel on his issue 4 as his response to issues 4, 5, 6, & 7 of the Appellant accordingly. ISSUE SIX Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) general damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same injury. (Ground 8).

APPELLANT’S COUNSEL SUBMISSION Appellant’s contention by this issue is that it is legally wrong for the Learned Trial Judge to have awarded general damages of N5,000,000.00 (Five Million Naira) only to the Respondent after the learned trial Judge had awarded N26,000,000.00 (Twenty Six Million Naira) as special damages and as compensation for the same trespass alleged to have been committed by the Appellant on the land of the Respondent, as same amounts to double compensation. Counsel relied on the authority of Biliaminu Alao & Anor v.

Inaolan Builders Limited (1990) 7 NWLR (Pt. 160) 36 at 54. ​Counsel urged the Court of Appeal to answer issue No 6 in the affirmative and hold that the Learned Trial Judge was wrong to have awarded general damages of Five Million Naira (N5,000,000.00) only after awarding special general damages of N26,000,000.00 (Twenty Six Million Naira) only for the same injury. ISSUE SEVEN Whether from the totality of evidence adduced at the trial Court, the judgment of the learned trial Judge is not against the weight of evidence. (Ground 9).

APPELLANT’S COUNSEL SUBMISSION The grouse of the Appellant by this issue is that when the pleadings and the sworn deposition/oral and documentary evidence of the Respondent are considered alongside with the facts of this case and the finding of the Learned Trial Judge, it is apparent that the judgment of the lower Court is against the weight of evidence. To show that the judgment of the learned trial Judge is against the weight of evidence Counsel submitted that: a. By the Onamade v. ACB Ltd (1997)1 NWLR (Pt. 480) 123 at 145 at paras. C-D. Emegokwue V Okadigbo (1973) 4 SC 261, Odumosu v.

ACB (1976) 11 SC 261, it is the law that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded, and the Respondent did not plead the economic crops and his special damages were not particularized b. The Learned Trial Judge was carried away by the fact that the evidence of the Respondent at the trial was not challenged and therefore required minimal proof even on the face of material contradictions in the pleading of the Respondent and “EXHIBIT ANT 1”.

The amount stated on assessment of compensation in “EXHIBIT ANT 1” is N15,919,295.26 (Fifteen Million, Nine Hundred and Nineteen Thousand, Two Hundred and Ninety-five Naira, Twenty Six Kobo) only in the valuation certificate purportedly issued by PW II dated 31st day of January 2012.

Counsel submitted that it is the law that when evidence is at variance with pleadings it goes to no issue and paragraph 12(a) of Respondent’s proposed amended statement of claim dated 19th day of November 2014 and filed the same date the Respondent claimed N26,000,000.00 as compensation that is in (EXHIBIT ANT 1) which is at variance with the pleading.

That it is not in all cases that when the defendant failed to rebut the evidence of the plaintiff that the plaintiff will be entitled to judgment especially when the evidence of the plaintiff has been demolished or destroyed through cross-examination and/or the pleadings of the plaintiff is deficient and created doubts which made the case of the plaintiff unreliable, the defendant’s oral unnecessary. Counsel relied on the authorities of Shell Petroleum Development (Nigeria) Limited v. ABBA (2005) ALL FWLR COMPANY (Pt. 257) 1533 CA and Martchem Industries (Nigeria) Limited v.

M.F Kent (WA) Limited (2005) ALL FWLR (Pt. 271) 559. Counsel submitted that the trial Judge shut his eyes to the material contradictions in the pleading and evidence at the trial Court and gave judgment to the Respondent who has not proved his case as required by Sections 131 and 132 of the Evidence Act, 2011. That the Learned Trial Judge was over-generous in the award of N31,000,000.00 damages without reason for the award.

That the Learned Trial Judge failed to consider the apparent conflict in the N26,000,000.00 claimed as special damages in paragraph 12 (a) of the plaintiff’s proposed statement of claim and the assessment in EXHIBIT ANT 1. That the Learned Trial Judge would have dismissed the case of the Respondent that it has not been proved, as the trial Court was over-generous in granting general damages of N5,000,000.00, thereby occasioning Appellant’s grave miscarriage of justice.

As earlier stated, the Respondent did not adopt or formulate any issue to tie to ground 9 of the Appellant’s grounds of appeal which is argued by issue six, I shall consider his issue 4 which made reference to issue 7 argued by the Appellant as his response and argument on issue seven RESOLUTION ISSUE ONE Whether the learned trial Judge was right to have admitted ‘’Exhibit ANT 1’’ in evidence in flagrant breach of Section 83 (3) of the Evidence Act 2011.

Section 83 (3) of the Evidence Act 2011 provides: ‘’Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’’ ​The Supreme Court in U.T.C. (NIG) PLC V. LAWAL (2013) LPELR-23002 (SC) Pages 32-34 paragraphs D-A Per Kekere-Ekun, JSC stated: ‘’The complaint against Exhibits 4 and 5 is that A.K.

Gadzama wrote the letters after the proceedings had commenced thereby rendering them inadmissible within the meaning of Section 90 (3) of the Evidence Law Cap. 39 Laws of Lagos State of Nigeria 1973, Which provides: ‘’Nothing in this Section shall render admissible as evidence and statement made by a person interested at a time when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’’ The provision is in pari materia with Section 91 (3) of the Evidence Act 1990 and Section 83 (1) of the Evidence Act, 2011 (as amended).

A person interested has been described as a person who has a personal interest, financial, material or otherwise in the outcome of the proceedings. An ‘’independent person’’ on the other hand is a person who has no temptation to depart from the truth on one side or the other; a person not swayed by personal interest but completely detached, judicial, impartial and independent. In interpreting the provision, the Courts are enjoined to give the expression a narrow rather than a broad meaning. See: Gbadamosi v. Kabo Travels Ltd. (2010) 8 NWLR (Pt.668) 243; Peterside & Ors v.

Wabara & Ors. (2010) LPELR-CA/PH/188M/2003 at 8 D-G; Anyaebosi v. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt.59) 84; (1987) 6 SCNJ 9 at 22. It has also been held that there must be a real likelihood of bias before a person making a statement can be said to be a ‘’person interested’’. A person acting in an official capacity is generally not considered to be a ‘’person interested’’. In this appeal Exhibit ANT 1 the valuation report from Ngobar & Co., Estate Surveyors & Valuers was procured by the Respondent during the pendency of this suit the said Exhibit is dated 23rd day of January, 2012.

See page 275 of the records, while this suit was filed on 10th day of May, 2011. See pages 1-6 of the records, this position was also stated by the learned trial Judge in his ruling at page 361 of the record where he said the document was made during the pendency of this suit, he ought not to have admitted the said document in evidence thus Exhibit ANT 1 having been procured by the Respondent and made during the pendency of this suit is in contravention of Section 83 (3) of the Evidence Act, 2011 and is hereby expunge from the records.

A wrongfully admitted piece of evidence is not sacrosanct, it is still subject to the closest scrutiny by this Court. The appellate Courts are under a duty to cut down and expunge any evidence that is wrongfully admitted. See OKONKWO OKONJI (ALIAS WARDER & ORS V. GEORGE NJOKANMA & ORS (1999) LPELR-2477 (SC) Page 46. Thus, Issue one is resolved in favour of the Appellant.

ISSUES 2 and 3 TAKEN TOGETHER: ISSUE TWO Whether the learned trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who was not the maker.

And ISSUE THREE Whether the learned trial Judge was right to have treated ‘’Exhibit ANT 1’’ as a product of an expert when there was no such evidence before the Court that PW II was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent.

In the resolution of issue one, I expunge from the record Exhibit ANT 1 so any pronouncement made on issues two and three would be academic exercise, a fruitless effort, in other words, issues two and three are overtaken by the resolution made in issue one in essence issue two and three are lifeless. Appellate Courts do not entertain issues which will amount to embarking on an academic voyage. ISSUE FOUR: Whether the learned trial Judge was right to have awarded N26,000,000.00 Special damages when same was not pleaded and particularized as required by law.

It is trite that Court is strictly bound by the case presented to it as postulated on the pleadings of the parties. Thus parties are bound by their pleadings just as the Court seized of the matter is bound to make its findings only within the scope of the parties’ case as pleaded. It does not lie in the province or powers of the Court to make case for the parties. ​Special damages are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the case that is, because of special circumstances or conditions.

See AHMED & 2 ORS v. CBN (2012) 7 SC (Pt. II) 1 at 26. Special damages are such damages as the law will not infer from the nature of the act and do not follow in ordinary course but are exceptional in character and therefore they must be claimed specially and proved strictly. They denote those pecuniary losses which have crystallized in terms of cash and value in trial. See KALU v. MBUKO (1988) 3 NWLR (Pt. 80) 86 at 90.

Special damages are such that the law will not infer from the nature of the act complained of, they must be specifically pleaded and strictly proven, all the losses claimed on every item must be concrete in terms and value before trial. They do not flow in the ordinary course. See ANYAEJI MARY ANDREW V. MTN NIGERIA COMMUNICATIONS LIMITED (2016) LPELR-41181 (CA) Pages 14-15. The reliefs sought by the Respondent at the lower Court against the Appellant as per his Amended Statement of Claim dated 19th day of November, 2014 have been reproduced earlier by this Court in the course of this judgment.

The said reliefs can also be found on pages 1-2 of the Appellant’s Brief of Argument. ​The reliefs as granted by the lower Court can be found on page 382 of the record where the learned trial Judge in his judgment stated: ‘’The plaintiff is entitled to the reliefs claimed in paragraph 12 (a) (b) and (c) of the amended statement of claim filed on 19th June, 2016. For avoidance of doubts, judgment is entered in favour of the plaintiff against the defendant in the sum of thirty-one million Naira (N31,000,000.00) only.

The 23% interest is captured within the general damages awarded in the judgment sum. A cursory look at the reliefs granted in Respondent’s favour in paragraph 12 (a), (b) and (c) of the said judgment at page 382 of the record shows that the Respondent’s claim granted was for special damages which was not particularize and strictly pleaded and was not proved. The law is settled that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proven with credible evidence. Without proof, the Court cannot award special damages.

See HON.EZE HERBERT OSUJI & ANOR v. ANTHONY ISIOCHA (1989) LPELR-2815(SC) Page 12.

Where the Court below erred in assessment of damages by basing its award on wrong principles of law, such award would be interfered with by the appellate Court. In the instant appeal, the learned trial Judge with respect was not entitled to embark upon his own assessment of special damages using his own conceived perimeter in place of evidence, the amount claimed as special damages was not proved thus issue four is resolved in favour of the Appellant.

ISSUE FIVE: Whether the learned trial Judge was right to have awarded the sum of N31,000,000.00 (Thirty one Million Naira) only Special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to the judgment of the honourable Court.

At page 382 of the record, the learned trial Judge in granting the reliefs sought by the Respondent held: ‘’The plaintiff is therefore entitled to the reliefs claimed as no defence has been validly filed before this Court or evidence adduced by the defendant’’ ​The position of the law as stated by the Appellant’s Counsel is that it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment, even where the defendant has failed to rebut the case of the plaintiff, the Plaintiff is duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence.

This Court in SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU (2013) LPELR-21414 (CA) Pages 18-19 Per MBABA, JCA stated: ‘’The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet v. INEC (2011) All FWLR (Pt. 565) 203 ‘’The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.’’ Nzeribe v. Dave Engr. Co. Ltd (1994) 8 NWLR (Pt. 361) 124.

But because a plaintiff has the duty to prove his claims on the strength of his own case, the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proven the claim. Elias v. Omo-Bare (1982) LPELR-SC 41/1981; (1982) ALL NLR 75; Shittu v. Olawumi (2011) LPELR-CA/AE/38/2010; Alao v. Akano (2005) 11 ALL NWLR (Pt. 935) 160; see also Ogunyomi v. Ogundipe ​(2011) All FWLR (Pt. 594) 188, Where it was held. ‘’It is the duty of the Appellants as plaintiffs in the lower Court to prove their case….

And it is a notorious principle of law that in so doing, they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants.’’ The fact that the Appellant did not file a defence at the lower Court did not ease the burden on the Respondent to prove his claim Exhibit ANT 1 which was the valuation report was wrongly admitted by the lower Court as it was produced during the pendency of the suit in contravention of Section 83 (3) of the Evidence Act, the Respondent’s claim for the award of special damages against the Appellant at the lower Court for the destruction of economic crops was not proved.

It is trite law that special damages must not only be specifically pleaded with relevant particulars but must be strictly proved with credible evidence. Without such proof, no special damages though pleaded can be awarded. See Alhaji Ahmadu Gari v Seirafina Nigeria Limited & Anor (2007) LPELR-8397 (CA) Page 32. The Respondent having failed to prove his claim by credible evidence at the lower Court this issue is hereby resolved in favour of the Appellant.

ISSUE SIX: Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) General damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same. The complaint of the Appellant on this issue is the award of double compensation against him in respect of the same trespass on the land. Compensation is the remuneration or satisfaction for injury or damage of every description. For a party to be entitled to compensation it has to be proved that he suffered injury or damage to the satisfaction of the Court.

The settled position of the law which remains inviolate is that a Court will not award double compensation as damages against the same misdeed. See UNION BANK v. EMOLE (2001) 12 S.C.N.J 74 at 89. In ALHAJI ISIYAKU YAKUBU v. ADAMAWA STATE GOVERNMENT & ORS (2020) LPELR-51114 (CA) Pages 39-40 Per BAYERO, JCA Stated: ‘’The law frowns at award of double compensation. It is the law that where a party has been compensated fully under specific claims, it would be most inappropriate to compensate him again under general damages as that would amount to double compensation.

It is an established principle that if a plaintiff recovers in full under special damages, he cannot be entitled to general damages for that would amount to double compensation. See the case of U.T.C. (Nig.) Plc v. Philips (2012) 6 NWLR (Pt. 1295) 136 at 184.’’ Flowing from the above it is wrong for the learned trial Judge to have awarded the sum of N5,000,000.00 (Five Million Naira) as general damages after awarding special damages of N26,000,000.00 as that was tantamount to double compensation. I resolve issue six in favour of the Appellant.

ISSUE SEVEN: Whether from the totality of evidence adduced at the trial Court, the judgment of the learned trial Judge is not against the weight of evidence? Evaluation of evidence is the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See OYEKOLA v.

AJIBADE (2004) 17 NWLR (Pt.902) 356 at 379. In Mrs. ELIZEBETH IRABOR ZACCALA v. MR. KINSLEY EDOSA & ANOR (2018) 6 NWLR (Pt. 1616) 528 at 545 paragraphs B-D Per M.D. MUHAMMAD, JSC Stated ‘’It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the advantage it has of seeing and from observation of the witnesses, making impressions as they testified.

Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v.

Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.’’ ​It must be born in mind that it is not every error or slip by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. I believe the best starting point towards a just determination of this issue is to examine Exhibit ANT 1 vis-à-vis paragraph 12 (a) of the Respondent’s amended statement of claim.

The amount stated on assessment of compensation in Exhibit ANT 1 is N15,919,295.26 (Fifteen Million, Nine Hundred and Ninety Five Naira, Twenty Six Kobo) only in the valuation certificate tendered by PW II dated 31st day of January, 2012. See page 275 of the record. In paragraph 12 (a) of the Respondent’s amended statement of claim dated and filed on 19th day of November 2014 the Respondent claimed N26,000,000.00 (Twenty Six Million Naira) as compensation. Exhibit ANT 1 is at variance with paragraph 12 (a) of the Respondent’s amended statement of claim.

When evidence is at variance with pleadings it goes to no issue.

An averment of fact in pleadings is not evidence and can never be so construed. It has to be proved by evidence. On this note, I agree with the Appellant that it is not in all cases that when the defendant failed to rebut the evidence of the plaintiff he will be entitled to judgment especially when the evidence of the plaintiff has been demolished or destroyed through cross-examination and/or the pleadings of the plaintiff is deficient and created doubts which made the case of the plaintiff unreliable, the defendant’s oral evidence is unnecessary.

The Supreme Court in MARTCHEM INDUSTRIES NIGERIA LTD V. M.F.

KENT WEST AFRICA LTD (2005) LPELR-1842 (SC) Pages 11-12 Per Oguntade, JSC (as he then was) Stated: ‘’The Court below in reacting to the very unsatisfactory manner in which the trial Court gave judgment in favour of the plaintiff said: ‘’I agree with the submission of the learned Counsel for the Appellant that even where the evidence is one way, in that the other party did not lead evidence in proof of averments in its statement of defence, the Court is not relieved of its bounding duty to consider and evaluate the body of evidence adduced by the plaintiff before ascribing probative value to the pieces of evidence tendered.

The trial Court must ascertain that the evidence before it is credible, admissible and goes into issue before giving judgment to the plaintiff. It is not sufficient, even where the evidence is only one way, as in this case, to give judgment to the plaintiff by merely summarizing the evidence adduced. The learned trial Judge is required to ascribe probative value to the witnesses, review and evaluate the evidence tendered before him. It is only after this exercise that the plaintiff will be entitled to judgment: Okoebor v. Police Council (1998) 9 NWLR (Pt. 566) 534, 544-5; Haruna v.

Salau (1998) 7 NWLR (Pt. 559) 653 and Nwabuoku v. Ottih (1961) All NLR 487, Balogun v. United Bank of West Africa (1992) 6 NWLR (Pt. 247) 336, 354.’’ I think that the Court below was right in the view it expressed in the passage reproduced above.

Even if, as was the case here, the evidence in a case went in one direction in that it was unchallenged, the trial Judge is still expected to examine whether or not the unchallenged evidence was sufficient to establish the claims made by the party in whose favour the unchallenged evidence was given.” ​In the present appeal, the learned trial Judge also awarded double compensation in respect of the sum claimed when he awarded the sum of N26,000,000.00 (Twenty Six Million) claimed by the Respondent as special damages which was not proved and the sum N5,000,000.00 (Five Million Naira) as general damages in respect of the same claim.

See page 382 of the record, this is unwarranted, the law frowns at award of double compensation. See ALHAJI ISIYAKU YAKUBU V. ADAMAWA STATE GOVERNMENT & ORS (Supra) page 39. Taking all these factors into consideration it is glaring that the learned trial Judge did not properly evaluate the evidence before him thus issue seven is hereby resolved in favour of the Appellant. Having resolved issues 1-7 in favour of the Appellant, it means that this appeal succeeds and is allowed the judgment of the Benue State High Court of Justice, Makurdi Judicial Division delivered by Hon. Justice M.A.

KPAMBESE on the 6th day of February, 2017 in suit No MHC/159/11 is HEREBY set aside. Parties are to bear costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in complete agreement with his reasoning and conclusions on all the issues distilled for determination. Having resolved Issues 1-7 in favour of the Appellant it means that this appeal succeeds and is allowed. I also abide by the consequential order setting aside the decision of the lower Court as well as the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I entirely agree with the reasoning and conclusion reached therein. My learned brother has properly in my respected view dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is meritorious and should be allowed. I shall make few comments for the sake of emphasis.

Under Issue One, the Appellant questions the propriety of the trial Court admitting “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011.

Section 83(3) & (4) of the Evidence Act, 2011 provides thus: (3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute is to any fact which the statement might tend to establish. (4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible The import of the Section is that documents made during the course of proceedings are generally not admissible in evidence.

However, there is a proviso therein which I believe will be suitably applied in resolving this issue; the document must be made by a person interested in the proceedings, and a person interested was defined in the case of UTC (NIG) PLC V LAWAL (2013) LPELR-23002 (SC) thus: “Meaning of “person interested” a “person interested” is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends.

It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means “an interest in the legal sense, which imports something to be gained or lost.” See; Holton V. Holton (1946) 2 All ER 534 at 535; Nigeria Social Insurance Trust V. Klifco Nigeria Ltd (2010) 13 NWLR (Pt.1211)307; (2010) 8 SCM 212.” Per ARIWOOLA, J.S.C. The said “Exhibit ANT 1” was prepared and signed by Abu Jimin Umoru an associate in the Firm of Ngobar & Co. on the authority and recommendation of the Respondent in the cause of the proceeding.

Then the exhibit was made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. The said exhibit was not made by the State Government officials who did so in the course of their official duties with nothing personal but purely official to even warrant the exception that Government officials doing their duties cannot fall into the category of persons interested, see B.B.

APUGO V O.H.M.B(2016) 13 NWLR (Pt.1529) 206; PETERSIDE & ORS V WABARA & ORS (2010) LPELR-4847(CA). ​I have gone ahead to produce Section 83(4) because even if the trial Judge in his erroneous finding believes for reasons unknown to our laws that “Exhibit ANT 1” is admissible, he would have averted his mind to the provision of Section 83(4) which is very clear and was not considered by the trial Judge. It was a selective and erroneous application of Subsection 3 without considering Subsection 4 and that is injudicious and made the decision arrived at perverse. Doing so made him fall into error.

The document was made on the recommendation of the Respondent. A person not just interested but who stand to benefit from the content of the document. Therefore it was wrong to admit the exhibit in evidence. It therefore follows as it is the law that, inadmissible evidence ought not be admitted even by mistake, where it is admitted, as in this case and the trial Court failed to expunge the said exhibit, this Court ought to expunge same, or better still consider the case on the basis of legally admissible evidence only. See ABUBAKAR VS. CHUKS (2007) MJSC 190 AT 217 OWONIYI VS.

OMOTOSHO (1961) ALL NLR 304.

The Appellant objected to the admissibility of “EXHIBIT ANT 1”, even if the Appellant did not object to the admissibility, it is trite law that the admissibility of documents without objection does not foreclose the power of the Court to expunge it from its records. It is for this reason that the Supreme Court held in I.B.W.A. VS. IMANO LTD, (2001) 3 SCNJ 160 AT 177 thus; “It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence.

Accordingly, where a trial Court inadvertently admits evidence which is absolutely inadmissibly, it has a duty generally not to act upon it but rather to discountenance it. So too if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence.” More so, special damages are such damages the law will not infer from the nature of the act complained of.

It is dependent upon exalt computation and calculation of figures from special items that need to be proved. Special damages by its nature must be particularized in the statement of claim and supported by evidence before the Court, see GAMBORUMA VS. BORNO (1997) 3 NWLR (PT.495) 530; MOMODU VS. UNIVERSITY OF BENIN (1997) 7 NWLR (PT. 512) 325, and ONYIORAH V ONYIORAH (2019) LPELR-49096(SC) wherein the apex Court Per RHODES-VIVOUR, J.S.C. held thus; “Special damages must be specially pleaded and strictly proved by the claimant.

To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the Court as to how the sum claimed as special damages was quantified.” In this appeal, all the losses claimed on every economic tree and other items must be concrete in terms and value before trial, since the losses do not flow from the ordinary course of trespass.

The Respondent claimed the sum of N26,000,000.00 as compensation for unauthorized acts of trespass and destruction of economic crops on the respondent’s family land without specifically pleading the economic crops and others valuables allegedly destroyed and the value of the said damages caused. The Respondent failed to particularized and strictly plead with credible evidence, his claim for special damages.

I have gone through the length and breadth of the Respondent’s case, and at best the only evidence that the Respondent set out to establish his claim is the surveyor’s report that was smuggled in while the trial was underway. I have found that the said surveyor’s report “Exhibit ANT 1” was wrongly admitted by the trial Judge and any claim drawing life from the said exhibit must be dismissed. ​It is for these reasons and others elaborately set out in the leading judgment that I, also find that the appeal is meritorious and is allowed. The judgment of the trial Court delivered by Hon.

Justice M.A IKPAMBESE dated 6th day of February, 2017 is hereby set aside.

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J. Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020.

The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions. ​The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation.

On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail.

The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:- “Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders – (1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions- (a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.

Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal) Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.

The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows: GROUND ONE The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.

GROUND TWO The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant. GROUND THREE The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.

GROUND FOUR The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015. GROUND FIVE The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V.

Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223. GROUND SIX The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.

GROUND SEVEN The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million. GROUND EIGHT The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.

GROUND NINE The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted. GROUND TEN The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction. GROUND TWELVE The judgment is unreasonable and unwarranted and should be set aside. The Record of Appeal was transmitted to this Court on 03/12/2020. The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised: (1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1) (2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6). (3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4) (4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11). (5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10) (6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12) In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus: Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court.

He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45. Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted.

He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter.

He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc.

He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V.

UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard.

Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure.

He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account.

Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice.

Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41.

Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V.

MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal.

In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder. ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6 At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case.

He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings.

The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020. On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings.

According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020. Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:- “My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court.

That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal) Then the trial Court in its Bench Ruling held thus:- “This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:- “We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.

We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom. It is in the light of the above that we humbly apply for certified true copies of the under listed documents. i. bail bond, ii. recognizance, iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail, iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.” (see pages 194 – 195 of the Record of Appeal) The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:- “A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA.

In fact there is no provision in ACJA that supports the letter. Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:- (9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court.

He shall then be released from custody. Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No.

KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody: Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” ​ Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit.

The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.

The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.

Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.

An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume.

By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:- “The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court.

The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant.

See Section 353 (4) ACJA.” By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume.

And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:- “although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation.

However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.” By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice.

The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel.

However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended).

The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings.

In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence. The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:- “Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders- (1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria.

That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody. (b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court.

The said Section 179(1) ACJA, 2015 provides:- “Where it is proved to the satisfaction of the Court by which a recognizance has been taken or, when the recognizance bond is for appearance before a Court and it is proved to the satisfaction of the Court that a recognizance has been forfeited, the Court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.” Section 179 (1) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed.

And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.” If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional. Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums.

It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:- Paragraph (7) provides:- “That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant Paragraph (8)- The property used in the fulfillment of the Bail term belongs to me personally Paragraph (9)- That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default” Paragraph (10)- That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria. I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause.

The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223.

This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever.

In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed. The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto. No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA. ​ My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court.

That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae. It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein. ​ I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.

Judgment

BATURE ISAH GAFAI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 13th of September, 2019 in Suit No. FCT/HC/CV/1854/2019 in which an order for recovery of the sum of N285,053,354 from the Appellants was entered by the Court in favour of the Respondent.

As gleaned from the Record of Appeal, the Respondent had approached the lower Court by a suit under the Undefended List disclosing altogether but stated in brief here that sometime in December 2016 he placed the sum of N200,600,000.00 (Two Hundred Million, Six Hundred Thousand Naira) in a fixed deposit account with the 1st Appellant a microfinance bank for a period of 180 days at an agreed interest rate of 20% which however the 1st Appellant reneged entirely by refusing to pay the Respondent both the deposit and interest sum from the maturity date, despite several failed assurances by the 1st Appellant till date.

The Appellants responded to the suit by causing to be filed a Notice of Conditional Appearance, a Notice of Preliminary Objection and a Notice of Intention to Defend the suit.

In its judgment, the lower Court considered the arguments of the parties on the Appellants’ Preliminary Objection which was premised on the ground that the 2nd to 8th Appellants being Directors of the 1st Appellant cannot in law be personally liable for the 1st Appellant’s contract with the Respondent which therefore renders the suit as one with no cognizable cause of action against them, the effect of which is that the lower Court lacked jurisdiction to entertain the suit against them. The lower Court found no merit in the Preliminary Objection and thus discountenanced same.

Proceeding into main suit, it further found the Appellants’ facts in the affidavit in support of their Notice of Intention to Defend the suit as, in its words, “…incoherent, evasive, scandalous and thoroughly unconscionable…”.

In consequence, the lower Court discountenanced the Appellants’ Notice of Intention to Defend the suit, considered the Respondent’s suit on its merit and entered judgment in part only against the Appellants in the sum of N285,053,345.00 (Two Hundred and Eighty-Five Million, Fifty-Three Thousand, Three Hundred and Forty-Five Naira) and a consequential order on the Respondent to prepare to prove his claim for interest for the period covering February 2018 to April 30, 2019 which the Respondent claimed to have accrued in the sum of N66,572,447.00 (Sixty Six Million, Five Hundred and Seventy-Two Thousand, Four Hundred and Forty-Seven Naira).

Dissatisfied with the judgment, the Appellants lodged this Appeal vide a Notice of Appeal filed on the 25th of October, 2019 which was however by leave of this Court granted on the 20th of October, 2021 amended by substituting the name of the Respondent Mr. Idongesit Okon Nkanga (who passed away in the course of this appeal) with the name of the deceased’s wife “MRS MOSUNSOLA OLUWAFUNMILOLA IDONGESIT OKON NKANGA” as the Respondent.

The Amended Notice of Appeal was filed on the 8th of November, 2021 in which the Appellant complained against the Judgment on four grounds as follows: “GROUND 1 The Learned trial Judge erred in law when he lifted the Veil of Incorporation of the 1st Respondent on the grounds that its Directors had been fraudulent, and thereby occasioned a grave miscarriage of justice.

GROUND 2 The learned trial Judge erred in law when he dismissed the Preliminary Objection dated 11th June, 2019 brought by the Appellants as Defendants/Applicants which objection was premised on the ground that the 2nd – 8th Appellants were not necessary parties to the action, which occasioned a grave miscarriage of justice. GROUND 3 The learned trial Judge erred in law when it entered judgment for the Respondent in the sum of N285,053,345.00 against the Appellants jointly and severally.

GROUND 4 The judgment entered by the trial Court was given against the weight of evidence.” The respective particulars enumerated under these grounds are noted. See pages 79 – 83 of the Additional Record of Appeal. It is from these grounds that the Appellants’ learned counsel Ikem G. Ogugua Esq. formulated two issues for determination as shown in their Brief of Argument filed on the 14th of January 2022 on: “a. Whether there was allegation of fraud submitted before the trial Court by the Respondent. [Distilled from Ground 1 of the Notice and Grounds of Appeal] b.

Whether the 2nd – 8th Appellants who are agents of the 1st Appellant are necessary party to the suit and Jointly liable to the Respondent. [Distilled from Grounds 2 and 3 of the Grounds and Notice of Appeal]” For the Respondent, her learned counsel Isaac Okpanachi Esq., did not find a need to formulate any other in the Respondent’s brief and thus adopted and argued on the Appellants’ issues too in line with the Respondent’s case.

Traversing the Appellants’ arguments under their first issue as canvassed at pages 3 to 11 of their brief, it is, to say the least, surprising that their learned counsel did not deem it necessary or even desirable to refer to any particular page or portion of the lower Court’s judgment containing specific finding or decision which the Appellants seek to challenge. It is even more disturbing as the Judgment is fairly lengthy containing many related findings and holdings on or in relation to the Appellants’ first issue for determination (supra).

It is thus difficult to discern precisely or differentiate which among those findings or holdings the Appellants are challenging. Neither the Grounds of Appeal nor their particulars have been helpful too. In appellate practice, it is trite that issues for determination must be clearly related to and be founded on the specific findings or ratio decidendi in the judgment on appeal. In other words, the issues for determination must be distilled from the Grounds of Appeal which in turn must also be predicated upon the ratio(s) decidendi of the particular decision complained against.

See Archinga vs. Attorney General of Akwa Ibom State (2015) 6 NWLR (Pt. 1454) 1, Shipcare Nig. Ltd Owners of the M/T African Hyathinth vs. The Owner or the M/V Fortuno (2011) 7 NWLR (Pt. 1246) 205, Shettima & Anor vs. Goni & Ors (2011) LPELR – 417 (SC); Musaconi Ltd vs. Aspinall (2013) LPELR – 20745 (SC); Nze vs. Aribe (2016) LPELR – 40617 (CA). Ordinarily, the observed apparent defect in the Appellants’ first issue would have ended it all at that point.

However, in order to attain substantial justice on the Appellants’ complaints in the appeal, I have strived to identify from the judgment some particular portions(s) which seem to fit into the Appellants’ arguments without jeopardizing the Respondent’s position who in any case also adopted the Appellants’ blunder as well because their learned counsel too never referred to or mentioned any specific finding or holding of the lower Court that the Respondent is seeking to support by the arguments under the issue.

It should not be forgotten that the Appellants’ first issue essentially challenges the lower Court’s finding(s) that as Directors of the 1st Appellant, the 2nd to 8th Appellants had been fraudulent in the dealings between the 1st Appellant and the Respondent which the Court found as sufficient reason to lift the 1st Appellant’s veil of incorporation and held them liable in that capacity.

It is argued for the Appellants that neither was the allegation of fraud submitted to the lower Court to warrant its findings on the fraudulent dealings it ascribed to the 2nd to 8th Appellants nor could they in any case be validly held liable for the acts of the 1st Appellant particularly in its contract with the Respondent. That is the substrum of the Appellants’ arguments under this issue. I note yet another line of disjointed argument under this issue in relation to the joinder of the 2nd to 8th Appellants as proper parties in the trial.

Let me say straight away that this argument is one that is neither hinted in the Appellants’ first Ground of Appeal (supra) from which the Issue is distilled nor deducible from the Particulars clumsily listed thereunder as numbers “(d), (b), (c), (d)”. Having not been rooted in or linked to the Ground(s), it is said to have been distilled from, that line of argument is discountenanced.

The same fate also befalls the other line of argument under the same Issue by which the Appellants introduced and canvassed arguments questioning the lower Court’s decision on their Notice of Preliminary Objection being one that is completely unconnected to their said first Ground of Appeal. See Thompson vs. Akingbehin (2021) 16 NWLR (Pt. 1803), 285 at 312 to 313 paras H – E.

What I can only add from the Appellants’ arguments on this issue, even if for emphasis only, is the Appellants’ insistence that the lower Court wrongly found the 2nd to 8th Appellants fraudulent in the circumstances and without affording them an opportunity to be heard on it. Reliance is placed on the decisions of this Court in FDB Financial Services Ltd vs. Adesola (2000) 8 NWLR (Pt. 668), 170, Alarapon & Ors vs. PRP & Ors (2019) LPELR – 47052 (CA) among others in support of the argument under this issue.

For the Respondent, it is argued that by virtue of Sections 308, 309 and 316 of the Companies and Allied/Matters Act 2020, if a company, the 1st Appellant in this case, with intent to defraud fails to apply the money or other property for the purpose it was received, every director of the company who is in default is personally liable, without diminishing the liability of the company itself; placing reliance on the decisions by this Court in Public Securities Ltd vs. JEFIA (supra), Eboni Finance & Securities Ltd vs. Wole-Ojo Tech.

Services Ltd (1996) 7 NWLR (Pt. 46£), 464 at 478 para A – D and the Apex Court’s decision in Trenco Nig Ltd vs. ACB & Anor (1978) NSCC 220 at 250. Learned counsel submitted that it is unjust for a party such as the Appellants to rely on the doctrine of corporate liability in the facts and circumstances as in the Respondent’s case.

It is further argued that the Appellants who in their own affidavit presented contradictory, dishonest facts cannot now turn around to claim denial of hearing, more particularly as the fraud by the Appellants is so manifest for example by inter alia issuing postdated checques on two different occasions to the Respondent knowing that they had no money in their bank account which in itself is easily an offence under the provisions of Section 1 of the Dishonoured Cheques Offences Act 1977 and Section 311 of the Penal Code. ​ As can be seen, the entire arguments for the parties on this Issue revolve around the real or imagined protection or liability of the 2nd to 8th Appellants for the acts of the 1st Appellant, the former being the latter’s Directors.

Undeniably, the 1st Appellant is a corporate entity, a juristic person in law, different from its members, subscribers or shareholders. For good reasons, the law has conferred upon it enormous immunity and privilege owing to its basic gullible feature of living a life without a mind or brain, without hands or legs, without a body or physical form.

It is by the undaunting force of the law at the bottom of its creation, and protected through its growth or promotion to a functional juristic personality that it exists differently from, though not in isolation of its human components which reside mainly in its directors. That is the postulate in the doctrine of corporate personality which appears to have originated and gained persistent legitimacy for one hundred and twenty-five years now from the English decision in Salomon vs Salomon (1897) 2 AC 22. It applies in Nigeria as well. See Section 42 of the Companies and Allied Matters Act 2020.

In Adamu Muhammad Gbedu & Ors vs. Joseph I. Itie (Liquidator) (2020) 3 NWLR (Pt. 1710), 104 at 124 para C – D, the Supreme Court held that: “Company law derives from Common Law and that includes the Companies and Allied Matters Act, CAMA, applicable in Nigeria.” Its application in Nigeria has been consistently upheld by both the Apex Court and this Court. See Marina Nominees Ltd vs. FBIR (1986) LPELR – 1839 (SC), Ramanchandani vs. Ekpenyong Trenco (Nig) Ltd vs. African Real Estate & Investment Co. Ltd & Anor (1978) LPELR 33264 (SC), United Cement Co.

Ltd vs Libend Group Ltd & Anor (S016) LPELR – 42038 (SC).

As in every rule however, there are recognized exceptions, premised on the legal reality that a company though an artificial person in the eyes of the law is however composed of and piloted by its human component, i.e. its Directors and Managers who act as the directing mind of the company by their action and inaction for the company. When there occurs infractions against the company, it is the Directors who rise to the occasion in its defence, in the same way that they bear the responsibility and liability in defence of the excesses or infractions by the company.

Such is the inextricable, generally harmonious relationship between a company and its Directors. By the very nature of this relationship, there developed necessary legal mechanisms as recognized exceptions to the doctrine of the separate legal personality of a company particularly in ostensible acts of the company but which in reality are acts of its Directors to lift the veil of the company’s incorporation in order to see those behind the excesses or inactions of the company that are put to question. The exceptions are enshrined in law and in equity and applied in our Courts.

As referred by the learned counsel for the Respondent, Section 316 of CAMA 2020 provides that: “Where a company – (a) receives money by way of loan for specific purpose; (b) receives money or other property by way of advance payment for the execution of a contract or project; or (c) with intent to defraud, fails to apply the money or other property for the purpose for which it was received, every director or other officer of the company who is in default is personally liable to the party from whom the money or property was received for a refund of the money or property so received and not applied for the purpose for which it was received and nothing in this section affects the liability of the company itself.” The Appellants’ complaint here is that the lower Court was wrong when it lifted the 1st Appellant’s veil of incorporation on the ground that its Directors i.e. the 2nd to 8th Appellants had been fraudulent. ​ To begin with, as clearly enshrined in these provisions, fraud is certainly a ground on which the 1st Appellant’s veil may be lawfully lifted in order to hold its Directors personally liable to the party from whom the money was received.

In my humble view, it is not only good law but good sense to treat a company and its Directors in line with the provisions of Section 316 of CAMA (supra) firstly because they are the actors in the company’s dealings and secondly to protect the company from the excesses of its unscrupulous, fraudulent Directors. It is in this premise that the lower Court lifted the veil of the 1st Appellant’s incorporation in accordance with the provisions of Section 316 of CAMA 2020.

More importantly, I have been unable to find any misapplication of the law and the facts considered by the lower Court in arriving at the finding that the 2nd to 8th Appellants were indeed fraudulent in their dealing with the Respondent from day one. This view can be better appreciated through the findings in the Judgment of the lower Court as follows: “The Claimant’s case is that up till the time of presenting the 1st Defendant was yet to pay him a dime despite the above assurances.

However, in a curious and evasive twist the Defendants at paragraph 10 of the affidavit in support of notice of intention to defendant stated as follows: ’’That paragraph 3 (o) of the affidavit in support of the Writ of summons is admitted only to the extent that the sum of N285, 053, 345.00 (Two Hundred and Eighty-Five Million, Fifty-Three Thousand and Forty-Five Naira) only together with the accrued interest since 15th March, 2018 till date only being claimed as the 1st defendant’s indebtedness to the claim is arbitrary and does not represent the actual state of the 1st Defendant’s indebtedness as same cannot be claimed under the agreement between the parties same being outside the tenor of the agreement.” This line of defence is to my mind incoherent, evasive, scandalous and thoroughly unconscionable especially when the 1st Defendant had earlier written to admit liability in the sum of N285,053,345.00 (Two Hundred and Eighty-Five Million, Fifty-Three Thousand, Three Hundred and Forty-Five Naira).

I need to remind the Defendants that it was not the Claimant that carne up with the figure. It was indeed the 1st Defendant that put the figure forward as the total sum due to the Claimant as at 28th February, 2018. It is therefore unacceptable for the said Defendants to now attempt to discredit what it authored in the first place. No Court or Tribunal will welcome such line of defence. What I am saying in essence is that the Defendant, cannot approbate and reprobate at the same time. They are bound by Exhibits ON5 which is their i.e. the Defendants’ own document.

It is worthy of note that cheques were presented to the Claimant at different times but he got no value for any of them. Interestingly the Defendants did not put anything forward by way of their bank statements to show that funds moved from any of their accounts to the Claimant. From the correspondence with the Claimant the Defendants’ line of defence is that they have invested the Claimant’s fund and waiting to be paid by the Federal Government of Nigeria. Paragraph 12 of their affidavit speaks to this point.

It is hereby reproduced: “That further to the above paragraph 12 (sic), the 1st Defendant maintains that she in her discretion invested several sums of money in a business venture which yielded so much profit but which stun owed the 1st Defendant by the Federal Government of Nigeria has remained unpaid up till this day which fact was duly disclosed to the Claimant’s counsel and which has necessitated the institution of SUIT NO FCT/HC/ZOO1/ZO19 BETWEEN: KOLAWOLE OLOWOOKERE VS ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE B ANOR by the 1st Defendant’s counsel.

A certified true copy of the said writ of summons and other processes duly filed are hereby attached and marked Exhibit NCMF X.” It is however curious that the Defendants who chimed that the Federal Government of Nigeria is indebted to them exhibited a very strange document christened as Exhibit NCMF 1 to prove that point. I have carefully perused the exhibit and it is clear to me that it has nothing to do with the relationship between the Claimant and the Defendants. In fact, the Exhibit is 3 suit for recovery of professional fee instituted by Mr.

Kayode Olowookere Esq or counsel for the Defendants. What that means is that the Defendants are simply playing pranks with the Court as it has no defence to this action.

Whichever way Exhibit NCMF 1 is viewed it is not relevant to the proceedings and cannot Be used by the Defendants to justify their failure to repay the Claimant’s investment with the accrued interest.” See pages 74 to 76 of the Additional Record. ​ Furthermore, it seems to me that the vehement insistence of the 2nd to 8th Appellants on pushing the entire liability on the 1st Appellant is clearly because the 1st Appellant, as contended by the Respondent’s counsel, has since become moribund; a contention the Appellants have found impossible to deny.

With respects to the Appellants’ learned counsel, that line of defence only reinforces the lower Court’s finding that the Appellants have been fraudulent because its ultimate effect is to evade the repayment of the debt permanently as the 1st Appellant on whom they seek to push the debt liability is to their full knowledge no longer functional; in effect crushing the Respondent to Ground Zero under the cover of Salomon vs. Salomon (supra), as it were, contrary to the provisions of Section 316 of CAMA (supra) and the demands of equity.

The findings and decision of the lower Court in lifting the veil of the 1st Appellant in the circumstances are unassailable. With respects, I wish the learned counsel for the Appellants has had time to read the decisions in the three cases referred by his learned friend for the Respondent; namely Public Finance Securities Ltd vs. JEFIA (supra), Eboni Finance GT Securities Ltd vs. Wole-Ojo Tech. Service Ltd (supra) and Trenco Nig. Ltd vs.

ACE (supra) as that would have saved him the stress of attempting to distinguish them from this appeal as he sought to do in the Appellants’ Reply Brief because they are in all fours with the cases of the parties herein.

To drive this point home, I will reproduce the portion referred by the Respondent’s counsel from the JEFIA case (supra) here thus: “It is patently clear that Section 290 of the Companies and Allied Matters Act 1990 is wide enough to cover the situation herein whereas borne by the record, the 2nd appellant, as the Chairman and Managing Director of the 1st appellant Company had recklessly refused to attend Court to explain or defend the failed investment of the respondent, but instead fabricated a sham defence “that the 1st defendant in common with other Ranks and Investment Companies, suffered a decline in Business fortunes due to political crises and orchestrated blackmail by some fraudulent staffers.

The learned trial Judge, at page 39 lines 2 to 11 of the record said:- “The money invested by the plaintiff represents a loan to the 1st defendant for the sole purpose of yielding interest. The Company is not willing to pay and says that it is in some distress and has resorted to all sorts of subterfuge in order to avoid payment of the sum appearing on the Bond Certificates. I have already shown that this is only but a sham and fraudulent defence that is put forward. The question is what did they do with the money?

It is fraud in my view to establish a Financial Institution that collects money from the general public by way of investments and turn around to disappoint their legitimate expectation under the guise of having a general decline in business.” The above quoted passage from the judgment of the trial Court cannot be faulted as it is supported by both the affidavit and oral evidence contained in the record of proceedings, I agree with him.

I also agree with him that this is a proper case to invoke the provisions of Section 290 of the Companies and Allied Matters Decree 1990 to protect the respondent and hold the 1990 appellant liable jointly and severally with the 1st appellant for debt owed the respondent.” I had earlier hinted that the Appellants are in equity also bound to repay the 1st Appellant’s debt.

This is what preoccupied the mind of this Court also in the Eboni case (supra) referred by the Respondent’s learned counsel, where this Court reasoned and held thus: “Another point in this case is this: as the 1st and 2nd respondents have received the money, might equity not come to the rescue for unjust enrichment.

I think the principle of unjust enrichment which unfortunately is not well developed in English law as both in U.S., and Scotland should, of necessity be nurtured to growth in a new and complex society like ours where people can easily at a whiff of breath resort to law to ward off debt or other enrichments they have had, at the expense of the other. This is a specie of constructive trust which is an instrument which the Court of equity may employ to prevent undue enrichment.

I believe that when a person is holding tight that which is subject of equity he should not be allowed to hold it firmly. Therefore, where a party unjustly enriches himself at the expense of the plaintiff he must be made to disgorge it. Our legal system should at this instance lean more to U.S. law on this principle than in England where the principle is yet to assume a wider dimension. Thus Lord Porter in Reading v. A.G. (1951) A.C 5014 said My Lords – the exact status of the law of unjust enrichment is not yet assured.

It holds a predominant place in the law of Scotland and I think of the United States”. The premise behind the doctrine of restituting an unjust enrichment is that justice be done. That being the case, it seems to me that we ought to lean overly to U.S. legal practice to effectuate justice. Therefore, in consonance with the principles enshrined in the restitution a remedy shall be available whenever the defendant is unjustly enriched at the expense of the plaintiff.

In this case, the respondents must be made to vomit out what they have taken (unjustly).” In addition, the Apex Court’s decision in the Trenco case (supra) referred also by the Respondent’s counsel is no less relevant and binding on this Court as it is similarly in all fours with the present Appeal; more particularly on the line of failed exculpatory argument of the 2nd to 8th Appellants that the lower Court wrongly held them liable for the 1st Appellant’s debt. In my humble view, this Issue can only be and is resolved against the Appellants.

In their second issue, the Appellants have argued strenuously that the lower Court was wrong to have maintained the suit with the 2nd to 8th Appellants as parties although they were agents of a disclosed principal namely the 1st Appellant. It is argued further that the Respondent did not make any case against the 2nd to 8th Appellants to warrant their joinder as parties in the suit. Learned counsel referred to the decision of this Court in Global Soap & Detergent Industries Ltd & Ors vs.

Bello & Anor (2011) LPELR – 9029 (CA) and Ramon vs Adeleke & Ors (2019) LPELR – 50175 (CA) where this Court held that where an agent acted on behalf of a disclosed principal, he cannot be personally liable, unless it can be proved otherwise. Those are the main arguments under the Issue.

For the Respondent however, it is argued that although it is the correct position of the law that an agent of a disclosed principal cannot generally be sued or held personally liable, there have been long settled exceptions to that rule which include situations where statutory provisions make such agent liable e.g. under Sections 308, 309 and 316 of CAMA and Section 1 of the Dishonoured Cheques Act and secondly where the Court from the circumstances of a case makes the agent liable though the principal is named.

Learned counsel referred to the decisions of the Supreme Court in National Film Video Censor Board & Or Vs. Adegboyega & 2 Ors (2019) 4 NWLR (Pt. £662), 285 at 507 and COTECNA International Ltd vs. Church Gate Nig. Ltd (2010) 18 NWLR (Pt. 1225), 546 where the Supreme Court upheld the joinder of an employee and of an agent respectively although of named principals; to buttress his submission on recognized exceptions to the rule that an agent of a disclosed principal can neither be sued nor held liable.

Learned counsel further argued that the 2nd to 8th Appellants are necessary parties without who the suit cannot be judiciously decided placing reliance on the Supreme Court’s decisions in Azubuike vs PDP (2014) 7 NWLR (Pt. 1406), 292 a 313 and Mbanefo vs. Molokwu (2014) 6 NWLR (Pt. 1406) 377 at 410 – 411.

In his Reply Brief, the Appellants’ counsel sought to distinguish the Supreme Court’s decision in the Censors Board case (supra) for the reason that the party joined in that appeal was wrongfully collecting money from people whereas the Appellants in this Appeal were merely acting within the instructions of the 1st Appellant. Needless to say but for emphasis, this reasoning is unacceptable in view of the earlier resolution of that argument in the contrary under the first Issue.

Strangely, the learned counsel avoided any argument or – even comment on the Respondent’s reliance on the provisions of Section 316 of CAMA which the Respondent argued made the Appellant’s parties on the facts in the suit. Firstly, the Appellants are parties in the suit by operation of law under Section 316 of CAMA (supra). Secondly, the two previous decisions of this Court referred by the learned counsel for the Appellants were not based on the provisions of Section 316 of CAMA. Thirdly, the Appellants are on the facts necessary parties without who the entire suit would be meaningless.

As laid down in several decisions by this Court and the Apex Court, from which I referred to the Apex Court’s decision in Azubuike vs.

PDP (supra) the questions to be answered before arriving at whether a party is a necessary party in a suit are: (a) Is the cause or matter liable to be defeated by the non-joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? (c) Is the 3rd party a person who should have been joined in the first instance? (d) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?

From the facts detailed in the Respondent’s affidavit and its annexures in support of the Originating Summons found at pages 3 to 18 of the Additional Record which the Appellants’ evasive facts in their Notice of Intention to defend the suit found at pages 32 to 35 failed to controvert effectively, more particularly on their roles as directors of the 1st Appellant, the lower Court was right in refusing to strike out their names from the Suit as they sought by their Notice of Preliminary Objection, because all the above questions are, upon the credible evidence before the lower Court, easily answerable in the affirmative against the Appellants.

See also Biyu vs. Ibrahim (2006) 8 NWLR (Pt. 981), 1 at 35, Adefarasin vs. Dayekh ​(2007) 11 NWLR (Pt. 1044), 89 at 116 – 117, Jadesimi vs. Okotie-Eboh (1989) 4 NWLR (Pt. 113), 113 at 126. This issue is also resolved against the Appellants. In consequence, the Appellants’ two issues for determination as adopted and argued also by the Respondent, having been resolved against the Appellants, the appeal ends as one lacking in any merit and is accordingly dismissed. The judgment of the lower Court is affirmed. I award cost of Two Hundred Thousand Naira against the 2nd to 8th Appellants jointly.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Isa Bature Gafai, JCA. I am in agreement with the reasoning and conclusion which I adopt as mine. I therefore, agree that the appeal lacks merit and I hereby dismiss it. I abide by the consequential orders inclusive of the order as to costs as made in the lead judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I was privileged to read in advance a draft copy of the leading judgment just delivered by my noble lord, Isah Bature Gafai, JCA, and I am in complete agreement with the impeccable reasoning as marshalled out therein as well as the inescapable conclusion reached to the effect that the appeal lacks merit and is liable to be dismissed.

My Lords, proceedings under the undefended list procedure, as was commenced by the Respondent against the Appellants in the instant appeal before the lower Court to recover the total sum of N285, 053, 345. 00 by reason of the refusal of the 1st Appellant, of which the 2nd – 8th Appellants are the Directors, to pay over to the Respondent the sum of N200, 600, 000. 00 placed in a fixed deposit with the 1st Appellant for a period of 180 days at an agreed interest rate of 20%, is a strict one geared towards the expeditious dispensation of justice, devoid of unnecessary delays and undue technicalities, in cases where the Defendant really has no defence to the claim of the Claimant.

In Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor (2022) LPELR – 57506(CA), this Court per Sir Biobele Abraham Georgewill JCA had stated inter alia thus: “Under the Undefended List Procedure, going by the several judicial authorities on the essence of this procedure geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defense to the claim of the Claimant against him and for judgment to be entered if there be nothing worth being further investigated by the Court on the affidavit evidence of the parties.

It is to be noted here, and very pertinently too, that once the Claimant’s Suit is filed and or placed under the Undefended Cause List, the very straightforward, and if I dare say very simple uncomplicated procedure on the date fixed for hearing of the Suit filed or placed under the Undefended List, is that the Court would after hearing the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defense on the merit.

In arriving at such a finding, the Court would critically securitize and examine the affidavits and documentary Exhibits, if any, of the parties to determine at that stage if the Defendant has disclosed any defense on the merit or raised at least triable issue that would need to be further investigated into by the Court by way of a full hearing. However, where the Court finds that the Defendant has not disclose any defense on the merit or raised any triable issue, it is under a duty to proceed to enter judgment in favor of the Claimant against the Defendant, no more no less.

But, where the affidavit of the Defendant in support of the Notice of Intention to Defend discloses either a defense on the merit or triable issues or if there are substantial conflicts as to the facts of the case on the affidavits of the parties, it would be sufficient for the Court to hold that the Defendant has raised a triable issue as would require further enquiry and thus a transfer of the matter to the General Cause List should be the appropriate.

The Claimant’s claim would then be heard at plenary trial in which the contending rights of the parties would be enquired into and settled on the merit on the evidence as would be put forward by them at the trial.” See also United Bank for Africa Plc V. E. I. Natama International Complex Ltd (2020) LPELR-51981(CA) per Sir Biobele Abraham Georgewill. JCA.

In the leading judgment, the numerous legal questions raised by the parties under the cover of just two, seemingly simple but apparently, overloaded, issues have been considered admirably and resolved against the Appellants in favour of the Respondent. I shall only, by way of my humble contribution, say a word or two on some of these very crucial issues as canvassed by the parties in their respective appellate briefs in this appeal.

I have no doubts in my mind based on the affidavit evidence of the parties as in the Record of Appeal that the 2nd – 8th Appellants, who are Directors of the 1st Appellant, are the directing minds and alter ego of the 1st Appellant. In law, they therefore, come within the context of agents of the 1st Appellant.

This is so because agency can be created in about four to five ways, namely: (1) By express appointment, whether orally or by letter of appointment or, indeed by Power of Attorney; (2) By Ratification of the Agent’s acts by the Principal; (3) By virtue of the Doctrine of Estoppel; (4) By implication of law in the case of agency of necessity, and (5) By presumption of law in the ease of cohabitation. See Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Gcorgewill JCA. See also Vulcan Gases Ltd. V. GF.IND.

AG. (2001) 9 NWLR (Pt. 719) 610 AT Pp. 637 – 638, per Iguh JSC. Indeed, agency relation can in law even be implied as is referred to as the implied authority or apparent or ostensible authority of an agent acting within the scope of the authority vested on him by the principal. In law, implied authority is also referred to as apparent or ostensible authority. It is the authority of an agent as it appears to other.

Under the doctrine of apparent authority, the principal may be bound to third parties because the agent appeared to have authority, though as between principal and agent there was in fact no such authority granted and normal circumstances of such authority did not arise. See Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Georgewill JCA. See also UBN (Nig) Plc V. Otagbe Farms Ltd (2002) 14 NWLR (Pt. 787) 242 AT pp. 249 – 250, per Akaahs JCA, (as he then was but later JSC).

Thus, in law, a principal cannot generally be liable for the fraud of his agent unless it is proved that the agents, as in the instant appeal, the 2nd – 8th Appellants, had a guilty mind in respect of the fraudulent acts of the 1st Appellant in its dealings and relationship with the Respondent, had indeed participated in it. See Sections 308, 309 and 316 of the Company and Allied Matters Act 2020. See also Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Gcorgewill JCA, Nirchandani V.

Pinherio (2001) FWLR (Pt. 48) 1323, Fitton V. IGP (1958) 3 FSC 20.

The question then simply is this: Did the Respondent, by the copious affidavit evidence, which were left generally unchallenged and therefore, uncontroverted, show that the 2nd – 8th Appellants as Directors, and therefore, the directing mind and alter ego of the 1st Appellant, acted in the relationship between the Respondent and the 1st Appellant, being the agents of the 1st Appellant, within or outside the scope of their authorities for which either the 1st Appellant alone, being a corporate legal entity, should bear responsibility to the Respondent or for which the corporation veil can be lifted and the 2nd – 8th Respondents also held accountable and liable for the acts of the 1st Appellant carried out under their supervision and direction as the directing minds of the 1st Appellant?

My Lord, it must be pointed out at once that in law the mere fact a person, such as the 2nd – 8th Appellants, is an Agent of a Principal, such as the 1st Appellant, and known to be so does not of itself necessarily prevent his incurring personal liability, and whether he does so or not is to be determined by the nature and terms of the contract and the surrounding circumstances. See Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Georgewill JCA. See also FCDA V. Ezinkwo (2007) All FWLR (Pt. 393) 115, Asafa Foods Factory V.

Alaine Nig Ltd (2002) FWLR (Pt. 125) 756. Now, I had earlier posed the question, whether the facts of this ease as in the Record of Appeal would or could justify and or warrant the lifting of the corporate veil of the 1st Appellant as was apparently done by the lower Court? I certainly think it does!

The lower Court was, in my finding, perfectly in order to have lifted the corporate veil of the 1st Appellant, to see the 2nd – 8th Appellants, as the main actors and directing minds of the activities, acts and actions of the 1st Appellant, in its relationship with the Respondent in the proved facts and circumstances of this case. My Lords, it is true that a limited liability Company, such as the 1st Appellant, company upon its incorporation acquires a legal personality of its own that makes it distinct from its Shareholders ad or Directors.

Yet, in law there are some exceptional but very limited circumstances in which a Court may lift the veil of incorporation so as hold the Shareholders and or Directors personally liable for the debts and or liabilities of the company. This would include eases of grave and proved allegations of fraud, as in the instant appeal or illegality or sham that would in fairness and in justice warrant the lifting of the veil of the corporate entity of a company duly incorporated in law. See Willbros West Africa, Inc. & Ors V.

Mcdonnel Contract Mining Limited (2021) LPELR – 54544 (CA) per Sir Biobele Abraham Georgewill JCA. See also Prof Ajibayo Akinkugbe V. Ewulum Holdings Nigeria Ltd & Anor (2008)12 NWLR (Pt. 375) 1, Okoli V. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (PT. 1053) 37 AT p. 57, Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 AT pp. 293 – 294, Alhaji Mohammed Abacha V. AG. Federation (2013) LPELR – 21749. It is for the above few words of mine, by way of contribution to the fuller reasoning marshalled out in the leading judgment, that I too dismiss this appeal for lacking in merit.

I shall abide by the consequential orders made in the leading judgment, including the order as to cost.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. FCT/HC/CV/1609/2018: Chukwudi Ngeme.V. Inspector General Of Police & 5 Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed. The Appellant was dissatisfied with the said decision and has appealed against it vide his Notice of Appeal filed on 6/5/2019 on two Grounds of appeal. See pages 98 -101 of the Record of Appeal.

The Record of Appeal was compiled and transmitted to this Court on 6/3/2020 and properly deemed on 6/7/2021. With the leave of this Court, an Amended Notice of Appeal was filed on 9/3/2020 on three Grounds of appeal but was deemed as properly filed on 6/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 28/9/2022. The Appellant was represented by M. K. Bielonwu Esq. appearing with U. L. Agada Esq. The 1st – 4th Respondents were represented by Chinyere Moneme Esq.

The 5th Respondent, though he filed his brief, was not represented by counsel at the hearing of the appeal. The Appellant commenced Suit No: FCT/HC/CV/1609/2018 against the Respondents as Respondents before the High Court of the Federal Capital Territory, Abuja seeking the following Reliefs: 1. The prior, present and planned arrest and further detention, summons and harassment of the applicant by the Respondents and their agents on an alleged indebtedness of the Applicant to one Mr. Emeke Ugwu of Kubwa Abuja is unlawful, unconstitutional null and void ab initio. 2.

The respondents by themselves agents or servants be restrained from further threatening and/or infringing on the fundamental rights of the applicant by threatening him with further arrest except in compliance with Section 35(1), 36 (8 and 12,) 37 and 44  of the Constitution of the Federal Republic of Nigeria 1999, as amended. 3.

That unless the leave of this Honourable Court or any other Court of competent jurisdiction is first sought and obtained the 1st, 2nd, 3rd and 4th Respondents either personally or via any of its agents or officers be restrained from further arresting, detaining and harassing the applicant. 4. That the Respondent pay the sum of N10,000,000.00 (Ten Million Naira) only to the Applicant as compensation for the infringement on his fundamental rights.

SUCCINCT STATEMENT OF FACTS The case of the Appellant as Applicant before the lower Court inter alia was that the 1st, 2nd, 3rd, and 4th Respondents violated his fundamental human rights, especially his arrest, detention and threat of further arrest at the behest of the 5th Respondent in a manner contrary to the provision of Sections 35(1), 36 (8 and 12), 37 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999.

He sought an Order of the lower Court to restrain them and to pay him compensation in the sum of N10,000,000.00. (Ten Million Naira) only as provided under Section 35 (6) of the Constitution. See pages 1 – 5,17 – 18, 37 – 40, 41 – 45 and 70 – 77 of the Record of Appeal. ​The case of the 1st – 4th Respondents before the lower Court inter alia was that the 5th Respondent made a report to the Police against the Appellant that he introduced the 5th Respondent to one Eric Metins who resides in Port Harcourt Nigeria and deals with the sale of Oil & Gas and Allied products.

On the instruction of the Appellant, the 5th Respondent paid the total sum of N6,400,000.00 to Eric Metins on the agreement that he would supply 36,000 litres of gasoline product to the 5th Respondent, and for which the Appellant travelled to Port Harcourt to oversee the conveyance of the product to Abuja. However, the Appellant later returned to Abuja without the product or the money but gave an excuse that the sum of N1,550,000.00 given to him by Eric Mctius had been collected from him when the vehicle he boarded to Abuja was robbed.

On realizing that he had been defrauded by the Appellant and Eric Metins, the 5th Respondent reported the matter to the Police, which invited the Appellant for investigation. The Appellant reported at about 6. 00pm on 6/3/2018, and the Police investigation revealed a prima facie case of fraud and breach of trust.

However, it was only on 7/3/2018 at about 7. 00am that the Appellant’s wife came to bail him and he was released on bail when the bail bond was signed on 8/3/2018, and the Appellant wrote an undertaking jointly signed by the 5th Respondent and in the presence of a witness agreeing to return the sum of N500,000.00 to the 5th Respondent and to refund the remaining subsequently. It was whilst investigation was still ongoing that on 26/4/2018 the Appellant rushed to Court to institute the action against the Respondents. See pages 51 – 69 of the Record of Appeal.

The case of the 5th Respondent before the lower Court inter alia was that the Appellant and one Emeka who was based in Port Harcourt of River State fraudulently made the 5th Respondent to deposit the sum of N6,400,000.00 into a Bank Account operated by Emeka for the supply of Gasoline product which both Appellant and Emeka do not have. The Appellant later went to Port Harcourt and collected the sum of N1,500,000.00, a part of the N6,400,000.00 fraudulently obtained from the 5th Respondent as his share of the fraud.

The 5th Respondent reported the matter to the Police and the Appellant was subsequently arrested by the Police and a part of the N1,500,000.00 was recovered from the Appellant, who was subsequently granted bail by the Police but before he could be arraigned before the Court, he jumped the administrative bail granted to him by the Police and instituted the action against the Respondents. See pages 19 – 25 and 26 – 29 of the Record of Appeal.

Before the lower Court, the parties filed and exchanged several affidavits, counter affidavits and reply as well as their written addresses and notice of preliminary objection by the 5th Respondent, which were all duly adopted by them at the hearing of the Appellant’s suit. On 30/4/2019, the lower Court delivered its judgment, in which it dismissed the claims of the Appellant against the Respondents, hence the appeal. See pages 85 – 97 and 98 – 101 of the Record of Appeal ISSUES FOR DETERMINATION In the Appellant’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to the contrary, when it concluded in its ruling that the Appellant’s suit was only aimed at stopping the 1st, 2nd, 3rd and 4th Respondents from carrying out their statutory duties provided under the law? (Distilled from Ground 1) 2. Whether one must be arrested before he is investigated to decide whether there is a prima facie case of crime or not? (Distilled from Ground 2) ​In the 1st-4th Respondents’ brief, two issues for determination were also formulated as follows: 1.

Whether the lower Court was right to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st – 4th Respondents from carrying out their Constitutional duties provided under the law? 2. Whether the invitation of the Appellant was necessary during investigation carried out by the 1st – 4th Respondents? In the 5th Respondent’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st, 2nd, 3rd, and 4th Respondents from carrying out their Statutory duties provided under the law? (Distilled from Ground 1) 2.

Whether the arrest of the Appellant was necessary before the investigation to decide if there was prima facia case of crime or not? (Distilled from Ground 2) ​I have taken time to consider the depositions in the affidavit, counter – affidavit and reply affidavit as well as the documentary Exhibits as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court.

I am of the firm view, and since all the two issues apiece as formulated by all the parties are similar, that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the two issues apiece as distilled in the 1st – 4th Respondents and the 5th Respondent’s briefs. However, I shall consider all the two issues together and resolve them in one fell swoop.

ISSUES ONE AND TWO (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law when it held that even though where the right of an individual has been, is being, or is likely to be infringed the Court are enjoined to protect such individual’s right but however, that should not be interpreted to stop the Police from carrying on their statutory duties provided by the law and thereby refused the meritorious claims of the Appellant against the Respondents and contended that the lower Court was wrong because from the evidence before it, the 1st – 4th Respondents were not out to carry out any other duty than lend themselves to the 5th Respondent as his debt recovery agent and urged the Court to hold that the admitted evidence proved that the Appellant was rather unlawfully arrested, detained and only released when he parted with the sum of N500,000.00 as part of the alleged indebtedness to the 5th Respondent with an undertaking to refund the balance of N1,000,000.00 and to allow the appeal, set aside the judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 4 of the Police Act, CAP. P19, LFN 2004.

It was also submitted that in law the onus is on the 1st – 4th Respondents to prove that their act was strictly done in furtherance of their statutory duties under the Nigerian law and contended that the 1st – 4th Respondent failed to discharge this burden of proof placed on them by law and therefore, the arrest and detention of the Appellant was clearly unlawful, illegal and not justified by law and urged the Court to hold that the Appellant was merely arrested and detained at the behest of the 5th Respondent solely for the purposes of recovery of debt and nothing else as there was sufficient time between the 8/3/2018 when the Appellant was released on bail and 22/6/2018 to have arraigned the Appellant if indeed they carried out any investigative duty under the law and discovered that the Appellant had committed any offence known to law, and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to 35 (1), (2), (3) and (4) of the Constitution of Nigeria 1999 (as amended), and relied on Oceanic Securities International Ltd v. Balogun (2013) All FWLR (Pt. 677) 633 AT p. 662; Ejefor V. Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba V. SSS (1994) 6 NWLR (Pt. 351) 475.

On issue two, learned counsel for the Appellant had submitted that the lower Court erred gravely in law when it held that in law, one must be arrested and investigated before the Police should decide whether there is a prima facie case of crime or not and contended that the arrest of the Appellant was neither for the purpose of his investigation nor for the purpose of bringing him before a Court of law to stand his trial or in execution of an Order of the Court but rather for the mere purpose of recovering from him of his indebtedness to the 5th Respondent and urged the Court to hold that it is not the law that one must be arrested before the Police will investigate to decide whether there is a prima facie case of crime or not but rather the correct procedure is for the Police to investigate and then proceed to arrest if the commission of an offence is established and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 35 (1) (c) of the Constitution of Nigeria 1999 (as amended), and relied on Agbebaku V. State (2015) FWLR (Pt. 791) 1423 AT p. 1447; Fawehinmi V. I.G. Police (2002) All NLR 357 (SC) 374; Usman V. The Executive Chairman, EFCC (2018) LPELR – 44678 (CA); Ogbe V.

Okonkwo & Ors. (2018) LPELR – 43876 (CA). ​1st – 4th RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 1st – 4th Respondent had submitted inter alia that the lower Court was right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondents from investigating the case reported against him by the 5th Respondent as he failed to prove any breach of any of his fundamental rights and contended that the powers of the Police includes the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others and urged the Court to hold that the 1st – 4th Respondents acted strictly in line with their statutory mandate in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant for which he was duly arrested, detained and released on bail to await his arraignment and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel referred to Section 4 of the Police Act 2020, and relied on Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569 ​It was also submitted that there was no scintilla of evidence to show that the money paid by the Appellant to the 5th Respondent was done under any form of duress or that it was paid as a prerequisite for his bail and contended that the surety to the Appellant, his wife one Mrs.

Hope Ngene Chukwudi voluntarily declared her none payment of any money to secure the bail of the Appellant and urged the Court to hold that the law accords a measure of primacy to documentary evidence, of which the bail bond is one and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Ogbe V. Asade (2009) 18 NWLR (Pt. 1172) 106; Osibowale V. Carribcan Finance Ltd (2012) All FWLR (Pt. 627)1; Lamina V. Maidugu (2015) 7 NWLR (Pt. 1458) 323; Udo V. State (2018) LPELR – 46132 (CA); Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. 132) 369.

It was further submitted that from the documentary evidence by way of both the bail application and the bail bond, it is clear that the 1st – 4th Respondent did not at any time act as debt recovery agent of the 5th Respondent as falsely alleged but not proved by the Appellant and contended that whatever settlement took place between the Appellant and the 5th Respondent was out of their own mutual agreement to do so and having nothing to do with the 1st – 4th Respondents and urged the Court to hold that all that the 1st – 4th Respondent did was in line with their statutory duties to confront the Appellant with the allegation of crime reported against him by the 5th Respondent.

Respondents further state that at the station the Appellant was confronted with allegations of crime reported against him and the investigation into his claim of an armed robbery attack on him, which was found to be untrue and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. Counsel relied on Hassan V.

EFCC (2014) NWLR (Pt 1389) 630. ​It was also further submitted that the issue of whether the Appellant was charged to Court within any stipulated time was not an issue canvassed before the lower Court and therefore, in law, it cannot be canvased on appeal without the leave of this Court and contended that the Appellant having not sought and obtained the prior leave of this Court this fresh issue is incompetent and must be discountenanced and urged the Court to hold that, at any rate, it is not in every case that the Police must charge a suspect to Court as it may in some cases obtain the legal advice of the DPP to filter and determine which matters should be charged to Court to obviate the possibility of inundating the Courts with all manner of charges and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Akintola & Anor V. Akintola & Anor (2022) LPELR – 57235(CA); Okechukwu V.

FRN (2018) LPELR – 50877 (CA). ​On his issue two. learned counsel for the Respondent had submitted inter alia that although the lower Court had held that arrest was necessary before investigation, the 1st – 4th Respondents showed clearly that based on the complaint of the 5th Respondent the Appellant was never arrested but was only invited and he came on his own and made statement to the Police at about 6/3/2018 and was only detained to provide a surety to take him on bail which he failed to provide until 8/3/2018 when his wife came forward to sign the bail bond and he was released on bail and contended that there is no law that mandates the Police to carry out its investigation in a particular order and urged the Court to so hold and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel referred to Section 35 of the Constitution of the Federal Republic of Nigeria (as amended), and relied on Ajayi V. State (2013) 9 NWLR (Pt. 1360) 605; Udo.

V Essien (2015) 5 NWLR (Pt. 1451) 103. ​5TH RESPONDENT’S COUNSEL SUBMISSIONS On his issue one, learned counsel for the 5th Respondent had submitted inter alia that what the Police investigated the Appellant for was not for debt but for the offence of fraud, which constitutes the crime of cheating somebody in order to get money or goods illegally and contended that the matter before the lower Court bordered on the fraudulent acts of the Appellant in obtaining money from the 5th Respondent which was reported to the Police for investigation and urged the Court to hold that the Appellant having himself admitted his fraudulent acts, there was no further need for the 1st – 5th Respondents to prove why the Appellant was investigated by the Police in the due performance of their duties and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Atanda V. Iliasu (2013) 18 WRN 1 AT p. 20; APC V. INEC (2015) 3 WRN 1 AT p. 62; Ezeugo V. Agim (2015) LPELR – 24572; Fajemirokun V. CB Nig. Ltd (2009) 5 NWLR (Pt. 11356) 588 AT p. 600.

It was also submitted that the 5th Respondent only made a bona – fide complaint to the Police for the swindling of his N6,400,000.00 by one Emeka in Port Harcourt and the Appellant, out of which the Appellant admitted to have received the sum of N1,500,000.00 swindled from the 5th Respondent and contended that the lower Court having taken to review and evaluate the entirety of the affidavit, counter affidavit and reply affidavit of the parties came to the correct conclusion and finding that the only motive of the Appellant, in the face of his obvious involvement in the swindling of the 5th Respondent, was merely to stop Police from carrying out its statutory duties as the matter had nothing to do with any debt recovery and urged the Court to so hold and to dismiss the appeal and affirm the judgment of the lower Court. ​On his issue two, learned counsel for the Appellant had submitted inter alia that in law that there are no laydown rules on how the Police is to carry out investigation of a complaint of crime made to it by complainant except the Constitutional provision that regulates the period of detention of the Suspect before arraignment and contended that it is at the discretion of the Police on how to carry out the investigation depending on the set of facts of the complaint and urged the Court to hold that what determines the mode of investigating any offence reported to the Police is based on the discretionary powers of the Police over the set of facts of each case and to dismiss the appeal for lacking in merit and affirm the sound judgment of the lower Court.

Counsel referred to Section 4 of the Police Act, 2020 and relied on Olusina Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 AT p. 605; Garuba V. Yahaya (2007) Vol. 145 LRCN 549 AT p. 558; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Ezeanuna V. Onyema (2011) WRN 21 (g) pp. 60 – 61; Ayanru V. Mandilas Ltd (2007) Vol. 147 LRCN 1036(g) p. 1058. APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 1st – 4th RESPONDENTS My lords, the reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry.

The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The Appellant’s reply brief is clearly not in consonance with the clear provisions and the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See Edo State House of Assembly & Ors V.

Igbinedion & Ors (2021) LPELR – 55990 (CA) @ pp. 55 – 57, per Sir Biobele Abraham Georgewill JCA. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR-47373 (CA).

Be that as it may, it was submitted inter alia that it was established as fact that the Appellant paid the sum of N500,000.00 to the 5th Respondent at the Police Station before he was released on bail and since in law facts admitted need no further proof, the lower Court ought to have come to the conclusion that all that the 1st – 4th Respondents did was merely to act as debt recovery agents of the 5th Respondent and grant the claims of the Appellant against the Respondents and contended that by their admission it was proved that the 1st – 4th Respondents clearly acted as debt recovery agents for the 5th Respondent in collecting from the Appellant the N500,000.00 as part of the debt of N1,500,000.00 due to the 5th Respondent and urged the Court to hold that the Appellant was made to pay the sum of N500,000.00 to the 5th Respondent by the 1st – 4th Respondents at the Life Camp Police Station under duress before his release on bail and with an undertaking to pay further N1,000,000.00 within a period of time and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the 1st – 5th Respondents.

Counsel referred to Sections 107 and 123 of the Evidence Act 2011, and relied on Offor & Anor. V. State (2012) LPELR – 19658 (SC); UBA V. Jargaba (2007) 31 NSCQR 144 AT p. 166; Ezemba V. Ibeneme (2004) 19 NSCQR 352 AT p. 410; Ajao V. Alao (1986) 5 NWLR (Pt. 45) 802; Onyeresi V. Okorocha & Ors. (2019) LPELR – 49475 (CA) 51; United States V. Alzate (1995) 47; United States Vs Gonzalez ​(2005) 407; Okonkwo V. State (1998) 8 NWLR (Pt. 561) 210; People V. Petznick (2003) 114 CaI.App.4th 663; United States V. Navarro (2010) 608; Ruffin V. State (2008) 992; United States V.

Harris (1997) 104; Yadis Nigeria Ltd. V. Great Nigeria Insurance Company Limited (2007) All FWLR (Pt. 370) 1348; Redeemed Christian Church of God (Hagiazo Parish) V. Akadiri & Anor (2019) LPELR – 46780 (CA) 16; Federal Republic of Nigeria V. Mohammed (2014) 19 WRN 1 (a), p. 43; Prince (Dr.) B. A. Onafowokan & Ors V. Wema Bank Plc & Ors (2011) 5 SCNJ 266; Prof. Olufeagba & Ors V. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 SCNJ 349 AT P. 373; Yadis Nig. Ltd V. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig. Ltd V. OMPADEC (2007) 2 S.C.N.J. 218; Saraki V.

Kotoye (1992) 11/12 SCNJ 26 AT pp. 42 – 43. ​It was also submitted that on the issue of the Appellant not being charged to the Court by the Police, in law the Appellant cannot force the 1st – 4th Respondents to prosecute him, therefore such arguments could not have been canvassed by the Appellant before the lower Court and contended that the claim of the Appellant is simply that his fundamental right was infringed upon by the 1st – 4th Respondents as he was arrested and detained not in keeping with the provision of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria but as debt recovery agents of the 5th Respondent as he was only released on bail after he paid part of the alleged indebtedness in the sum of N500,000.00 and urged the Court to hold that the Appellant was therefore, entitled to the enforcement of his fundamental rights against the Respondents contrary to the perverse findings of the lower Court and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 46 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended).

APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 5th RESPONDENT In his reply, learned counsel for the Appellant had submitted inter alia that the appeal borders on the lower Court’s refusal to enforce the fundamental rights of the Appellant and contended that an appeal is by way of a re-hearing of questions involved in an action as presented before the lower Court and not a new suit altogether and urged the Court to hold that before the lower Court the issue of fraud was never raised and should therefore, be discountenanced and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel relied on Attah V. IGP (2015) All FWLR (Pt. 805) 108 AT p. 146; Osolu V. Osolu (2003) FWLR (Pt. 172) 1777 AT p. 1800; Oloruntoba – Oju V. AG Fed (2017) All FWLR (Pt. 874)965 AT p. 1976; Okoye & Anor V. Ecobank (2019) LPELR – 47350 (CA); Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941)1 AT p. 70; Ali V. NDIC (2014) LPELR – 22422.

RESOLUTION OF ISSUES ONE AND TWO My Lords, consideration of issues one and two would, in my view, involve the evaluation of affidavit, counter affidavit and reply affidavit evidence as led by their parties and the findings reached thereon by the lower Court in the judgment appealed against to see whether or not there was proper evaluation of the evidence and correct findings reached therein by the lower Court? ​By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.

It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.

This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.

It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V.

COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. ​Now, before the lower Court, the Appellant filed an Affidavit and a Reply Affidavit. In response, the 1st – 4th Respondents filed a Counter affidavit, annexed to which were five documents marked as Exhibits NPF 1, NPF 2, NPF 3, NPF 4 and NPF 5. Now, Exhibit NPF2, NPF 2 is the extra-judicial Statement of the Applicant at the Life Camp.

Abuja, Police Station, and it shows clearly that the Appellant was arrested on 6/3/2018, an arrest which the 1st – 4th Respondent described simply as an invitation as if the Appellant had any choice in the matter, whether to honour or not to honour the invitation of the 1st – 4th Respondents. Then, Exhibits NPF 3 and NPF 4, are the bail application and bond and evidence of deposit of the sum of N500,000.00 by the Appellant on 8/3/2018. with an undertaking to make available a further sum of N1,000,000.00 to the 5th Respondent between 8/3/2018 and August, 2018.

So, why was the Appellant invited as claimed by the Police or arrested as claimed by the Appellant? Was it merely for the purposes of recovery of debt owing to the 5th Respondent by the Appellant as claimed by the Appellant or was it for the purpose of investigating the fraudulent obtaining of the sum of N6,400,000.00 from the 5th Respondent by the Appellant and his alleged cohort, one Eric? See pages 1 – 5, 17 – 18, 19-25; 26 -29; 37- 40, 41-45, 51-69, 70 -77 of the Record of Appeal.

In the judgment appealed against, the lower Court thoroughly reviewed and evaluated the entirety of the affidavit, counter affidavit and reply affidavit of the parties, as well as scrutinized the documentary Exhibits placed before it and came to the finding that the arrest, detention and release on bail of the Appellant by the 1st – 4th Respondents acting upon the complaint of the 5th Respondent against the Appellant was justified by law and therefore, did not constitute any infringement of any of the fundamental rights of the Appellant as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended).

To my mind, and to my understanding too, this is the real crux of this appeal.

I have taken a closer look at the succinct provisions of Section 46(1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and immediately apparent to me from these provisions is the settled position of the law that, unlike in other civil actions in which the remedy is attached to the wrong done, in actions for enforcement of fundamental right as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended), which is the basic law of the land, a breach need not have occurred or taken place before an application can be commenced to secure the protection and/or enforcement of the fundamental right of the citizen from being breached.

Thus, in fundamental rights enforcement, the mere likelihood of arrest would suffice to ground an action. See Section 46 (1) of the Constitution of Nigeria 1999 (as amended). See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and the African Charter on Human and Peoples Right Ratification and Enforcement Act. See further Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill JCA. ​However, by Section 4 of the Police Act, CAP.

P19, LFN 2004, which provides as follows: “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.” My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st – 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law.

See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR – 52949(CA), per Sir Biobele Abraham Georgewill JCA. See also Olusegun & Anor V. EFCC & Ors (2018) LPELR – 45825 (CA), per Sir Biobele Abraham Georgewill JCA, Imoh & Anor V. EFCC & Anor (2018) LPELR – 46579 (CA), per Sir Biobele Abraham Georgewill JCA; EFCC V. Diamond Bank Plc & Ors (2018) LPELR- 44217(SC).

There is evidence before the lower Court, which was not even denied by the Appellant, that he had in cohorts, making plan with and in collusion with one Eric Melius to defraud the 5th Respondent of the princely sum of N6,400,000.00 for Eric Metius to supply 36,000 litres of gasoline product to the 5th Respondent, which turned out to be a hoax, and out of which the Appellant admittedly benefited to the tune of N1,500,000.00.

Thus, looking at the facts and circumstances of this case as in the Record of Appeal, it seems very clear to me, and I so hold, that there were enough grounds of reasonable suspicions, amounting even to clear prima facie evidence of the commission of crime against the Appellant as reported by the 5th Respondent to the 1st – 4th Respondents, and for which the 1st – 4th Respondents were, in law, both empowered and justified to put into full motion and operation their machinery of investigation against the Appellant to investigate him for the alleged offence of fraudulent obtaining as was reported against him by the 5th Respondent.

I also do not see any evidence of any money paid as a condition for bail of the Appellant as there is no such indication in Exhibits NPF 3 and NPF 4. which are the application and bail bonds. Honestly, I cannot but agree with the apt and unassailable submission of the learned counsel for the 1st – 4th Respondents, as well as learned counsel for the 5th Respondent that the lower Court was impeccably right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondent’s from investigating the case reported against him by the 5th Respondent.

Thus, the finding by the lower Court that the Appellant failed woefully to prove any breach of any of his fundamental rights is unimpeachable and must therefore, be allowed to stand. I do hereby, and without much ado, so allow it to stand. We as appellate Court do not make an habit of interfering with the correct findings of the lower Court, but rather we affirm them as correct and end the matter. See Adamu V. Ashaka Cement Co. Plc (2015) LPELR – 25610 (CA) per Sir Biobele Abraham Gcorgewill JCA.

Indeed, the powers of the Police include the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others, and the 1st – 4th Respondents, on the proven evidence before the lower Court as in the Record of Appeal, acted strictly in line with their statutory duty in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant, including his own voluntary admission. See Section 4 of the Police Act 2020. See also Atakpa V.

Ebetor (2015) 3 NWLR (Pt. 1447) 569. See also Hassan V. EFCC (2014) NWLR (Pt 1389) 630. My lords, what, if I may ask, was the Appellant even thinking of? A person colludes with another and rips off another of the princely sum of N6,400,000.00 and get his princely share of N1,500,000.00 of the loot and then returns to the victim and inform him that armed robbers had robbed, but I think the proper description should have been ‘re – looted, his own share of the allegedly swindled sum of N1,500,000.00 whilst he was in transit from Port Harcourt to Abuja.

The Appellant really needed and looked forward, perhaps, to a medal of honour, or is it dishonour, from the 5th Respondent as well as the 1st – 4th Respondent, whose investigation revealed that the story of armed robbery on the highway against the Appellant was also a hoax. I find neither any evidence of any duress nor of any debt recovery activity on the part of the 1st – 4th Respondents.

The sum of N6,400,000.00, of which a part thereof amounting to N1,500,000.00 was collected by the Appellant are not product of any debt but of crime, which is subject to the investigative powers of the Police. The Appellant must be ready to face the consequences of his wrong choices in life! He can neither put the blame on others or on the Society or even on the Police for taking action against him, if so moved by a valid complaint, as was done by the 5th Respondent against him, within the confines and limits of their powers under the law.

See Section 4 of the Police Act 2020. ​It follows therefore, that in law arrest properly made by the Police or any of the Law Enforcement Agencies cannot constitute a breach of fundamental Rights. Thus, a citizen arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the Police in Court for the breach of his fundamental rights, and if he does so he cannot succeed in such a claim against the Police. See Sambo V.

Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249, where it was stated inter alia thus: “No citizen of Nigeria no matter his status is above the laws of the land and is subject to the powers of arrest and detention upon reasonable suspicion of having committed a criminal offence” See also Udo V Essien (2015) 5 NWLR (Pt. 1451) 103. ​In the light of all I have stated above, I thought I should make it abundantly clear there is no initial onus on the Police to prove the negative that the Appellant’s fundamental rights were not breached unless and until the Appellant has presented at least prima facie evidence of the alleged breach or threatened breach of his fundamental right against the Police.

Thus, in law the burden of proof lies on anyone who asserts to prove what he asserts, and in cases of enforcement of fundamental rights, the burden is on the Applicant to prove that his fundamental rights was breached or in danger of being breached. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569; Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249.

I have scanned through the entire Record of Appeal and I cannot find or see where the parties joined any issues cither on the failure of the Police to charge the Appellant to Court within any specified time or whether the Appellant was invited rather than arrested, both of which amounts in my view to one and the same, and therefore, these not being issues canvassed by any of the parties, cannot become issues in this appeal by their parties mere wishful thinking and/or belief without the requisite prior leave of this Court sought and obtained to do so.

These issues are hereby discountenanced as going to no issue in this appeal. ​Now, having held that the 1st – 4th Respondents acted within the limits of the powers conferred upon by them by law in arresting, detaining and releasing the Appellant on bail on the serious criminal allegations of fraud, of which there was prima facie evidence before the Police, including the admission by the Appellant before the Police, I consider issue two for determination as having become merely academic as there was prima facie reason or basis for the arrest of the Appellant. ​However, had there not been a prima facie basis for the arrest and detention of the Appellant, then issue two for determination would have become apposite since it is time the Nigeria Police, and indeed all other Law Enforcement Agencies, should desist from arresting and detaining Citizens accused of one crime or the other in order to look for prima facie evidence to justify that prior arrest and detention, rather than for the Police to conduct discreet investigation upon a complaint, as it is done in other climes, to find reasonable suspicion or prima facie evidence to warrant an arrest.

In other words, an arrest merely for the purpose of looking for prima facie basis for the arrest is wrong. It should rather be prima facie evidence as basis for an arrest. This is what civilized and best practices in good policing entails.

Thus, it is for the Police to investigate at least to ascertain some form of prima facie evidence before proceeding to arrest a suspect if prima facie there is evidence of the commission of an offence, unless the Suspect was caught in action in the alleged commission of the crime. See Fawehinmi V. IG. Police (2002) All NLR 357 (SC) AT p. 374, where the Supreme Court per Uwaifo, JSC had emphatically stated inter alia thus: “I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect.

It is completely wrong to arrest, let alone to caution a suspect, before the police look for evidence implicating him.” My lords, even at the level of this Court in the hierarchy of Courts in this Country, we too have spoken in clear condemnation of the procedure whereby an arrest is made first by the Police before evidence to incriminate the suspect is scavenged for by the Police. See Agbebaku V.

State (2015) FWLR (Pt. 791) 1423 AT p. 1447, where this Court Ogunwumiju, JCA (as he then was but now JSC) had stated inter alia thus: “The first step in criminal administration upon the commission of a crime is police investigation. The next step is securing the presence of the accused person before the Court, either by the use of private summons, public summons or warrant of arrest. In extreme cases where the accused is evading and refusing appearance before the Court, a bench warrant is issued.” I think I have said enough!

In the light of all I have stated and found as above, issue one for determination is hereby resolved against the Appellant in favour of the 1st – 5th Respondents. On the whole therefore, having resolved issue one for determination against the Appellant in favour of the 1st – 5th Respondents, and having duly discountenanced issue two for determination as being merely academic, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, this appeal is hereby dismissed.

In the result, the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. ECT/UC/CV/1609/2018: Chukwudi Ngeme V. Inspector General of Police & Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed, is hereby affirmed. There shall be no Order as to Cost.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed. The decision of the High Court of Federal Capital Territory Abuja Division in Suit No. FCT/HC/CV/1609/2018 delivered on 30/4/2019 is hereby affirmed. I abide by the consequential Orders.

DANLAMI ZAMA SENCHI, J.C.A.: I have read in advance before now, the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed. ​The judgment of the High Court of the Federal Capital Territory, Abuja delivered on 30th April, 2019 in suit No. FCT/HC/CV/1609/2018 by BELLO KAWU, J is hereby affirmed. No Order as to costs.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Federal Capital Territory (FCT) High Court, Abuja, delivered on May 8th, 2020 by Hon. Justice O. C. Agbaza wherein the Respondent’s application was granted and an order recognising the arbitral award dated November 6th, 2018 was granted in favour of the Applicant the Respondent herein.

The Appellant was dissatisfied with the decision of the Court that it refused to set aside the arbitral award of November 6th, 2018 but rather ordered recognition of same as earlier stated. It filed its Notice of Appeal on May 18th 2020 and as amended with Four (4) Grounds of Appeal on September 10th, 2020 of same date, deemed as properly filed and served on February 3rd, 2022. The following reliefs in the main are being sought: “i. An Order allowing the appeal. ii. An Order of this honourable Court setting aside the decision of the trial Court. iii.

An Order of this Court setting aside the arbitral award. iv. An Order of this Court dismissing/striking out Motion No. M//2987/19 Brief facts as garnered from the printed record placed before this Court that culminated into this appeal are that the Respondent bought four (4) units duplex at No. 40 Madeira Street, Imani Estate, Maitama, Abuja from the Appellant for Seven Hundred and Ten Million (N710,000,000.00) Naira.

The Appellant undertook to refund the Respondent’s purchase fee, solicitor’s fee and the bank charges where it is unable to perfect its title to the property or if an adverse third party claimed title on the property. The Respondent was forcefully evicted by an Agency of the Federal Government of Nigeria which laid claim to the property. The Appellant in spite of demands by the Respondent for possession or refund of purchase fee, failed to do anything.

According to the Appellant, the Respondent was not disturbed in any way in the possession of the property in spite of the action of the said Government Agency. The Respondent on the other hand, pursuant to the Arbitration clause contained in their agreement gave notice of Arbitration. The Final Award was published by Prof. Paul Idonigie in favour of the Respondent after the arbitral proceedings. The Appellant for that reason filed an Originating Motion as amended at the FCT High Court and sought to set the arbitral award aside whilst the Respondent filed an application for its recognition.

The decision of the Court in favour of the Respondent is being appealed against by the Appellant. The following in the main were the reliefs sought by the Appellant at the Court below: “1. A DECLARATION that the arbitral award of Prof. Paul Obo Idornigie, SAN, PHD, FCIS, FClArb (UK), C. Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited is not binding on NICON Insurance Limited (the appellants herein). 2. AN ORDER of the honourable Court setting aside the arbitral award of Prof.

Paul Obo Idonigie SAN, PHD, FCIS, FClArb (UK), C.Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited. In compliance with the rules of this Court parties filed their briefs. Appellant’s brief dated September 9th, 2020, filed September 10th, 2020 deemed as properly filed and served on February 3rd, 2022 was settled by Olumide Olujinmi Esq., who urged that the appeal be allowed. The Respondent’s brief is dated and filed February 23rd, 2022 and settled by Chief Duro Adeyele SAN, who urged in opposition that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION “i. Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii. Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” RESPONDENT’S ISSUES FOR DETERMINATION “1.

Whether the Court below was right in refusing to interfere with the decision of the Sole Arbitrator in his award published, the Appellant having failed to establish alleged want of jurisdiction or alleged misconduct against the Sole Arbitrator in making the Award. 2. Whether considering the facts and circumstances of the applications before it, the Court below was right in granting an order of recognition and enforcement of the award of the Sole Arbitrator, Prof. Paul O.

Idonigie, SAN FClArb (UK) C.A. and dismissing the application for an order setting aside the award.” Carefully reading through the two sets of Issues as afore going, one finds that they are similar in content and objective and is satisfied that the issues donated by the Appellant will justly and fairly determine this appeal. Therefore, I adopt the Appellant’s Issues.

APPELLANT’S SUBMISSION The learned Appellant’s Counsel submitted that the Court was wrong to have held as it did, given the fact that the issue involved was that of jurisdiction of the arbitral Tribunal which Order 19 R. 12(h) of the FCT High Court Rules allows any party to pursue. The Appellant contended that the cause of action pursued by the Respondent had not crystalized when it went before the Tribunal and so the Sole Arbitrator had no jurisdiction to grant the award it did. In support, he cited the cases of NWORA V. NWABUEZE 2019 7 NWLR PT. 1670 1, OGBIMI V.

OLOLO 1993 7 NWLR PT. 304 128 and EFCC V. AKINGBOLA 2015 14 NWLR PT. 1478 199. He argued that there was no third-party successful challenge of the peaceable possession of the property by the Respondent. The Indemnity Agreements between the parties are in Exhibits A, B and C in support of Clause 10 in the Sale Agreement between the parties. In support, he cited the cases of OJUKWU V. GOV. OF LAGOS STATE 1985 2 NWLR PT. 10 806 and EDUN V. PROVOST, LACOED 1998 13 NWLR PT. 580 52.

Further that the Arbitral Tribunal too was in the same error as the Respondent that there was a successful third-party challenge and the wrong arbitral award in consequence. He cited the cases of SEHINDEMI V. GOV. LAGOS STATE 2006 ALL FWLR PT. 311 1858 and SILAS OKOYE V. CHIEF AKAGBUA KPAJIE & ORS 1972 6 SC 98. He submitted that the Tribunal was also wrong in its meaning of peaceable possession for not putting any value on the fact that the Respondent received some benefit from the contract as it was in possession for 14 months.

That in essence the Tribunal created a new contract for the parties from its wrong interpretations and therefore should not be allowed to stand and in support cited the cases of EKONDO COMMUNITY BANK LTD V. ANIETING 2013 LPELR 21139 CA 15 and NIKA FISHING CO LTD V. LAVINA CORPORATION 2008 16 NWLR PT. 1114 509. Therefore, he submitted that the Arbitrator’s act amounted to misconduct which can be set aside and in support cited the case of BAKER MARINE NIG LTD V. CHEVRON NIG LTD 2000 12 NWLR PT. 681 393, In consequence, he submitted that the jurisdiction of the Tribunal never arose.

In conclusion, he urged that the appeal be allowed. RESPONDENT’S SUBMISSION The learned silk submitted that the contention of the Appellant in the main was that the Arbitral Tribunal had no jurisdiction as the cause of action had not crystalized and that the Sole Arbitrator misconducted himself in the interpretation he gave to the successful third party challenge and peaceable possession. Arbitral awards are not appealable in Nigeria, they are binding and to a great extent final and in support he cited the cases of ADAMEN PUBLISHERS NIG LTD V.

ABHULIMEN 2016 6 NWLR PT. 1509 431 and BAKER MARINA NIG LTD V. DANOS & CUROLE MARINA CONST INC. 2001 7 NWLR PT. 712 337. And that it is in line with the intendment of the Arbitration and Conciliation Act, 2004 Section 34 as the Appellant sought in a way to appeal the award though went under the guise of misconduct on the part of the Arbitrator. ​ He argued that there was no misconduct on the part of the Arbitrator as described in Section 29 of the Arbitration and Conciliation Act, 2004. ​

That the Court below agreed that cause of action had arisen where the Respondent stopped enjoying the peaceable possession of the property it purchased when the third party claimed adverse title and successfully took possession from the Respondent. That the submission of the Appellant is in a bid to frustrate the Respondent from enjoying the fruits of the award as the argument on jurisdiction is absurd and in support he cited the case of FCMB PLC. V. AIB NIG PLC 2000 8 NWLR PT. 667 42.

Further in support of the fact that there can be no appeal over the award of the Tribunal and that for the issue of lack of jurisdiction of the Tribunal, the maxim is kompetenz-kompetenz, that the Tribunal is competent to inquire into its own jurisdiction as provided in Section 12 (1) of the Arbitration and Conciliation Act and its decision thereupon shall be final as contained in Section 12 (4) of the Act.

He submitted that the Arbitrator had resolved the issue of the jurisdiction of the Tribunal when it dealt with the question whether the claim for return of purchase price by the Respondent was premature or not through the specific clauses in the Contract of Sale, Deed of Assignment and Deed of Indemnity between the parties. Further that the Court rightly found that the Respondent was successfully dispossessed of peaceable possession of the property by third party adverse claimant. And that the arbitral proceedings commenced in that regard was not premature.

He submitted that decision is therefore final and binding. He submitted further that the Court was right to have found no misconduct by the Sole Arbitrator. That the allegation of misconduct is not only woolly but unfounded and a misconception of what misconduct means in arbitral proceedings. Further that the judicial authorities cited on whether a trespasser can forcefully dispossess of peaceable possession of property are irrelevant herein.

He asserted that the Appellant did not deny that there was dispossession in fact of the Respondent and the Appellant had to proceed to Court over title with those it termed trespassers and has been unable to restore possession to the Respondent. ​ The learned Silk submitted that the motion for the recognition of the arbitral award was not in any way challenged as there was no Counter-affidavit in opposition or point of law raised. Therefore, the Court was right to have so deemed it.

Notwithstanding, it examined all the materials submitted by the Respondent in that respect in line with the provision of Section 31 (2) of the Act before reaching its decision he argued. Consequently, the complaint of the Appellant that failed to challenge the application for recognition of the arbitral award is of no moment he submitted as the Appellant had conceded the Motion. In support, he cited the case of MABAMIJE V. OTTO 2016 ALL FWLR PT. 828 883 898 and HONDA PLACE V. GLOBE MOTORS HOLDINGS NIG. LTD 2005 14 NWLR PT. 945 273.

In conclusion, he urged that the appeal be dismissed and the decision of the Court below affirmed. POSITION OF THE COURT Having very carefully considered the briefs of both parties and thoroughly read through the Record before this Court I shall commence consideration of the Appellant’s two (2) issues which are reproduced hereunder for ease of reference along with the findings of the Court below: ISSUES I AND II “i.

Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral Tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii.

Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” Two applications as consolidated were considered and determined in the ruling of the Court below that is being appealed; the Appellant’s, CV/492/18, to set aside the arbitral award and the Respondent’s, M/2987/19 to recognise and enforce the award.

The Appellant’s grouse in the main was that the cause of action leading to the grant of the arbitral award had not crystallized and as such the sole arbitrator lacked the necessary jurisdiction to grant the award as it did. The Court below found to the contrary hence this appeal. The Court considered and determined the issue of jurisdiction of the arbitral Tribunal in the grant of the award.

It found that the arbitral proceedings were not premature as the Appellant argued as it found that the cause of action had crystalized which is an issue of jurisdiction. ​ It clearly considered and made findings on whether the Tribunal went outside its scope with regard to the agreement and so was able to hold that there was no misconduct and that it rightly made the award in question. The meanings it gave to the peaceable possession and successful third-party challenge as provided for in Exhibit A, B, C and H which is the final award itself.

The Appellant claimed that even though there was trespass upon the property it sold to the Respondent, it could not be interpreted to mean and be equal to the parties’ intendment in the Indemnity agreement as contained in Exhibits A, B, and C. That the trespass could not be taken to mean a successful third-party challenge of peaceable possession of the property sold to the Respondent.

It is necessary to note that the parties agreed in clause 10 of the Contract of sale, Exhibit A thus: “10 – The vendor hereby undertakes to indemnify the purchaser for any want and/or defect in title not herein disclosed.” See page 707 of the Record. The Deed of Indemnity, Exhibit B particularly paragraphs 2 and 4 state as follows: “This undertaking is in furtherance of clause ten (10) of the DEED OF ASSIGNMENT signed by both parties wherein NICON INSURANCE LIMITED Transferred her title in the above property to BRIGHTHOUSE ESTATE LIMITED.

NICON INSURANCE LIMITED further undertakes to do all that is necessary for the perfection of the title of BRIGHTHOUSE ESTATE LIMITED with the Lands Registry i.e ABUJA GEOGRAPHIC INFORMATION SYSTEM and any other Agency (s) saddled with this responsibility.” See Exhibit B, page 716 of the Record. The Appellant argued that the case of the Respondent before the Tribunal that there was a total failure of consideration was wrong and should have failed as it was based on the fact that the Respondent was by a third-party adverse claimant.

That the prayer of the Respondent in that regard was for the Arbitral Tribunal to invoke the foregoing stated indemnity clauses in Exhibits A, B, and C and the Respondent should have made a case in law that there was a successful challenge by the third party. Therefore, there was no breach of any of the terms of the Contract Agreement warranting the final award by the Tribunal.

The Court correctly found in my view and humbly as follows on page 1017 of the Record: “Having carefully considered the entire processes – Clause 7, 8 of Exhibit A, Exhibit B along with Clause 10 of Exhibit C and Exhibit H along the judicial authorities cited, this Court resolve this issue 1, in the negative and in favour of the Respondent.” One could not agree more with the Court.

Respectfully one wonders if the trespass did not amount to third party successful adverse challenge of the property what then was it and at what stage would it crystalize to so qualify particularly when the Appellant up to the stage of the arbitral award was unable to put the Respondent back unto possession of the property from the said trespasser. The Respondent was in fact evicted and could not recover possession both during and after the arbitral proceedings.

Further respectfully, what then was happening with the Respondent out of the property it had legally paid for and hitherto peaceably occupied. In my humble view, the fact that the Respondent occupied the property for some months before the eviction does not remove from its right to recover the property or get its money back. The contract from Exhibit A did not give the impression that it was for a few months to test run.

Clause 8 of Exhibit A, the Contract of Sale states thus: “8 – The vendor subject to the consent of the Honourable Minister, Federal Capital Territory, Abuja, Nigeria, first sought and obtained has agreed to surrender/assign all its rights and interests in and over the Plot to the Purchaser free from all encumbrances.” See page 707 of the Record. Clause 10 of Exhibit C, the Deed of Assignment states equally thus in support of the Respondent’s case: “10 – The Assignor hereby undertakes to indemnify the Assignee for any want and/or defect in title not herein disclosed.” See page 720 of the Record.

The argument by the Appellant that because the cause of action had not crystalized, the Arbitral Tribunal therefore lacked jurisdiction to have entertained the matter and granted the award cannot hold and respectfully is of no moment. The Appellant further argued that the Tribunal was in error by the way it construed “peaceable possession” to the effect that there was a clear breach. That since the Arbitrator was wrong in the interpretation which led to the award, he misconducted himself and the award ought to be set aside.

As correctly held by the Court, there was no misconduct on the part of the Arbitral Tribunal.

The law is clear on what would amount to misconduct which this Court listed in the case of STABILINI VISINONI LTD V. MALLINSON & PARTNERS LTD LPELR 23090 CA 2014.

It stated misconduct to include an Arbitrator failing to comply with the terms express or implied, an award which on the ground of public policy ought not to be enforced, an Arbitrator who collects bribe or corrupted, where the Arbitrator makes a mistake as to the scope of his authority from the agreement of reference, where the Arbitrator fails to decide all the matters referred to him, where he breached the rules of natural justice and he fails to act fairly between the parties.

The sole arbitrator in the instant appeal does not fall within any of the foregoing situations that will amount to misconduct. The Court was right when it held that the Appellant failed to “show clearly how the Arbitrator acted wrongly in considering the facts before him, amounting to misconduct as stated within any of the definition of what amounts to misconduct.” The Court in the light of the foregoing was unable to set aside the final award and correctly too.

Section 29 of the Arbitration and Conciliation Act 2004 allows an award to be set aside where the party applying is able to prove that the award is outside matters within the purview of the Tribunal. The Court was unable to find that the Tribunal was outside the agreement which brought about arbitration. I have also gone through the gamut of the Record and unable to find that the Arbitrator misconducted himself.

The Court therefore was right when it held thus on page 1021 of the Record: “Having carefully perused this instance issue by considering issues outside the agreement of the parties and along the long line of judicial authorities, this Court finds that the Applicant has failed to furnish sufficient proof in line with the law, to warrant this Court to set aside this Final Award published on 6th November, 2018…” The Arbitral Tribunal properly entertained the Respondent’s matter.

It is not in question at all that both parties agreed that in the event of a dispute they would go to arbitration by Clause 16 of Exhibit A, the Contract of Sale. See page 711 of the Record. The second application before the Court as aforestated by the Respondent pursuant to Section 31 of the Arbitration and Conciliation Act sought the following prayer in the main: “1. An order recognising and enforcing the Arbitral Award in favour of the Applicant against the Respondent dated 6th November, 2018 and published same day, by the Sole Arbitrator, Professor Paul Oboh Idornige, Ph, FCI Arb (UK) C.

Arbitrator, Certified True Copy of which is attached as Exhibit “B”.” As contained in the record and in the light of the foregoing findings of the Court on the Appellant’s application that the award be set aside and the fact that there was no opposition to the second application by the Respondent for the recognition and enforcement of the award, the evidence required by the Court in support of the second application is very minimal. As already stated and found, the Court below considered the jurisdiction of the Arbitral Tribunal.

The Appellant as the Respondent to the application as stated did not file any counter-affidavit. The Court found that the facts contained in Exhibits A and B forwarded in support of the Respondent’s application were not challenged and that it has earlier refused to set the same award aside upon the application of the Appellant. In the circumstances, it therefore granted the Respondent’s application. In consequence, the two issues are resolved against the Appellant. In the result, this appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed.

The ruling of the Federal Capital Territory High Court delivered on May 8th, 2020, by Hon. Justice O. C. Agbaza is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, E. O. Williams-Dawodu, JCA gave me the privilege of reading in advance the draft of the judgment just delivered. Having carefully perused the record of appeal and the submissions of counsel in this appeal, I am in agreement with the findings of my learned brother that this appeal lacks merit and that it be dismissed. The Appellant as Respondent in the Court below did not dispose to sufficient facts showing why the arbitration award be set aside. On that note, I also hold that this appeal has no merit. It is hereby dismissed.

I abide by the consequential order made in the leading judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have read before now the lead judgment of my learned brother, E O. Williams-Dawodu, JCA just delivered. The lead judgment painstakingly considered and determined all the issues canvassed on appeal and I agree with the finding and conclusion arrived thereafter in the lead judgment that this appeal lacks merit and it is dismissed. ​ Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 8th day of May, 2020 by O. C AGBAZA, J is hereby affirmed. I make no order as to cost.

Judgment

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): The Motion on Notice filed on 13/12/2021 prays for an order granting leave to the applicants to appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court; some of the grounds being grounds of mixed law and facts and/or of facts simpliciter; and an order granting leave to the Applicants to, within fourteen (14) days of the grant of leave to appeal, file its Notice of Appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court in terms of the proposed Notice of Appeal, Exhibit B attached hereto.

The grounds for the application are:- 1. On the 10th day of December, 2021 this Honourable Court delivered a Ruling in this appeal. 2. Dissatisfied with parts of the decision contained in the Ruling, the Applicant is desirous of lodging an appeal against the decision in the said Ruling in terms of Exhibit B. ​3. Some of the grounds of the appeal appear to be grounds of mixed law and facts and of facts simpliciter. 4.

By the relevant law and the Rules of this Honourable Court and having regard to Ground 3 above, leave of this Honourable Court is required to file the proposed Notice of Appeal (Exhibit B) against the said decision of this Honorable Court. The motion is supported by an accompanying affidavit in support of four main Paragraphs and an affidavit of urgency also of four (4) main Paragraphs. Both affidavits were duly deposed to by one Tola Oni on behalf of the applicants with two documentary Exhibits A (a certified true copy of the said Judgment and Exhibit B (copy of the proposed notice of appeal).

The applicants’ Counsel contended in the course of moving the application that the applicants are seeking the leave of this Honourable Court to appeal against the Ruling of this Honourable Court delivered on the 10th of December, 2021. That it is not in doubt that the grant or refusal of applications such as the instant motion on notice is within the discretion of this Honourable Court – Ukachukwu vs. PDP (2014) 4 NWLR (Pt. 1396) 65, Dr. Alex Otti & Anor v. Dr. Samson Uchechukwu Ogah & Ors. (2017) 17 NWLR (Pt. 1563) 1.

That what is required of this Court in an application of this nature is to peruse the proposed notice of appeal to decipher whether the grounds therein are substantial- Samson Uchechukwu Ogah & Ors. (Supra). According to Counsel, the major grouse of the Applicant is that this Court proceeded to grant reliefs 1-3 of the Appellant/Respondent’s motion on notice dated 5th July 2021 and extended time within which the Appellant/Respondent may appeal against the order of the Federal High Court delivered on the 16th of February 2021.

That this Court granted reliefs 1-3 on the ground that the alleged mistake of counsel is unacceptable and sufficient reason for the grant of an extension of time to appeal contrary to the settled position of the Supreme Court in the case of Elias vs. Eco bank Nigeria Ltd. (2019) 4 NWLR (Pt. 1663) 381 at 402-403. ​That this on its own, demonstrates the substantiality of the grievance of the Applicant and the proposed appeal against the said decision.

According to Counsel, some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts -Bat Nig. Ltd. & Anor vs. Gallaher Ltd & Ors. (2015) LPELR-41824 (CA) and NDIC vs. Sadam & Co. Ltd & Ors. (2019) LPELR-50966 (CA). That a further review of the proposed appeal will reveal a good and substantial reason why the appeal ought to be heard.

In opposing the grant of the application, the Respondent filed a counter affidavit of five main paragraphs duly deposed to by Christopher Friday and a written address.

According to Counsel the issue is whether the application of the Applicant is supported by law in terms of the Third/Fourth Alteration of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which removes the defunct sub-section (3) of Section 233 under which the Applicant has brought its application, and subsequently removes the jurisdiction of the Supreme Court to entertain an appeal based on facts and/or mixed law and facts.

That Exhibit B attached to the Applicant’s application is essentially challenging the exercise of discretion of this Honourable Court in granting leave to the Appellants/Respondents to file their Notice of Appeal which has been held by numerous authorities that where manifold injustice would be occasioned to the Respondent, discretion of Court cannot be challenged.

According to Counsel, this Honourable Court lacks jurisdiction to grant the Applicant’s application on the basis that the Third/Fourth Alteration of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has removed the defunct Section 233 (3) which allows the Supreme Court to hear an appeal on the ground of facts and/or mixed law and facts. We submit that the Supreme Court, like any other Court is a creation of statute.

By virtue of Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) – that the express mention of a thing is to the exclusion of all other – Omatseye vs. Federal Republic of Nigeria (2017) LPELR- 42719; Ehuwa vs. O.S.I.E.C (2006) 10 NWLR Pt. 1012 at 544. That one of the conditions which must be fulfilled by the Applicant before an application for leave can be granted, is that, there is a prima facie good ground of appeal pending before the Court.

Counsel further submitted that Exhibit B which is the proposed Notice of Appeal has not shown any prima facie good ground that can compel the exercise of discretion in favour of the Applicant – Brathwaite vs. Dalhatu (2016) 13 NWLR (Pt. 1528) 32 at 56 Paras. A-F. That the only reason why the Applicant is seeking leave to appeal to the Supreme Court is because the Applicant is querying the exercise of the discretionary power of this Honourable Court in favour of the Respondent.

According to Counsel, the attitude of Appellate Court to the exercise of discretion is that unless the exercise is manifestly unjust, arbitrary and reckless, the Appellate Court will not interfere. That the Applicant has not shown that the grant of the discretion of this Court is manifestly unjust and/or reckless in the light of the facts before the Court.

He urged the Court to dismiss the application with substantial cost. ​In the applicant’s reply on point of law, it was submitted that the power of the Supreme Court to entertain appeals is provided for in Section 233 (1) of the 1999 Constitution. That the above provision made no distinction between appeals involving question of facts or of law or of mixed law and facts.

That the above provision bestows upon the Supreme Court of Nigeria a blanket authority to hear and determine any appeal that may arise from the Court of Appeal; and that it is therefore inconceivable to contend despite the clear provision of Section 233(1) of the 1999 Constitution that the jurisdiction of the Supreme Court is ousted for appeals involving questions of mixed law and fact. That at best, the interpretation would be that appeals on questions of law alone can be made to the Supreme Court without leave. That the observation by the Supreme Court in the case of Shittu vs.

PAN Limited (2008) 15 NWLR (Pt. 1642) 195 is at best an obiter and ought to be discountenanced by this Court. He urged the Court to allow the application. DETERMINATION OF THE APPLICATION The basis upon which the Applicant has premised the instant application is that some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts.

In deciding whether to grant an application for leave to appeal to the Supreme Court on grounds of mixed law and fact, the Court of Appeal is mandated to review the affidavit in support as well as the proposed notice of appeal to decipher whether or not grounds of mixed facts and law exist therein. A review of the proposed notice of appeal attached as Exhibit B will reveal that some of the questions raised therein are grounds of mixed law and facts. Ground one complains about the Honourable Court exercise of discretion in the Appellants/Respondents’ motion on notice dated 5th July 2021.

Where a ground of appeal challenged the exercise of discretion by a Court, it is a ground of mixed law and facts – Chief of Air Staff & Ors vs. Flying Officer Edward & Ors (2019) LPELR-51173(SC); Emeakayi vs. COP (2004) 4 NWLR (Pt. 862) 159; Roper & Anor vs. Iman & Ors. (2016) LPELR-41571 (CA); Okeke & Ors. vs. Okeke & Ors. (2013) – LPELR-22565 (CA). The mere fact that Section 233(2) makes mention of appeal as of right presupposes that there are certain instances where appeal may be made with leave of Court; regardless of the fact that Section 233(3) was deleted.

The Appellants/Respondents placed heavy weather on the case of Shittu vs. P.A.N Limited (2018) 15 NWLR (Pt. 1642) 195. They contended that the Supreme Court in that case held that appeals involving questions of mixed law and facts ends at the Court of Appeal. Indeed, the Supreme Court in a good number of cases, decided after Shittu vs. P.A.N Limited (Supra) and the 1st, 2nd & 3rd Alterations Acts, 2010, has continually held the view that appeals involving grounds of mixed law and facts can be made to the Supreme Court provided leave of Court is sought and obtained. See: Nwagbara vs.

Jadcom Ltd (2021) LPELR-55329 (SC); Eneh vs. NDIC & Ors. (2018) LPELR-44902(SC); Fasuyi & Ors. vs. PDP & Ors (2017) LPELR-43462(SC); Okwuagbala & Ors v. Ikwueme & Ors. (2010) LPELR-2538(SC). In the case of Obayuwana & Ors. vs. Adun (2020) LPELR – 49377 (SC) the Apex Court held that:- “The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No Appeal on questions of fact lies to this Court without such leave.

In other words, where a question of fact has been brought before this Court without leave, the Court has no jurisdiction. Simply put, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained – See Ukpong vs.

Commissioner for Finance and Economic Development (supra), wherein Onnoghen, JSC (as he then was) explained:- “Where an appeal is to be with leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same”. The Respondents also argued that there are no arguable grounds in the proposed notice of appeal. Grounds 1, 3 & 4 question the striking out of the appeal as against the dismissal.

Ground 2 challenges the striking out of the appeal in the face of Section 53(5) of the Asset Management Corporation of Nigeria Act.

Clearly, these are not only arguable grounds but highly contentious ones that are deserving of the Supreme Court’s consideration. ​The application is therefore meritorious and is hereby granted thus:- 1) Leave is hereby granted to the Applicant to appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court; some of the grounds being grounds of mixed law and facts and/or of facts simpliciter. 2) Leave is hereby granted to the Applicant to within fourteen (14) days from today, file its Notice of Appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court in terms of the proposed Notice of Appeal as per Exhibit B (the proposed notice of appeal).

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the Ruling of my lord ABDULLAHI MAHMUD BAYERO, JCA and I agree with the reasoning and conclusions of my lord in the said Ruling. I have nothing useful to add.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft the lead Ruling prepared by my learned brother, Abdullahi Mahmud Bayero, JCA. I am in agreement with his reasoning and conclusion that the application is meritorious and deserves to be granted. I equally grant the application and abide by the orders made in the lead Ruling.

Judgment

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment) : The Appellant in this appeal was charged on a one count charge for the offence of Obtaining Money by false pretense punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. The lower Court after taking the evidence of the parties evaluated same and the submission of Counsel, delivered its judgment on 28/02/2022 as found at pages 178-196 of the record of this appeal.

In the said judgment, the Lower Court, presided over by his Lordship, Fadawu Umaru J. of the Borno State High Court, Maiduguri Judicial Division, convicted the Appellant for the offence charged, and sentenced him to Seven years imprisonment. The lower Court which is also the trial Court specifically at pages 194-195 of the record held thus: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false.

The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or goods such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR (Pt. 1734) 103 at 129 to 130. I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution.

On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt. Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ It is this judgment that the Appellant is appealing against. The Appellant filed a Notice of Appeal on 29/3/2022 of 4 grounds found at pages 197-200 of the record.

Although, the fact that culminated into this appeal are not complicated, it is however, the application of the law to those facts that have thrown up some challenges in the case and indeed this appeal.

The case of the Respondent in the lower Court presented through PW1, PW2 and PW3 is that one Engineer Abba Aji Monguno, the nominal complainant wrote a petition against the Appellant to the Economic and Financial Crimes Commission (EFCC) on 6/6/2020, alleging that the Appellant deceived him into parting with the sum of Three Million Naira (N3,000,000.00) as the Appellant used a fake Purchase Order purported to have emanated from the Danish Refugee Council under the guise of executing a contract which was found to be false.

This amounts to a fraudulent act which led to the arraignment of the Appellant by the EFCC, and event ual conviction and sentencing of the Appellant for the offence of Obtaining under False Pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

Conversely, the Appellant’s case is that he made no such representation to the PW1, although, he admitted borrowing the sum of N3,000,000.00 from the nominal complainant, who is the father of PW1 which he could not pay back because thieves burgled his house and took the sum of Six Million Naira (N6,000,000.00) from which the payment to the Appellant should have been made. While not denying that he took money from the nominal complainant, the Appellant denied vehemently that he made a representation to PW1 that he needed the money to execute a contract.

The lower Court did not believe him and therefore, convicted and sentenced him on the ground that the Respondent had proved his case beyond reasonable doubt. Upon filing the Notice of Appeal, and compilation and transmission of the record to this Court, the Appellant filed his brief through his counsel, Ibrahim Haruna Ngada Esq., wherein he formulated 3 issues for determination viz: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence.

Arguing the first issue, Appellant’s Counsel submitted that the lower Court relied absolutely on the oral evidence of PW2 who stated that his investigation revealed that there was no contract and the money transferred to the Appellant’s account was used for a different purpose by sending the money to different accounts, making cash withdrawal and settling premature loans.

Learned counsel further submitted that PW3’s evidence that he analyzed the statement of account of the Appellant which revealed that the Appellant spent the money for purposes the money was not taken was rejected in evidence, and this cannot be relied upon by the Court to convict the Appellant, citing in reliance Alam Oparaji & Ors Vs. Nwosu Ohanu & 7 Ors (1999) 9 NWLR(Part 618) page 270 at 307, Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR(Pt.999).

It is the further submission of counsel that the evidence of contents of a document is not admissible save the document itself, as provided for by Section 125 of the Evidence Act 2011 and the decision of the Court in General Sani Abacha & 3 Ors Vs. Chief Gani Fawehinmi (2000) 6 NWLR (Part 660) Page 228 at 295. Learned counsel submitted further that the trial Court approbated and reprobated at the same time when it rejected the document, but admitted the oral evidence over the document in convicting the Appellant.

Learned counsel urges this Court to resolve the first issue in favour of the Appellant. On issue 2, Learned Appellant’s counsel submitted that the burden of proof of a criminal charge is on the prosecution which is proof beyond reasonable doubt, Learned counsel referred this Court to a plethora of authorities, among which are: The State V. Nathaniel Okpala (2012) 3 NWLR (Part 1287) page 388 at 400-401 paras H-D, Enesi Lukman Abdullahi Vs. The State (2008)17 NWLR (Part 1115) page 203 at 216 Para H, Sabina Chikaodi Madu Vs. The State (2012)15 NWLR (Part 1324) Page 405 at 454-455 paras H-B.

It is the further submission of Counsel that the inability of the nominal complainant, Engr. Abba Aji Monguno to testify, and the none tendering of the purported fake or false Purchase order by the Respondent in the trial Court made the decision of the Court untenable. Learned Appellant’s counsel anchored this submission on the evidence of PW1 at page 162 line 17 of the record to the effect that no document was ever given to the nominal complaint by the Appellant.

On Exhibit B, Learned Counsel submitted that it is documentary hearsay and that by Section 38 of the Evidence Act 2011, is inadmissible and not to be relied upon by the Court. He also submitted that the evidence of PW1 was mere allegations and suspicions and PW2 and PW3 inability to investigate the robbery incidence that affected the Appellant is fatal to the case of the Respondent and the decision of the Court.

The Respondent according to counsel is unable to prove beyond reasonable doubt the ingredients of the offence the Appellant was charged for and therefore, the conviction and sentence of the Appellant was wrong. ​ In his effort to further extricate the Appellant from the rope of conviction on his neck and the sentence, Learned Appellant’s Counsel submitted that the evidence of the Respondent’s witnesses could not establish the offence, and the investigation was casual as PW2 and PW3 admitted not writing to the Danish Refugee Council to confirm whether there was a fake order or even if the said Ibrahim Mbasuwa was a contractor as explained by the Appellant.

He urged this Court to hold that there was no false Pretence. Learned Appellant’s Counsel did not only submitted that the Respondent could not establish false pretence and the element of fraud, but also that the case of the Respondent is based purely on mere suspicion which has no place in criminal liability referring to University of Calabar V. Franklin C. Ugochukwu & 9 Ors (2007)17 NWLR (Part.1063) page 248 at 264 paras B-G.

On the final issue, Learned Counsel submitted that the burden of proving guilt is on the Respondent and this burden does not shift, relying on Federal Republic of Nigeria Vs. Mohammed Usman & Anor (2012) 8 NWLR (Part 1301) page 141 at 156-157 paras H-A, Corporal Desmond Ononuju Vs. The State (2014) 6 NWLR (Part1409) page 345 at 389-390 paras G-A.

It is the submission of counsel that the trial Court shifted the burden to the Appellant to prove his innocence when it asked him to call his friend, Ibrahim Mbasuwa to tender the document from Danish Refugee Council, or any document from the police or call a neighbor to prove that the Appellant’s house was burgled. Learned Counsel for the Appellant finally urged this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.

The Respondent through Ojogbane Amade Johnson Esq., filed its brief on 05/7/2022 and therein formulated a sole issue for determination viz; Whether the learned trial judge was right to have convicted the Appellant on a one-count charge of obtaining under false pretense and sentenced to seven years imprisonment under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act 2006.

In his submission on this sole issue, learned Respondent’s Counsel invited this Court to take judicial notice of the combined effects of Sections 1(1) (a), and Section 20 of the Advanced Fee Fraud and Other Offences Act, 2006 pursuant to Section 112 of the Evidence Act 2011, together with the case of Brilla Energy Ltd. Vs.

F.R.N (2018) NWLR part 1645, while listing the ingredients of the offence of obtaining by false pretense, and urged this Court to dismiss the appeal. ​ In respond to the submission of the Appellant in paragraphs 4.1.1 and 4.1.2 of his brief, the learned Respondent’s counsel submitted that PW2 and PW3 testified as operatives of the EFCC, and were competent to testify as their evidence were based on their investigation, and such evidence cannot be hearsay, citing Interdrill (Nig) Ltd Vs. United Bank for Africa Plc (2017) ALL FWLR (pt.904) SC Page 1177 at 1193 paras E-H.

Relying on the evidence of PW1, PW2 and PW3, the documents tendered in Court, learned Respondent’s Counsel submitted that the Respondent has discharged the burden placed on it by law to prove the guilt of the Appellant beyond reasonable doubt which its need not prove by a host of witnesses. It is the further submission of learned counsel that the case of Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR (Pt. 999) cited by the learned Appellant’s counsel was irrelevant as the trial judge did not rely on the rejected document in his judgment.

Learned Respondent’s Counsel urged this Court to take judicial notice of Sections 1,3,4,5, 6, 7 and 122(2)(a) of the Evidence Act 2011 which imposes an obligation on the Court to admit evidence and facts that are relevant to the fact in issue which was relied upon by the trial Court. Learned Counsel also referred this Court to pages 163-165 of the record and further reviewed the evidence of PW1 and PW2 while submitting that Exhibit B does not amount to documentary hearsay.

Learned Counsel urged Court to dismiss the appeal and affirm the decision of the trial Court. ​ The submissions of counsel on behalf of parties to this appeal revealed the precise nature of the facts of the case. The Appellant was charged, tried and convicted for an offence contrary to and punishable under Section 1 (1)(b) and 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.

The charge in summary is that the Appellant made a representation which he knows to be false to the effect that he had a contract or a Purchase Order from Danish Refuge Council, upon which he took N3,000,000 from one Egnr Abba Aji Monguno for the purpose of executing the contract which was alleged to be faked and probably non-existing. In simple language, the Appellant allegedly collected the said money on false Pretence. The lower Court subjected the Appellant to full trial, took evidence, and finally convicted and sentence the Appellant for the offence charged.

The Appellant is now challenging his conviction on the premise that the Respondent could not prove the offence for which he was charged. Before I look at the merit of this appeal, I should reproduce the provision of the law the Appellant was charged, convicted and sentenced for.

The section provides thus: “Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud – (a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or (b) induces any other person, in Nigeria or in any other country, to deliver to any person; or (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act… (3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.” From the above provision, the prosecution must prove the element of false pretence with the intention to defraud against a defendant for any conviction to stand.

See Ikpa vs State (2017) 4 NWLR (pt 1609) 175, Onwudiwe vs FRN (2006) LPELR-2715 (SC), Adeniji vs FRN(2021) LPELR-52818 (CA). The trial Court had convicted and sentenced the Appellant which translate to mean that the Court was satisfied with the evidence before it that the Respondent had proved the ingredient of the offence beyond reasonable doubt by either direct evidence, circumstantial evidence, and or confessional statement.

My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law.

See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. In doing so, I also must make a point very clear which is that, it is of no moment to inquire on the evidence as to whether the Appellant’s house was burgled into and the sum of N6,000,000.00 stolen. Also from the facts of the case and the charge against the Appellant, it is not relevant at all whether the Appellant paid back the money or the reasons he could not pay back.

The offence is related to when and why the Appellant took the money from PW1’s father and maybe, what he did with the money but certainly, not whether he has paid or why he has not paid. All the reference in the judgment and the submissions of counsel on whether the case of the burglary was reported to the police and on whom lies the burden to prove that is a completely out of place here. I certainly will not engage in such a wasteful exercise.

I will rather deal with issues relevant to this appeal. ​ In this regard, I wish to adopt the three issues by the learned Appellant formulated ’s counsel in his brief. These issues, to my mind, are apt and covered the complaint contained in the grounds of the Appeal. However, before I do so, I will state some general principle of criminal law that will assist me in deciding this appeal. Whether I will allow or dismiss this appeal depends solely on whether the trial Court applied the established principle of criminal law in deciding the case before it.

I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent.

The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416.

I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107.

The duty on the Respondent to prove that the Appellant is guilty of the offence he is charged for must be either by direct evidence, circumstantial evidence or confessional statement. See State vs Sadiq (2022) 5 NWLR (pt 1824) 413, Okiemute vs State (2016) 15 NWLR (pt. 1535) 297.

Once again and for the avoidance of doubt, I must state that the burden to prove that the Appellant committed the offence he was charged for is solely on the shoulders of the Respondent. The standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt.

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs.

The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held: “Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.

In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.

As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.

See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.

From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.” Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held: “Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt.

One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.” The criminal justice system will rather let 10 guilty people go scot-free than for one innocent person to be wrongly convicted. This is why conviction would not be based on suspicion no matter how grave but on clear evidence pointing to the accused as the person who indeed, committed the offence.

SeeIgbikis vs State (2017) 2-3 S.C. (pt 1) 78, State vs Ajayi (2016) LPELR-40663(SC). In Udor vs State (2014) LPELR-23064(SC) to drive home this point the apex Court held: “The law is indeed trite that suspicion, no matter how strong it is, cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See the State v. Ogbubunjo (2001) 2 N.W.L.R. (Pt.698) 576.” Per MOHAMMED, J.S.C.

This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA).

Let us return from our undergraduate days and specifically address the issue. In this respect, it is very important to roll out the ingredients of the offence the Appellant was charged for in the lower Court. I had mentioned above that clearly the Respondent would have proved that there was false pretence with intention to defraud. The law under which the Appellant was charged defined what will amount to false pretence.

I quote same as follows in Section 20 of the Interpretation Section of the Act as follows: “‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” To amount to an offence of obtaining by false pretence, under this section as expressed in so many cases, the Respondent ought to prove the following ingredients as stated in Ezeani vs FRN (2019) LPELR-46800(SC) where the apex Court held as follows: “Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004.

The law states as follows: “Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud: (a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine….

On the counts of obtaining by false presence, the transaction has shown clearly as follow: 1. That there was a pretence. 2. That the pretence emanated from the accused persons including the appellant. 3. That the pretence was false. 4. That the appellant and his co-accused person knew that it was false. 5. That there was an intention to defraud 6. That the monies obtained from the PW1 was capable of being stolen, and 7.

That the appellant induced the owner of the money to transfer his whole interest in the property……” Per OKORO, J.S.C One more case directly on the ingredients of the offence will not hurt. This is the case of Darlington vs FRN (2018) 11 NWLR (pt 1269) 152, the apex Court held:

“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts

I. A pretence is made by way of representation.

II. From the accused person. III. To the person defrauded. IV. The representation is a pretence. IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person. VIII. The property transferred is capable of being stolen i.e. is as portable.

These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.” Per EKO, J.S.C.

On the strength of the above, the decision of the lower Court will only be affirmed if those elements are proved beyond reasonable doubt by either direct evidence, circumstantial evidence or through a confessional statement. At this point, I will reproduce the issue for determination in this appeal in the Appellant’s brief which I hereby adopt. The issues are: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence. RESOLUTION ISSUE ONE On issue 1, I am of the opinion that the decision of the trial Court was not based on rejected evidence as the Appellant’s counsel submitted.

It is trite law that a document rejected by a Court has no life and cannot be relied upon by any Court in arriving at a decision. The rejected document is of no relevance whatsoever in law and lacks probative value. See Amgbare vs Sylva (2009) 1 NWLR (pt 1121) 1, Airtel Network Ltd vs Plus Ltd (2020) 15 NWLR (pt 1747) 235, Emokpae vs Stanbic-IBTC P.M Ltd (2015) 17 NWLR (pt 1487) 57. I have gone through the judgment, and I am comfortable in holding that the decision of the Court was not based on the rejected document but rather on the evidence of PW1, PW2 and PW3.

What constitute evidence before a Court are oral, documentary or real evidence, and any of the parties before a Court can establish his case by any of the evidence listed above.

I am not aware of any law that says that oral evidence can only be relied upon when it corresponds with a document.

Although, in law, a type of evidence for instance, documentary evidence, can carry more weight than oral evidence, but a party can still establish his case by oral evidence alone in the absence of any documentary evidence. The fact that the document was tendered and rejected does not make any oral evidence on the content of the document inadmissible as Appellant’s counsel wants us to believe.

The position of Appellant’s counsel in this front, is new learning to me, a point I do not want to learn because, it does not represent the correct legal position. Although there is a common saying that ‘we learn everything’, but certainly not what does not represent the correct and current legal position in an issue.

What the law requires is that once a document has been tendered and admitted, no oral evidence will be allowed which is at variance with the documentary evidence. See Ibrahim vs Abdallah & Ors (2019) LPELR-48984(SC), Bello vs Idris (2022) LPELR-56730 (CA).

In the instant case, there is no documentary evidence which can be compared with the oral evidence to show any variance. The Respondent’s witnesses are at liberty to testify even if the evidence is on all force with the content of the rejected document. It is only wrong if the Court base its judgment on the document. In this appeal, the judgment is based on the oral evidence and not the rejected document. To buttress this point I will quote again the decision of the trial Court at pages 194-195 of the record.

This is what the Court said: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false. The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or good, such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR(Pt. 1734) 103 at 129 to 130.

I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution. On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt.

Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ There is nothing in this portion of the judgment or any part of the 25 pages judgment which suggest that the lower Court relied on the rejected document. While I am firmly of the opinion that the decision of the trial Court is not based on the rejected document, I will therefore, resolve this issue in favour of the Respondent.

ISSUES TWO & THREE I will address issues 2 and 3 together. The question are whether the Respondent proved its case at the trial Court beyond reasonable doubt and whether the Court appropriately placed the burden of prove in the right place? I have stated above the ingredients of the offence the Appellant was charged with, and for which he was convicted and sentenced. I have also stated that the Respondent has a duty in law to prove beyond reasonable doubt all the ingredients of the offence.

The Respondent case at the trial Court as prosecution is that, the Appellant made a false presentation to the father of the PW1 that he has a contract with Danish Refugees Council which made him depart with N3,000,000.00 to enable the Appellant execute the contract. By the wordings of the charge sheet, the Appellant was alleged to have used a fake purchase order to carry out this deceptive act. The fake purchase order was falsely and fraudulently presented as original to PW1’s fatherwhich he acted on.

This the Appellant denied of ever presented any purchase order to the nominal Complainant, Engineer Abba Aji Monguno but rather, told him to borrow to the Appellant, some money for him to carry out a contract awarded to his friend for which the said Abba Aji Monguno was to get Three Hundred Thousand Naira (N300,000) as interest or profit from the loan. The question here therefore is whether the evidence before the trial Court lane toward obtaining money by false pretence, based on the alleged fake purchase order or on the fact that it was a loan given to the Appellant.

It is my opinion that if the trial Court had agreed with the Appellant that it was a loan he secured from Engr. Abba Aji Mongunor, the decision will not have gone the way it did. The decision went the way it did because the Court is of the view that the Appellant made a false representation to make the nominal Complainant part with his N3,000,000.00. What is paramount here therefore, is the status of the purchase order presented to the nominal Complainant.

The question therefore is, whether there is sufficient evidence before the trial Court that such a representation was made by the Appellant to Abdulwahab Abba Aji, the PW1 or his father, the nominal complainant. I must state without any equivocation that the Respondent has the duty and indeed burden to show before the Court that a purchase order was indeed, shown to the nominal complainant which turned out to be fake. This is a key factor in determining this appeal.

The operative word is ‘fake’. For anything to be fake, there must be an original. The purchase order will be declared fake after comparing same with the original.

I must make the point the Appellant has ably made through his counsel that there is no document before the Court indicating or looking like a purchase order. The Appellant has also rightly in my view challenged the investigation of the PW2 and PW3 as not being thorough when it did not contact Danish Refugee Council to know whether there was a contract given to either the Appellant or the friend of the Appellant whom the Appellant said got the contract from. The fact that the Appellant was unable to produce his friend Ibrahim Mbasuwa is not damaging to his case.

This will only become relevant if the Respondent had produced or given satisfactory evidence that the Appellant presented fake purchase order to the PW1. The statement written by the Appellant which are Exhibits A, A1-A5 are not admission or confessions as they deny the offence the Appellant was charged for. The Appellant admitted receiving the money from PW1 but as loan, and not on any representation of falsehood with intention to defraud. In the circumstance, the burden is on the shoulders of the Respondent to have shown before the Court the ingredients of the offence.

I have gone through the judgment of the trial Court, I am unable to see where the Court gave reasons for the finding that all the ingredients of the offence has been proved. With due respect, no thorough evaluation was made of the evidence before the trial Court. I will at this point look at the entire record of the appeal viz- vis the evidence of the Respondent in determining whether the lower Court was right in its findings. In doing so, I am conscious of the fact that I will not interfere with the finding of the lower Court except it is perverse.

The case of the Respondent is founded on the evidence of PW1, PW2 and PW3. The evidence of PW1, Abdulwahab Abba Aji is found at pages 160-163 of the record. The PW1 made no mention of any purchase order presented to him talkless of its being fake.

His viva voice evidence at pages 160 and 161 of the record on the point states thus: “The accused called me sometime around 5th September, 2019 and asked me if I have money as he has secured a contract with Danish Refugee Council and that he need the sum of N2,000,000.00k…On 18/9/2019, that is after two weeks that the accused was to return the money the accused asked me to add N1,000,000.00.00K on the basis that the contract he is executing is at 80% completion and that he needs the N1,000,000.00k to complete the contract on the same terms and condition.” There is nothing in the above evidence that talked about any Purchase Order presented to the PW1.

This is important because the case of the Respondent against the Appellant is principally founded on alleged fake purchase order. The witness gave no evidence of purchase order presented to the father of PW, that is the nominal complainant, to convince him part with the money. PW2 is Emmanuel Emeka Ibeneme, an operative of the EFCC who was part of the team that investigated the petition against the Appellant marked as Exhibit B.

The evidence-in-chief of the PW2 also made no mention of purchase order, as all the witness said as his investigation revealed that the sum of N3,000,000.00 was transferred to the Appellant by the PW1 father for the purpose of a contract which was not in existence. The Appellant used the money for other purpose instead of executing the alleged contract which was found to be non-existing. The PW2’s investigation revealed that there was no contract issued to the Appellant.

He categorically said at page 165 of the record that: “There was no contract the accused only used that medium to obtain money from the complainant by false pretence.” Under cross–examination, PW2 admitted that his investigation did not take him to Danish Refugee Council because the Appellant did not present any document. In spite of this, the Appellant was charged for obtaining money under false pretence on the premise of presenting fake purchase receipt. This is strange. PW3 is an official of EFCC who also investigated the petition against the Appellant.

His evidence found at pages 166-169, is not radically different from PW2’s evidence. All that the witness did was to analyze the response from Guaranty Trust Bank with respect to the Appellant’s bank account domiciled there, and discovered that the money the Appellant received was not used for the purpose it was received. The witness did not take part in the final investigation, and under cross-examination he said he is not ‘aware if the accused (sic) facilitated a contract. I did not partake to the conclusion of the investigation’.

The documents attached to Exhibit B only shows that the sum of N3,000,000.00 was paid to the Appellant which he did not deny. It also shows that the Appellant tried to payback some amount out of the money. There is no evidence apart from the oral evidence that the money was used for other purpose. Once again there is nothing in his evidence relating to presentation of fake purchase order. It would appear to me that the way the charge was couched is such that the falsehood is based on the allegation of presentation and using of a fake purchase order.

This implies in my view a document which is a purchase order must be tendered. None of the Respondent’s witnesses mentioned anything about purchase order or the nature of the contract they claimed Appellant told the PW1’s father he had from the Danish Refugee Council. I will now turn to the evidence of the Appellant before the trial Court. His evidence is that he told the PW1 that he needed money to join someone by name Ibrahim Mbasuwa to execute a contract.

In his testimony, Appellant said in his evidence In-Chief at page 175 of the record that: “… I told the officer that I borrowed the money to join with a friend to secure a contract. I was shown the petition which I read I told the officer I had no purchase order… I did not obtain money by false pretence.” Under cross examination, Appellant said: “The N300,000.00k told (sic) was for the purpose of executing a contract.

I did execute the contract and I have no documents for the contract.” ​ I have gone through the above evidence there is no evidence whatsoever that fake purchase order was presented which misled the PW1’s father. While PW1 evidence is that the Appellant told him he needed the money to execute a contract he got from Danish Refugee Council, the Appellant said that he told the PW1 that he needed the money to jointly execute a contract with a friend.

In the light of this conflicting evidence, it is important to know how the trial Court evaluated the evidence to come to the conclusion that the Respondent proved its case beyond reasonable doubt. By the charge, the Respondent relied on a fake purchase order which was not part of the evidence of all the parties, and that the money was not used for the purpose it was taken for. There is no clear evidence on that apart from the PW2 and PW3 saying so.

The evidence of PW2 and PW3 will be inadequate in the light of the evidence of the Appellant that he used the money for the purpose he took same from the PW1’s father. There is no cogent evidence from PW2 and PW3 to prove that the Appellant actually gave the money to the people they claimed he gave the money to different from the main purpose it was given for. Since there is no such documentary evidence may be the counsel to the Respondent would have established same through skillful cross examination which he failed and did not.

Among the three ways of establishing criminal liability, it is only by circumstantial evidence that the Respondent can attempt to prove its case against the Appellant. As I had mentioned above, the question is not whether the Appellant collected N3,000,000.00K from PW1’s father or whether it was for the purpose of executing a contract, but whether the Appellant obtained the money under false pretence with intention to defraud by presenting or using a fake purchase order. The Appellant said he jointly executed a contract with the money with his friend who he could not produce.

The Respondent’s witness especially PW2 and PW3 said there was no contract. The question is how did the Respondent’s officers know that there was no contract when their investigation did not take them to Danish Refugee Council where the Appellant claimed his friend Ibrahim Mbasuwa got the contract from. This is even on the face of the glaring evidential on record when the Appellant gave the name of the company and the name of his partner with whom he was going to execute the contract. The EFCC did not investigate this, and failed in that respect. This is fundamental.

In the circumstances of this, the benefit of doubt should have to be resolved in favour of the Appellant. The Respondent having been unable to show that a fake purchase order was shown to PW1’s father, and that the money received by the Appellant from the PW1 was used for other purpose, the trial Court was wrong to have convicted the Appellant. The burden to establish the guilt of the Appellant is on the Respondent.

However, for the Respondent to allege that the Appellant did not produce his friend, Ibrahim Mbasuwa because the Appellant feared his testimony may work against him, is to turn the law upside down by asking the Appellant to prove his innocence.

Under no circumstance in a case of this sort in our accusatorial system of criminal administration and trial is the defendant required to prove his innocence. See Okoh vs State (2014) 2-3 S.C 184. In the recent case of Ibrahim vs State (2022) LPELR 58001 (SC), the Supreme Court on this point held: “Generally, there is no duty on the accused/Appellant to prove his innocence since under Nigeria system of criminal justice, there is no question of accused proving his innocence before the law Court hence during a trial, an accused may not utter a word as he is not bound to say anything.

The duty is on the prosecution to prove the charge against the accused beyond reasonable doubt whether or not the accused says anything. See Igabele v State (2006) 6 NWLR (Pt 975) 100 at 108, Williams v State (1992) 8 NWLR (pt 261) 515 at 516-517, Section 137 Evidence Act, Alonge v Inspector General of Police (1959) NSCC 169; (1959) 4 FSC 203.

The above principle is further enhanced in the provisions of the Constitution of the Federal Republic of Nigeria, which Section 36(5) of the 1999 provides thus: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that noting in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” Per PETER-ODILI, J.S.C. I resolved issues 2 and 3 in favour of the Appellant.

It is my considered view that the trial Court was wrong to have convicted the Appellant for the offence he was charged as the Respondent was unable to prove beyond reasonable doubt that the Appellant indeed, committed the offence. No Court could even depend on circumstantial evidence to convict a person when such evidence does unequivocally point to him as the person who committed the offence.

In the absence of clear evidence that the Appellant made false representation on the existence of a contract by presenting a fake purchase order with the intent to defraud PW1’S father, the conviction cannot stand. This appeal is therefore allowed and the judgment of Fadawu Umaru J., of the Borno State High Court delivered on 28/2/2022 wherein the Appellant was convicted and sentenced to 7 years imprisonment is set aside.

I cannot in good conscience affirm the judgment. The Appellant, Isaac Harami Ndahi is hereby discharged and acquitted.

JUMMAI HANNATU SANKEY, J.C.A.: I had the benefit of reading in advance the lead judgment delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his Lordship’s reasoning and conclusion. As has been stated in the leading judgment, the Appellant was arraigned before the lower Court on a one-count charge of obtaining money by false pretences punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. He pleaded not guilty to the charge and the Respondent adduced evidence through three witnesses in proof of the charge.

The Appellant also testified in his defence and called one witness. At the close of trial, the lower Court found the Appellant guilty as charged and sentenced him to seven years imprisonment. Dissatisfied, the Appellant filed an appeal to this Court wherein he complained on three grounds. The ingredients to prove a charge of obtaining money by false pretences punishable under Section 1(3) of the Act (supra) is as set out in the case of Ezeani V FRN (2019) LPELR-46800(SC) per Okoro JSC and Darlington V FRN (2018) 11 NWLR (Pt. 1269) 152 per Eko JSC.

The ingredients are – 1. that there was a pretence; 2. that the pretence emanated from the accused person; 3. that the pretence was false; 4. that the accused person knew it was false; 5. that there was an intention to defraud; 6. that the money obtained from the victim was capable of being stolen; and 7. that the accused induced the owner of the money/victim to deliver or transfer money or interest in property to the accused.

Upon examination of the evidence presented to the trial Court in satisfaction or proof of the above ingredients, PW1 was the son of the alleged victim, Engineer Abba Aji Monguno. His evidence was clearly less than satisfactory as he was neither the person who dealt directly with the Appellant in respect of the sum of N3,000,000.00 (Three Million Naira) received nor did he present the alleged fake/false Local Purchase Order based upon which the complainant gave the Appellant the money, at the trial Court.

PW2 and PW3 were officers of the EFCC who investigated the allegation made against the Appellant. However, apart from hearing from the complainant and taking the statement of the Appellant, which was not confessional, their investigation did not extend to the Danish Refugee Council to confirm whether or not it had a contract with the Appellant to establish the falsity or otherwise of any representation made to the complainant.

As a consequence of such shoddy investigation, the Respondent failed to establish the criminal intent of the offence alleged, also referred to as the mens rea in the actions of the Appellant when he requested and was given the sum of N3, 000, 000.00 by the nominal complainant. On his part, the Appellant did not deny receiving money from the complainant. His position however was that it was not done under false pretences, but that the money was given as a loan which he requested for to execute a contract.

Since the Respondent failed to prove otherwise, it failed to prove the charge against the Appellant. He is therefore entitled to an acquittal. It is therefore for these reasons, and for the fuller reasons in the lead Judgment, that I also allow the appeal. I abide by the consequential orders made therein.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the judgment of my learned brother, EBIOWEI TOBI, JCA and I am in concord with his decision that the appeal has merit and should be allowed. I allow the appeal and join my brother in setting aside the judgment of the lower Court wherein the Appellant was convicted and sentenced to seven years imprisonment. The Appellant is discharge and acquitted.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the High Court of Federal Capital Territory Abuja Division, Coram: O. O. Goodluck J, in Suit No. FCT/FIC/CV/4724/2011: Mrs Abe Ethel Ndidi V. Shammah Global Trades Limited & Ors delivered on 30/4/2019, in which the claims of the 1st – 2nd Respondents as Claimants against the Appellant as Defendant were granted. ​The Appellant was peeved with the said judgment and had appealed against it vide her Notice of Appeal filed on 15/6/2014 on Six Grounds of appeal.

See pages 456 – 462 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 19/11/2018. Subsequently, with the leave of Court an Additional Record of Appeal was transmitted to this Court and was deemed properly transmitted on 7/12/2021. The 1st – 2nd Respondents filed a Notice of Preliminary Objection on 3/3/2020. The 4th Respondent also filed a Notice of Preliminary objection 7/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 26/9/2022.

The Appellant was represented by Ananyo Adibe Esq. The 1st and 2nd Respondents were represented by B. K. Barikpoa Esq. The 3rd and 5111 Respondents were represented by L. O. Akangbe Esq. The 4th Respondent was represented by Florence Samuel Esq. SUCCINCT STATEMENT OF FACTS On 24/7/2006, the 1st and 2nd Respondents as Claimants commenced Suit No. FHC/ABJ/CS/288/2006 against the Appellant, the 3rd and 4th Respondents as Defendants before the Federal High Court, Abuja Division.

However, on 9/11/2010, upon the application of the counsel for the 1st and 2nd Respondents, the Federal High Court, per Aula J. (as he then was but later CJ) transferred the said Suit to the High Court of the FCT, where the Suit was reconstituted as FCT/IIC/CV/4724/2011 and served on all the parties. The Appellant as the 1st Defendant before the lower Court chose to ignore the processes and all the hearing notices served on her, although the 3rd and 5th Respondents filed their joint Defence to the Suit, though at the trial they did not call lead any witness.

However, on 17/5/2012, the name of the 4th Respondent was struck out on the application of 4th Respondent, who was the 3rd Defendant before the lower Court. The 1st and 2nd Respondent was therefore, not defended by any of the adverse parties, including the Appellant. ​ The substance of the case of the 1st and 2nd Respondents inter alia was that the Appellant was the allottee of Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja vide a Letter of Allocation issued in her favour by the 3rd Respondent.

However, following the Appellant’s agreement to sell her allocation letter to the 1st and 2nd Respondents, the Appellant handed over all the particulars of the said property to the Its and 2nd Respondents, for which the 2nd Respondent thereafter paid the sum of N700, 000. 00 to the Appellant as consideration for selling off her interest in the said property.

On 14/2/2005, the Appellant notified the 1st and 2nd Respondents that she has not only taken up possession of the property but that she had also rented it out for a term of 2 years and collected the sum of N500. 000. 00 from the tenant, but it later turned out that the Appellant actually took physical possession of the property without surrendering it to the 1st and 2nd Respondents.

All efforts by the 1st and 2nd Respondents to take possession of the property as owners as well as to deal with the Appellant’s mortgagors, the 4th Respondent was to no avail as their attempts to take over possession were resisted by the 4th Respondent as well as the 3rd Respondent, the Ministry of Housing, Lands and Urban Development, the Developers, hence the Suit by the 1st and 2nd Respondents to take over possession of the said property. See pages 1 – 24, 84 – 94, 102 – 108 and 329 – 333 of the Record of Appeal. See also pages 187 – 188 of the Additional Record of Appeal.

Before the lower Court, the 3rd and 5th Respondents who had initially filed their joint Defence did not also call any witness at the trial and the matter proceeded to trial and at the end of which judgment was entered in favour of the 1st and 2nd Respondents against the Appellant. On the part of the Appellant, she neither appeared nor defended the claims of the 1st and 2nd Respondents against her and the matter proceeded to trial and at the end of which judgment was entered against the Appellant in favour of the 1st and 2nd Respondents, hence, this appeal.

See pages 442 – 455 and 456 – 462 of the Record of Appeal.

ISSUES FOR DETERMINATION In the Appellant’s brief, three issues for determination were formulated as follows: 1. Whether the 1st and 2nd Respondents can acquire title to a mortgaged property without the consent of the Mortgagee first sought and obtained? (Distilled from Grounds 2 and 3) 2. What is the legal implication of the failure of the 1st and 2nd Respondents to obtain the Mortgagee’s consent before the alleged transfer of title of the property, subject matter in dispute? (Distilled from Ground 4) 3.

Whether the failure to serve the originating process and Hearing Notices on the Appellant, robbed the lower Court of the jurisdiction to entertain the matter? (Distilled from Ground 1) In the 1st and 2nd Respondents’ brief, three issues for determination were formulated as follows: 1. Whether in view of the peculiar facts of this case especially Exhibit PW1F, the Appellant, Mortgagor can alienate her interest in the Mortgaged property without the consent of the Mortgagee, in order to liquidate her indebtedness to the Mortgagee? 2.

Assuming but not conceding that the consent of the Mortgagee was crucial before the sale, can the Appellant after willfully selling her property and accepting payment, later turn around to repudiate the contract in the absence of fraud? 3. Whether the 1st and 2nd Respondents will be held responsible where the Appellant was served with the Originating processes and Hearing Notices but chose not to appear in Court? In the 3rd and 5th Respondents’ brief, two issues for determination were formulated as follows: 1.

Given the circumstances of the Suit and materials before the lower Court, whether the complaint of the Appellant that it was not served with the Originating processes in the Suit thereby robbing the lower Court of its jurisdiction is valid? 2. Considering the evidence before the lower Court, whether it was right in holding that the Appellant had sold her interest in Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja to the 1st and 2nd Respondents? My Lords, I have reviewed the pleadings and evidence of the 1st and 2nd Respondents, who alone led evidence at the trial before the lower Court.

I have also scanned through the entire processes and proceeding before the lower Court leading to the judgment appealed against by the Appellant, noting carefully all the proofs of service of every process in the Suit before the lower Court.

I have also considered the submissions of learned counsel for the parties in the light of the judgment of the lower Court, and I am of the view that the proper issues for determination in this appeal are the three issues for determination as formulated in the Appellant’s brief, a consideration of which would involve a consideration of the three issues as formulated in the 1st and 2nd Respondents’ brief as well as the two issues formulated in the 3rd and 5th Respondents’ brief.

However, I shall commence with the consideration of the Appellant’s issue three, together with the 1st and 2nd Respondents’ issue three as well as the 3rd and 5th Respondents’ issue one. Thereafter, and if need be, depending on the resolution of the issue three, I shall proceed to consider the Appellant’s issues one and two together with the 1st and 2nd Respondents’ issues one and two as well as the 3rd and 5th Respondents’ issue two and resolve all of them together in one fell swoop.

But first there are some preliminary objections, which being in the nature of jurisdictional issues, I shall proceed to consider anon! 1ST AND 2ND RESPONDENTS’ NOTICE OF PRELIMINARY OBJECTION By a Notice of Preliminary Objection, the 1st and 2nd Respondents are challenging the competence of this appeal on the grounds that pursuant to the provisions of Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), leave of Court was required before the Appellant can competently appeal against the judgement of the lower Court, and therefore, the failure by the Appellant to seek and obtain the prior leave of the Court before filing the Appeal rendered the Appeal incompetent and liable to be dismissed and or struck out.

The Notice of preliminary objection was supported by an Affidavit deposed to by one, Barikpoa Barabari Kiasira, a legal practitioner in the Law Firm of the Solicitors to the 1st and 2nd Respondents to the effect that no leave was sought and obtained before the filing of the Notice of Appeal by the Appellant against the judgment of the lower Court.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS In his submissions in support of the preliminary objection, learned counsel for the 1st and 2nd Respondent had submitted inter alia that the judgment appealed against for which the Appellant did not contest before the lower Court amounts in law to a specie of consent judgment and contended that in law the Appellant required the prior leave of this Court to competently file an appeal against the judgment of the lower Court entered in such circumstances and urged the Court to hold that the failure of the Appellant to do so rendered the Notice of Appeal field without prior leave incompetent and to uphold the preliminary objection and dismiss and or strike out the appeal for being incompetent.

Counsel relied on Alhaji Shuaibu Abdulkarim V. Incar (Nig.) Ltd (1992)7 NWLR (Pt. 251) 1 AT p. 16, Dr. P. A. C. Agwarangbo & Ors V. Winston Efioni Nakande (Carrying on Business under the name and style of Winston Nakande & Company (2000) 9 NWLR (Pt. 672) 341 AT p. 358, Chief Saro Manson & Ors V. Halliburton Energy Services Nig. Ltd & Or (2007)2 NWLR (Pt. 1018) 211 AT p. 234.

APPELLANTS’ COUNSEL SUBMISSIONS My Lords, surprisingly the learned counsel for the Appellants despite the service on him of the 1st and 2nd Respondents’ preliminary objection and brief, made no iota of any submissions in response to submissions in support of the preliminary objection by the 1st and 2nd Respondents.

RESOLUTION OF 1ST AND 2ND RESPONDENTS’ PRELIMINARY OBJECTION My Lords, in law the failure of the Appellant to make any counter submissions to the challenge of the competence of the appeal simply amounts to a concession by the Appellant that indeed the appeal is incompetent as alleged by the 1st and 2nd Respondents. This is so because in law where one party is duly served with the arguments of the other party but he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr.

Arthur Nwankwo & Ors V. Alhaji Umaru Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was now CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V.

Aderinoye (2013) 50 WRN 111. Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Elephant Group Plc V.

National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. See also Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

It is only in deference to the above position of the law and the overriding need to do substantial justice that I intend to proceed to consider and resolve the challenge to the competence of the Notice of Appeal on the allegation of failure to obtain the prior leave of this Court. Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent.

I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents.

The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgcwill. In the light of the above position of the law, the preliminary objection of the 1st and 2nd Respondents lack merit and it is hereby overruled and dismissed in its entirety.

RESOLUTION OF THE 4TH RESPONDENT’S PRELIMINARY OBJECTION The 4th Respondent had by a Notice of Preliminary objection challenged the competence of the Notice of Appeal on the grounds that the 4th Respondent is not a proper and necessary party to this appeal and therefore, the Court lacks the jurisdiction to entertain the appeal.

The learned counsel for the Appellant had no objection to the preliminary objection of the 4th Respondent not being a necessary party to this appeal, its name having since been struck out by the lower Court on its application before the proceedings leading to the delivery of the judgment against the Appellant. My Lords, I have scanned through the proceedings of the lower Court and it is true that on 17/5/2012, the name of the 4th Respondent was struck out by the lower Court on the application of 4th Respondent, who was the 3rd Defendant before the lower Court.

I therefore, do not see the necessity for the lengthy submissions by the learned counsel for the 4th Respondent in this appeal merely to make this, though salient, but uncontested issue. The 4th Respondent is not a necessary party to this appeal, it was also not a necessary party to the proceedings before the lower Court. The 4th Respondent’s preliminary objection is therefore, an open and shut case without any disputation. In the circumstances therefore, the preliminary objection of the 4th Respondent, in so far as it relates to it alone, has merit and it is hereby upheld.

Consequently, the name of the 4th Respondent is hereby struck out from the Record of this Appeal. See Green V. Green (1987) 3 NWLR (Pt. 61) 480. See also Emecheta V. Sowemimo & Ors (2018) LPELR – 50399 (CA) per Sir Biobele Abraham Georgewill JCA.

ISSUE THREE APPELLANT’S COUNSEL SUBMISSIONS On issue three, learned counsel for the Appellant had submitted inter alia that in law for a Court to exercise jurisdiction, it must be statutorily empowered and properly constituted as it relates to its membership and the parties before it and upon the fulfilment of all condition precedent to the assumption of jurisdiction, including the service of the originating and other processes on the parties and contended that the service of Court processes, including hearing notice on a party is sine quo none to the exercise of jurisdiction by the Court and therefore, where there is failure to serve either the originating processes and or hearing notices on a party, such proceedings amount to a nullity and urged the Court to hold that the Appellant was not served with any of either the originating processes and or any hearing notice as required by law and she was therefore not aware of the entire proceedings against her and thus, neither held any defence nor defended herself against the claims of the 1st and 2nd Respondents and thereby rendered the entire proceedings and judgment of the lower Court a nullity and liable to be set aside and to allow the appeal, and set aside the judgment of the lower Court for being a nullity and having been reached without the requisite jurisdiction.

Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on National Bank of Nig. Ltd. V. Shoyoye (1977) 5 SC 181, Aremo II V. Adekanye & Ors (2004) 11 MJSC 11 AT P. 24, Unity Bank Plc V. Onwudiwe and Anor (2015) LPELR – 24907 (CA), BCC Ltd. V. Imani & Sons Ltd/Shell Trustees Ltd (2007) All FWLR (Pt. 348) 806 AT p. 815, Ogolo V. Ogolo (2006) 12 NWLR (Pt. 629) 21.

It was also submitted that in law a Writ of Summons or any other originating process must be properly served on the Defendant since without such service, the Defendant may not know that he has been sued and may also not know the claims against him and thus in law the object of the service is therefore to give notice to the Defendant of the claims against him so that he may be aware of and be able to resist, if he desire to, that which is claimed against him and contended that where therefore, service of process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity and urged the Court to hold that the Appellant having not been served with either the originating processes or any other processes and or hearing notices is entitled to have the judgment of the lower Court entered against her in such circumstances set aside for being a nullity and to allow the appeal and set aside the judgment of the lower Court for being a nullity having been reached without jurisdiction.

Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Guda V. Kitta (1999) 12 NWLR (Pl. 629) 21, Madukolu V. Nkemdilim (2006) 2LC 208 AT pp. 218 – 219, Asuquo V. Eshiet (2008) All FWLR (Pt. 401) 970 AT p. 983, Menekenon V.

Tekam (2001) 9 MJSC 114 AT p. 125. 1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS On his issue three, learned counsel for the 1st and 2nd Respondents had submitted inter alia that in law that where a party to a Suit was served with Court Processes, including Hearing Notices but he chose to be indolent and absented himself from the trial, such a party has himself to blame as the Court cannot open the door which he personally shot against himself and contended that the position of the law is so sacrosanct that even where a party appears once but fails to appear at subsequent times and no further blearing notice was served such a litigant is indolent and therefore cannot be aided by the Court and urged the Court to hold that all the originating processes and hearing notices were served on her and she was aware of the proceedings at the lower Court but only choose to ignore the proceedings and therefore, have no basis for any complaint in this appeal as the Appellant was not diligent in the defense of the Suit having been duly served with the originating processes and the hearing notices, and to dismiss the appeal and to affirm the judgment of the lower Court.

Counsel relied Air France V. Gregory Okwudiafor (2012) All FWLR (Pt. 639) 1156 AT pp. 1172 – 1173, Attorney – General, Rivers State V. Ude (2007) All FWLR (Pt. 347) 598 AT pp. 613 – 614.

It was also submitted that the Appellant was duly served by substituted service to by pasting at her place of work and which in law is sufficient and good service as there is no requirement the Appellant must be served at her place of residence and contended that the fact that the 1st and 2nd Respondents knew the place of residence of the Appellant was immaterial to the requirement of proper service once she was duly served by substituted service at her place of work and urged the Court to hold that the Appellant having been duly served with both the originating processes as well as all other processes and hearing notice, the appeal lacks merit and should be dismissed and the judgment of the lower Court should be affirmed. 3RD AND 5TH RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 3rd and 5th Respondents had submitted inter alia that the Appellant admitted that the originating processes were served on her by substituted means by pasting the processes in the Court premises upon the representation that an unsuccessful attempt had been made to serve her the processes in her office and contended that in law the Appellant’s assertion that she was not aware of the Suit because service of the originating processes was effected on her by substituted means by pasting the processes in the Court premises is untenable and cannot avail her and urged the Court to hold that the Appellant was very much aware and instructed her counsel to file a memorandum of appearance and a motion for extension of time to file her defence, and was on the evidence also served with several hearing notices but all to no avail as she choose not to participate in the proceedings until judgment was entered against her and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Ajibola V. Sogeke (2003) 9 NWLR (Pt. 826) 494 AT p. 524. RESOLUTION OF ISSUE THREE My Lords, issue three raises a very crucial as well as fundamental issue in the due administration of justice to wit: the right of parties to be served with originating and all other processes in any proceedings against them and also the sacrosanct right to be served further with hearing notice for the hearing of the matter against them so as to enable them to participate, or of their own volition and choice refuse or neglect to do so in the proceedings against them in a Court of law.

This is the minimum requirement of the law as to the exercise of the right to fair hearing of a party in any proceedings before the Court, failing which any such proceedings as well as the resultant decision and or judgment would be rendered a nullity in law and thereby liable to be set aside.

See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), by which it is provided as follows: “In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to ensure its independence and impartiality.” See High Chief Raymond Dokpesi V. Alhaji Lai Mohammed & Ors (2022) LPELR – 58195 (CA) per Sir Biobele Abraham Georgcwill JCA.

See also Traxys Euro SA V. Ali & Ors (2022) LPELR – 57434 (CA) per Sir Biobele Abraham Georgcwill JCA, Air France V. Gregory Okwudiafor (2012) All FWLR (Pt. 639) 1156 AT Pp. 1172 – 1173, Attorney-General, Rivers State V. Ude (2007) All FWLR (Pt. 347) 598 AT pp. 613 – 614.

Now, the parties are ad idem, and there is an avalanche of evidence in the Record of Appeal to the effect, that the Appellant was served with the Originating Processes by means of substituted service pursuant to the leave of the lower Court and that in response thereto, the Appellant had caused her counsel to filed on her behalf a Memorandum of Appearance as well as a Motion on Notice on 20/2/2007 for extension of time to file her Statement of Defence to the claims of the 1st and 2nd Respondents. See pages 78 – 80 and 84 – 89 of the Records of Appeal.

The only contention appears to be that the Appellant was served by means of substituted service not at her place of residence, which was known to the 1st and 2nd Respondents but rather by pasting at the Court premises after an unsuccessful attempt at serving the processes at her office. I do not think this contention holds any weight or merit in law. Once a party has been duly served by substituted service as ordered by a Court of law, by whatever means and or at whatever place so ordered, it is in law deemed as sufficient and good service.

The essence of service of Court process is simply to bring the pendency of the proceedings to the knowledge and awareness of the party. There is no requirement in law, as far I know, that the Appellant or any party for that matter to proceedings pending in Court, must be served with Court processes at her place of Residence, as erroneously thought but so vehemently contended by the Appellant in this appeal.

So, if truly as the Appellant claimed she was not aware of the 1st and 2nd Respondents’ Suit because it was only served on her by means of substituted service, which at any rate is deemed as good and sufficient service in law, how come she filed her processes in answer to the 1st and 2nd Respondents’ Suit after the substituted service on her? I think the Appellant was not truthful in this her contention.

I cannot therefore but agree with the unassailable submissions of counsel for the 1st and 2nd Respondents as well as counsel for the 3rd and 5th Respondents that the Appellant’s contention of lack of service of originating processes on her itself lacks merit and should be discountenanced. It is hereby so discountenanced and I hold firmly that the Appellant was duly served with the Writ of Summons and all other processes in the 1st and 2nd Respondents’ Suit as required by law by mean of substituted service. See Ajibola V. Sogeke (2003) 9 NWLR (Pt. 826) 494 AT p. 524.

Having found as fact and held firmly that the Appellant was duly served with the Writ of Summons and all other processes in the 1st and 2nd Respondents’ Suit as required, by law, the next most crucial question is whether or not the Appellant was served with Hearing Notices as also required by law for the hearing and eventual determination of the 1st and 2nd Respondents’ Suit against the Appellant by the lower Court? In law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case.

Happily, there is no dearth of decided cases on this very important aspect of our law but rather there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary. The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the Suit or appeal or matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken.

See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended. See also Ama Real Estate Ltd. V. Heritage Bank Plc (2022) LPELR – 57046 (CA) per Sir Biobele Abraham Georgewill JCA. Now, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Folorunso V.

Shaloub (1994) 3 NWLR (Pt. 333) 413 AT p. 430, Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 AT p. 1320. Thus, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order and issue hearing notice. However, where ignorance of a sitting date is self-induced, it is my view that such a party in default is not entitled to a hearing notice. See Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354.

So, why is hearing notice so important in the adjudication processes in the Courts? It is worth pointing out that the importance of service hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served.

The position of the law is that a failure to issue and serve hearing notice, in circumstances in which issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which renders the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Baba V. Atunbi (supra) AT Pp. 366 – 368, Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 AT P.252, Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411, Scott-Emuakpor V. Ukavbe (1975) 12 SC 41, SPDC Nig.

Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420, Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104. However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases.

Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V.

Pinheiro (2001) FWLR (Pt. 48) 1307) AT Pp. 1318 -1320, Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143, Ajaokuta Steel Co Nig Ltd V. Biosali & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145, Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488. It follows therefore, that since all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices from day to day.

This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 AT p. 177. Thus, it is the duty of the Court, and certainly not that of either of the parties in a pending litigation, to confirm that there is proper service of the Court processes, including hearing notice whenever it is necessary to be served, on the other party who may be affected by the outcome of a proceeding before the Court.

So, as it does often happen in the Courts, where a party was neither in Court nor was represented by a counsel, it is in the interest of justice that the Court should ensure that hearing notice is duly issued and properly served on such a party in relation to the next adjourned date for the cause or matter. See FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 AT p. 309. The above is so because in law non-service of hearing Notice on a party, where service of hearing notice is required by law and necessary, would rob the Court of its jurisdiction to hear and determine a cause or matter.

Thus, any order made by a Court against a party in the absence of service of hearing notice on a party, who is entitled to service of hearing notice, is null and void. The failure to serve hearing notice, where it ought to be served on a party to a pending proceedings, goes to the root of the jurisdiction of the Court. See Section 36 of the Constitution of Nigeria 1999 (as amended). See also Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 AT pp. 126 – 127, ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 AT p. 326.

My Lords, the law is and has always been that a failure by a Court to observe the right to fair hearing of a party in the litigation process vitiates both the proceedings and judgment of the Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack of or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were or even how sound the judgment was on the merit. Once, the right to fair hearing is breached, all the proceedings and or judgment or decisions are all a nullity.

But, the issue of lair hearing must at all limes, in any proceedings in which it is raised, be raised with all seriousness and bone fide and not mala fide or merely intended to raise a storm in a teacup without any real factual basis. See Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509 AT p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (PT. 165) 33 AT p. 40, Adebesin V. The State (2014) 9 NWLR (pt. 1413) 609 AT pp. 641 – 642.

My Lords, I have taken time to scan through the entirety of the Record of Appeal in view of the crucial importance of service of hearing notice in the due administration of justice in this Country, and I find that there is avalanche of evidence that Hearing Notices were duly issued by the lower Court for service on the Appellant and further that these Hearing Notices were duly served on the Appellant through her counsel, having filed a Memorandum of Appearance on her behalf before the lower Court.

See pages 68, 68, 84 – 89, 102, 157B, 163B, 164, 165, 169, 170, 170B, 171, 171B, 172, 173, 176, 176B, 180 and 181 of the Additional Record of Appeal. See also pages 387 – 390, 392, 394, 398, 402 – 403, 405, 412 – 414 of the Record of Appeal. Thus, it is clear that the Appellant was duly served with both the Originating Processes and Hearing Notices at various limes but she choose to ignore the proceedings before the lower Court until judgment was entered against her on the uncontested and unchallenged sole evidence of the 1st and 2nd Respondents.

In the circumstances, the law will neither aid nor come to the rescue of the indolent, or the careless, or the reckless and or the negligent in the prosecution or defence of their cases before a Court of law. Such a party, such as the Appellant, would in law have only herself to blame for the calamity of the judgment that eventually befell her.

The lower Court was therefore perfectly right when in its judgment it stated inter alia thus: “The Appellant failed and or neglected to file a defence to this suit even though she had been duly served with the originating process.” See page 429 of the Record of Appeal.” In the light of all I have stated and found as above, issue three is hereby resolved against the Appellant in favour of the 1st and 2nd Respondents as well as the 3rd and 5th Respondents.

ISSUES ONE AND TWO (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it found that the Appellant sold her letter of allocation in respect of the property in dispute and thereby enabled the 1st and 2nd Respondents to step into her shoes and contended that this finding by the lower Court violated the provisions of the Letter of Allocation, Exhibit PW 1A in that the property in dispute is a mortgaged property and in law the 1st and 2nd Respondents cannot acquire any title to the mortgaged property without the consent of the Mortgagee first sought and obtained since in law the consent of the mortgagee is a condition precedent to the assignment of a mortgaged property and urged the Court to hold that in the absence of the requisite consent of the Mortgagee the title in the mortgaged property in dispute resided in the mortgagee and therefore, the purported sale to the 1st and 2nd Respondents of the mortgaged property by the Appellant was null and void and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st and 2nd Respondents for lacking in merit.

Counsel referred to the Book: “Practical Approach to Law of Real Property in Nigeria” by Prof. L.O. Smith, 2nd Edition AT p. 353, and relied on N. J. Ekaeteh V. Nigerian Housing Development Society Ltd & Anor (1973) All NLR 555, Marouf Adeleye Kasunmu V. J. M. Scott & Ors (1967) AH NLR 243, Barclays Bank DCO V. Olofintuyi & Anor (1961) All NLR 828.

On issue two, learned counsel for the Appellant had submitted inter alia that without the requisite consent of the Mortgagee the purported sale of the Mortgaged property is a nullity since the law is ‘ex nihilo nihil fit’ one cannot place something on nothing and expect it to stand and contended that in law prior consent of the Mortgagee is a condition precedent for the sale of a Mortgaged property by the Mortgagor and thus, any failure to do so renders such a sale a nullity and urged the Court to hold that without the consent of the 4th Respondent the Appellant cannot give out any title to the said Mortgaged property, which she had given out to the 4th Respondent and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st and 2nd Respondents for being a nullity.

Counsel relied on Madukolu & Ors V.

Nkenidilim (2006) 2 LC 208 AT pp. 218 – 219. 1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 1st and 2nd Respondents had submitted inter alia that from the unchallenged evidence before the lower Court the sale of the property to the 1st and 2nd Respondents by the Appellant without the consent of the Mortgagee, the 4th Respondent was not illegal as the peculiar facts reveal that the Appellant, the Mortgagor intended the 1st and 2nd Respondents to pay off her outstanding indebtedness to the Mortgagee and which the 1st and 2nd Respondents were doing until the unlawful action of the Appellant by unilaterally repudiating the sale after receiving full payment and Agreements signed and contended that Exhibit PWJ1 – 3 did not in any way forbid the Appellant from selling the said property as she would only lose her title if she was unable to service National 1 lousing Fund loan facility advanced to her in three consecutive months or defaulted in making the principal and interest repayment for six months within any year and urged the Court to hold that nothing short of these failures would make the Appellant lose her title to the said properly and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Janies Goloto & Another V. The Registered Trustees of Deeper Life Ministry & Another (2012) All FWLR (Pt. 647) 726 AT pp. 770 – 741.

On his issue two, learned counsel for the 1st and 2nd Respondents had submitted inter alia that in its adjudicatory function, the Courts have a duty to prevent injustice in any given scenario and avoid rendering a decision which enables a party escape from his or her obligation under a contract by his or her own willful wrongful act or otherwise profit from such a willful wrongful act and contended that to uphold the Appellant’s case that the failure to obtain the consent of the Mortgagee rendered the transaction null and void, especially when such a defense was not coming from the Mortgagee, will definitely amount to an injustice as the Appellant who willfully entered into a contract to sell her property and which was witnessed by her own husband will benefit from her own wrong and urged the Court to hold that the law will not support its use as an engine of fraud and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35, Bulet International (Nig) Ltd & Anor V. Olaniyi & Anor (2017) LPELR – 42475 (SC), Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212, Heco Foam Industries Nigeria Ltd V. Chellarams Plc (2018) All FWLR (Pt. 918) 172 AT p. 187, Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868 AT p. 1885, Okechukwu V.

Onuorah (2000) LPELR – 2431 (SC). 3RD AND 5TH RESPONDENTS’ COUNSEL SUBMISSIONS My Lords, none of the Defendants before the lower Court, including the Appellant and the 3rd and 5th Respondent, called any witness at the trial of the 1st and 2nd Respondents’ Suit. The 3rd and 5th Respondents who filed their Statement of Defence did not however, call any witness to give any evidence in support of and proof of their pleadings. In law, the averments in their pleadings are therefore, deemed abandoned and would thus go to no issue in the determination of the ease.

It follows in my view therefore, all the avalanche of submissions by the 3rd and 5th Respondents on the facts, in the absence of any evidence from them, should not really be of any serious moment in this appeal.

I shall therefore, review albeit briefly the submissions of the 3rd and 5th Respondents in their brief in this appeal, and I proceed to do so anon! ​ On his issue two, learned counsel for the 3rd and 5th Respondents had submitted inter alia that the lower Court was right to have held that the Appellant had sold or transferred her interest in the property to the 1st and 2nd Respondents and contended that in law it is not correct to contend as was done by the Appellant that a Mortgagor cannot validly divest his interest in a mortgaged property without the consent of the Mortgagee who has the legal title in the property in that firstly, the Appellant has no locus to make the complaint of lack of consent not being the Mortgagee, and secondly there is nothing in law that prevents a Mortgagor from alienating his interest provided it is subject to the Mortgage even though the Mortgagor may not be part of the transaction and urged the Court to hold that the lower Court was right when it validated the sale of the Mortgage property to the 1st and 2nd Respondents by the Appellant, a Mortgagor and for which there is no complaint of lack of consent by the 4th Respondent, the Mortgagee and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 AT pp 542 – 543, Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181, Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt. 798) 1 AT pp. 34 – 35, UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647, Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86.

RESOLUTION OF ISSUES ONE AND TWO My Lords, issues one and two deal with the merit or otherwise of the claims of the 1st and 2nd Respondents as Claimants against the Appellant and the 3rd and 5th Respondents as Defendant before the lower Court, the 4th Respondent’s name having been struck out by the lower Court.

In brief, and in the absence of any evidence from the Appellant, the case of the 1st and 2nd Respondents, which had remained unchallenged and undefended, was inter alia that the Appellant was the allottee of Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja, the property in dispute, vide a Letter of Allocation issued in her favour by the 3rd Respondent.

However, following the Appellant’s agreement to sell her allocation letter to the 1st and 2nd Respondents for valuable consideration to enable her offset the mortgage she took from the 4th Respondent, the Appellant handed over all the particulars of the property to the 1st and 2nd Respondents and the 2nd Respondent thereafter paid to her the sum of N700, 000.00 as consideration for selling off her interest in the property.

Curiously, rather than hand over possession of the said property to the 1st and 2nd Respondents, the Appellant later notified the 1st and 2nd Respondents that she had taken possession of the property and had rented it out to a tenant for a term of 2 years, without surrendering it to 1st and 2nd Respondents. ​ At the trial, the 1st and 2nd Respondent called one witness who testified as PW1 and tendered several documents, all of which remained unchallenged, uncontradicted and uncontroverted by the Appellant.

In law, whenever documentary evidence is available, and since they are the best form of evidence due to the lower level of possibility of their manipulations and being earlier in time to the oral evidence, which is capable of manipulations and afterthoughts, they are to be used as hangers on which to assess the veracity of oral evidence. See Sections 128 (1) and 132 (1) of the Evidence Act 2011. See also Salbodi Group Limited & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR-57458(CA) per Sir Biobele Abraham Georgewill JCA, Ezenwa V. KSHSMB (2001) 9 NWLR (Pt. 1251)1, Womiloju V.

Kiki (2009) 16 NWLR (Pt. 1166) 146. Now, neither the Appellant nor the 3rd and 5th Respondents called any witness to give any evidence in rebuttal to the evidence, both oral and documentary led by the sole witness of the 1st and 2nd Respondents. The case of the 1st and 2nd Respondents, as Claimant, as pleaded and supported by evidence therefore remained unchallenged, uncontroverted and uncontradicted by any or all of the Appellant and the 3rd and 5th Respondents, as Defendants before the lower Court.

In law, such evidence is deem good and can be relied upon by the trial Court to reach appropriate findings of facts as between the parties, and the onus of proof on the 1st and 2nd Respondents was therefore, minimal. See Zakariya V. Mohammed (2022) LPELR – 57505 (CA) per Sir Biobele Abraham Georgewill JCA. See also Olorundare SAN V. Minister of FCT & Ors (2022) LPELR – 58132 (CA) per Sir Biobele Abraham Georgewill JCA.

In law, a mortgage is a legal or equitable conveyance of title as a security for the payment of debt or the discharge of some other obligation for which it is given, subject to a condition that the title shall be re-conveyed if the mortgage debt is liquidated. A mortgage is the conveyance of title as security for the payment of a debt. In other words, the moment a mortgage is created, the mortgagor ceases, albeit temporarily, to be the owner of the mortgage property, until redemption of the mortgaged debt. See Practical Approach to Law of Real Property in Nigeria by Prof. L.O.

Smith, 2nd Edition AT p. 353. The Appellant was not and is not the Mortgagee, whose responsibility it is in law to grant consent to the sale of the mortgaged property should he consider it fit to do so. The Mortgagee was the 4th Respondent and who had whilst before the lower Court had applied to wash its hand off the case and whose application was granted and its name was accordingly struck out by the lower Court.

The 4th Respondent, the Mortgagee, had nothing to insist or press as regards its consent to the sale of the mortgaged property by the Appellant, the Mortgagor, to the 1st and 2nd Respondents. In law, the right to complain is that of the 4th Respondent, at whose benefit the law requires that consent by the Mortgagee is required for the sale or otherwise dealing by the Mortgagor with the Mortgaged property.

It is a party in whose benefit the law or statute makes a provision that should complain about its denial or refusal and not a stranger to the provision and or the benefit such as the Appellant in the instant case. See Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35.

Yet, curiously, it is the Appellant who as Mortgagor ought to seek and obtain the consent of the 4th Respondent, the Mortgagee, and is with the money paid to her by the 1st and 2nd Respondents as consideration for the sale of the letter of allocation to the property in dispute, that is now carrying on the, would have been, battle of the 4th Respondent and crying over the lack of consent to the sale of the letter of allocation to the mortgaged property. This, in my view, is clearly demonstrative of the saying at common parlance of ‘one crying more than the bereaved’.

There is nothing else to appropriately describe the attitude of the Appellant in this case. In law, and I so firmly hold, the Appellant cannot be allowed to keep her cake by keeping the hard-earned money paid to her as consideration by the 1st and 2nd Respondents as in Exhibit PW1F and yet have her cake by keeping her ownership of the said property. The law will never allow itself to be used by the Appellant as an engine to perpetrate and perpetuate fraud against the 1st and 2nd Respondents. Indeed, equity forbids the Appellant to benefit from her own wrong using the law as an engine of fraud.

See Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 (Pt. 798) 1 AT pp. 34 – 35. See also Bulet International (Nig) Ltd & Anor V. Olaniyi & Anor ​ (2017) LPELR – 42475 (SC), Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212, Heco Foam Industries Nigeria Ltd V. Chellarams Plc (2018) All FWLR (Pt. 918) 172 AT p. 187, Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868 AT p. 1885, Okechukwu V. Onuorah (2000) LPELR – 2431 (SC), Union Homes Service & Loans Plc V. Bluewing Travels & Tours (2017) LPELR – 51550 (CA) per Sir Biobele Abraham Georgewill JCA.

My Lords, in law, nothing prevents or hinders the mortgagor from alienating his equity of redemption with or without the consent of the Mortgagee in order to liquidate the mortgagor’s outstanding indebtedness to the mortgagee. A mortgagor may at any time without the mortgagee’s consent make a conveyance of his property subject to the mortgage. Thus, notwithstanding any such conveyance and even if the transferee undertakes personal liability to the mortgage, the mortgagor remains personally liable on the covenant to pay money.

He therefore usually takes an express covenant for indemnity from the transferee but even if he does not, a transferee for value will be under an implied obligation to indemnify him.

EXHIBIT PWJ 1 – 3 AT page 274 of the Records of Appeal. In the instant appeal, nothing in Exhibit PWJ1 – 3, which I had taken time to calmly scrutinize its contents, in any way forbid the Mortgagor, the Appellant from selling and therefore, by the contents of Exhibit PWJ 1 – 3 it does seem to me that the Appellant as the Mortgagor would only lose her title to the property if she was unable to service National Housing Fund loan facility advanced to her in three consecutive months or should she default in making the principal and interest repayment for six months within any year.

The lower Court was in my finding therefore, right when it held that the sale between the Appellant and the 1st and 2nd Respondents was valid. See James Goloto & Anor V. The Registered Trustees of Deeper Life Ministry & Anor (2012) All FWLR (Pt. 647) 726 AT pp. 770 – 741.

Indeed, the Appellant having sold or transferred her interest in the property to the 1st and 2nd Respondents, it cannot be correct in law to contend as was done by the Appellant that a Mortgagor cannot under any circumstances validly divest his interest in a mortgaged property without the consent of the Mortgagee who has the legal title in the property.

This is so because firstly, the Appellant has no right of her own to make or lay the complaint of lack of consent not being the Mortgagee, and secondly, there is nothing in law that prevents a Mortgagor from alienating his interest provided it is subject to the Mortgage even though the Mortgagor may not be part of the transaction. See Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 AT pp 542 – 543, Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181, Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt. 798) 1 AT pp. 34 – 35, UBN Plc V.

Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647, Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86. In M. J Eka – Ette V. Nigerian Housing Development Society Ltd & Anor (1973) All NLR 555, the issue for determination was whether the Mortgaged property was undervalued and consequently undersold, and there was no challenge to the power of the Mortgagee or Mortgagor to sell in that case unlike in the instant case.

The facts in that case, in my humble view, are therefore, clearly distinguishable from the facts of the instant appeal. A sale in the established peculiar circumstances of this appeal ought not to and should not be set aside at the instance of the Appellant. The lower Court, in my view, was right to have validated the said sale so that the Appellant docs not use the law as an engine of fraud. See Barclays Bank Deo V. Olofintuyi & Anor (1961) All NLR 828. See also Marouf Adeleye Kasumu V. J. M. Scott & Ors (1967) All NLR 243.

Thus, in any dealing with the mortgaged property by the mortgagor, the only interest he can part with is his interest in the equity of redemption, as he cannot grant an interest to supersede the equitable rights of the mortgagee over the mortgaged property without first getting rid of the whole amount of his indebtedness to the mortgagee under the mortgage loan, even though the legal estate resides in him, the mortgagor. See UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647.

Most instructively, the right of Mortgagor to sell the Mortgaged property especially for the purpose of liquidating the loan facility, as the Appellant in the instant case did bit is seeking furtively to repudiate it, is lawful and has been so recognized even by the Apex Court. See Akindele V.

Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86, where the Supreme Court, per Abba – Aji, JSC, had stated inter alia thus: “I must be categorical here that any mortgagor that does not want his property to be foreclosed for sale should sell it by himself or liquidate the loan facility.” On the established facts in this case as in the Record of Appeal from the unchallenged evidence of PW1 and the several documentary Exhibits, and on the current state of the law on sale of mortgaged property by a Mortgagor, it seems clear to me, and as rightly found by the lower Court, that the sale of the said property to the 1st and 2nd Respondents by the Appellant without the consent of the Mortgagee, the 4th Respondent was not illegal as the peculiar facts reveal that the Appellant, the Mortgagor had intended the 1st and 2nd Respondents to pay off her outstanding indebtedness to the Mortgagee and which the 1st and 2nd Respondents were doing until the questioned action of the Appellant by unilaterally repudiating the sale after receiving full payment and all necessary agreements voluntarily entered into and duly signed between the parties.

In law, as in equity, the Appellant lacks the power to renege using the concept of consent in Mortgage transaction merely as an engine of fraud in order to benefit from her own wrong. The law will never allow the Appellant to do so unashamedly as she had sought furtively to do in this case. See Mobil Producing (Nig.) Un Ltd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35. See also Union Homes Service & Loans Plc V. Bluewing Travels & Tours (2017) LPELR – 51550 (CA) per Sir Biobele Abraham Georgewill, JCA.

In the light of all I have said above therefore, I hold that the conclusion reached by the lower Court that the sale transaction between the Appellant and the 1st and 2nd Respondents was valid was correct and cannot be disturbed by this Court. This is so because in law once the conclusion reached by a trial Court is correct on the evidence led before it, an appellate Court will not interfere with the correct conclusion of the trial Court. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 AT p. 198, per Edozie JSC. See also Elephant Group Plc V.

National Security Adviser & Anor (2018) LPELR – 45528 (CA) AT pp. 90 – 91, per Sir Biobele Abraham Georgewill JCA. In the light of all I have stated and found above, issues one and two are hereby resolved against the Appellant in favour of the 1st – 2nd Respondents. On the whole, therefore, having resolved all the issues one, two and three for determination against the Appellant in favour of the 1st – 2nd Respondents as well as the 3rd and 5th Respondents, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, it is hereby dismissed.

In the result, the judgment of the High Court of Federal Capital Territory Abuja Division, Coram: O. O. Goodluck J, in Suit No. FCT/11C/CV/4724/2011: Mrs Abe Ethel Ndidi .V. Shammah Global Trades Limited & Ors delivered on 30/4/2019, in which the claims of the 1st – 2nd Respondents as Claimants were granted against the Appellant as Defendant, is hereby affirmed. There shall be cost of N300,000. 00 against the Appellant in favour of the 1st – 2nd Respondents only.

MOHAMMED MUSTAPHA, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my Lord, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed. The decision of the High Court of Federal Capital Territory Abuja Division, delivered by O. O. Goodluck J, in Suit No. FCT/HC/CV/4724/2011 on 30/4/2019 is hereby affirmed. I abide by the consequential orders.

DANLAMI ZAMA SENCHI, J.C.A.: I was privilege to read in draft before now the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with the reasoning and finding in the lead judgment as it has substantially reflected and captured all my views I had expressed during the conference. I therefore entirely adopt as mine the lead judgment of my learned brother, GEORGEWILL, JCA and I have nothing meaningful or useful to add. Hence, the appeal lacks merit and it is dismissed. The judgment of the High Court of the Federal Capital Territory, Abuja in Suit No.

FCT/HC/CV/4724/2011 delivered on 30th April, 2019 by O.O GOODLUCK, J is hereby affirmed. I abide by the order as to cost made in the lead judgment as mine.

Judgment

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018. The Respondent commenced the action in the lower Court by a motion brought pursuant to provisions of the Fundamental Right (Enforcement Procedure) Rules 2009.

The Respondent sought for the enforcement of his fundamental right to dignity of human person, right to personal liberty, right to freedom of movement and right to freedom of expression as guaranteed, according to him, under Sections 34, 35, 39, 41, 44 and 46 of Constitution of the Federal Republic of Nigeria 1999 (as amended), an order of injunction to restrain further breach of his fundamental rights, public apology to be published in two widely read newspapers and the sum of N20 Million as damages. ​The case of the Respondent on the processes filed was that he is an Alkali and had served in various Sharia Courts in Jigawa State and was also an Islamic scholar and preacher in his village, Doko, and in other neighbouring villages in Garki Local Government Area of Jigawa State.

It was his case that on the 28th of September, 2018 while transiting to his farm on a commercial motorcycle, he was stopped by the fourth to the sixth Appellants who were on duty on the Kano/Gumel highway and he and the motorcyclist were asked to dismount for a search to be conducted.

It was his case that they dismounted and that the officers insisted on searching him even after he identified himself as an Alkali and showed them his identification card, and that at the end of the search, nothing incriminating was found on them. ​It was his case that after concluding the search and finding nothing incriminating, the officers still did not allow him to go and that when he insisted on being allowed to go, the officers started abusing him, calling him all sorts of names, and this attracted passer-by who were mainly people from his village and the neighbouring villages where he preached.

It was his case that he reacted to the abuses by telling the officers that their actions were useless acts and whereupon the officers started beating him to the point of unconsciousness, and in the course of which he sustained an injury to his lip and that he was arrested by them, leg-cuffed and detained in the back of their Toyota Hilux vehicle. It was his case that he remained in that position in the scorching sun in the full glare of his village people for more than three hours before people came to plead with the officers to release him.

It was his case that he lost his self-esteem and dignity and that the actions of the officers infringed his fundamental rights. ​The Appellants filed a joint counter-affidavit and they denied the case of the Respondent and it was their case that the fourth to the sixth, while on a lawful routine patrol on the highway, Gumel/Kano highway, on the 21st of September, 2018, flagged down a motorcycle conveying three people.

It was their case that the motorcycle stopped and the rider submitted for a search and was searched, but that the Respondent who was the second passenger on the motorcycle refused to submit to a search. It was their case that they conceded to the Respondent to search himself by bringing out everything in his pocket and that after doing so very reluctantly, and nothing incriminating was found on him, they asked the Respondent to step aside to enable them conduct a search on the third passenger.

It was their case that rather than step aside, the Respondent started abusing the officers and created a scene which attracted other persons and in the course of which they were prevented from searching the third passenger on the motorcycle who escaped from the scene of the search. It was their case that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

It was their case that the Respondent resisted the arrest and that in course of the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that they did not beat the Respondent and that the Respondent was conscious the whole time.

It was their case that the Respondent did not at anytime introduce himself as an Alkali. ​It was their case that when they succeeded in arresting the Respondent, they leg-cuffed him to restrain him from running away with the intent of taking him to their office in Hadeija. It was their case that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent.

It was their case that the Respondent then instigated the youths of the area and who gathered at the scene and threatened to burn the vehicle of the first Appellant and kill the three officers and the officers had to quickly leave the area. It was their case that on their way from the scene of the incident, they were accosted by policemen from the Nigerian Police Force, Garki Station Jigawa State and that they narrated to the policemen all that transpired.

It was their case that it was the Respondent that degraded and inhumanly treated the fourth to the sixth Appellants with his utterances. ​Counsel to the parties filed written addresses in support of the respective cases of the parties and the lower Court heard the matter on the merits and it entered judgment granting all the claims of the Respondent, but awarding him N5 Million as damages, instead of the N20 Million claimed.

The lower Court found in the judgment that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless, and it proceeded from the finding to hold that the Appellants breached the fundamental rights of the Respondent. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 14th of December, 2018 and containing seven grounds of appeal against it.

In arguing the appeal, Counsel to the Appellants presented a brief of arguments dated and filed on the 17th of May, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 22nd of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 20th of February, 2020 on the 21st of February, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments. ​Counsel to the Appellants distilled three issues for determination in the appeal and these were: i.

Whether having regards to the affidavit evidence and issues canvassed before the lower Court, the lower Court made a proper evaluation of the evidence before coming to the conclusions reached by the Court. ii. Whether the award of N5 Million damages against the Appellant as well as an order of public apology were not arbitrary as they did not follow the principles for award of damages and public apology in cases of this nature. iii. Whether the judgment of the lower Court was not perverse and therefore occasioned a miscarriage of justice.

In arguing the first issue for determination, Counsel to the Appellants referred to the case of Mbonu Vs Nwoti (1991) 7 NWLR (Pt 206) 737 in reiterating that it was the duty of a trial Court to properly evaluate the evidence contained in the depositions in the affidavits filed by the parties in making its findings and stated the trial Court failed to properly do so in the present case.

Counsel stated that in response to the allegation of the Respondent that the fourth to the sixth Appellants pounced on him and beat him, the Appellants stated in paragraph 5(q) of the counter affidavit very clearly that the fourth to the sixth Appellants did not beat the Respondent. Counsel stated that the finding of the lower Court that the Appellants did not deny pouncing on the Respondent was grossly erroneous in law and was a complete misapprehension of the facts placed before the lower Court.

Counsel stated that there was conflict in the affidavit evidence of the parties on whether or not the Respondent was assaulted by the fourth to the sixth Appellants and that instead of calling for oral evidence to resolve the conflict, the lower Court did so suo motu and that this was wrongful and he referred to the case of Asonye Vs Registered Trustees of CAN (1995) 2 NWLR (Pt 379) 623 and Boothia Maritime Inc Vs Far East Mercantile Company Ltd (2001) FWLR (Pt 50) 1713. ​Counsel stated that the failure to call for oral evidence to resolve the apparent conflict in the affidavit evidence of the parties led the lower Court to make perverse finding which occasioned a miscarriage of justice and that this Court is empowered to interfere with the evaluation of evidence carried out by the lower Court in such a situation and he referred to the cases of Obajimi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1 and Dumez Nigeria Limited Vs Nwakhoda (2008) 18 NWLR 36.

Counsel stated that not only was the decision not borne out by the evidence put forward by the parties, it was obvious that the lower Court acted on irrelevant factors by reason of the sentiments it expressed in the statements it made concerning the status of the Respondent in the award of damages.

Counsel stated that it is settled law that a decision reached on irrelevant factors and considerations cannot be allowed to stand and that the appellate Court is empowered to reevaluate the evidence in such circumstances and he referred to the cases of Ojeleye Vs Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2009) 15 NWLR 520, Ushae Vs Commissioner of Police (2005) 2 NWLR (Pt 937) 499 and Macaulay Vs NAL Merchant Bank Ltd (1990) 6 SCNJ 117.

Counsel urged the lower Court to resolve the first issue for determination in favour of the Appellants. ​On the second issue for determination, Counsel stated that the lower Court did not follow the laid down principles of award of damages in cases of this nature and that the award of exemplary damages is made cautiously and based on established principles and not on the whims and sentiments of the adjudicator and that the Respondent did not place sufficient materials before the lower Court to support the claim for damages and he referred to the cases of Attah Vs Inspector General of Police (2015) All FWLR (Pt 805) 108 and Onagoruwa Vs Inspector General of Police (1991) 5 NWLR (Pt 193) 621.

Counsel stated that the lower Court did not give any legal basis or reasoning for the award of N5 Million as damages and said that it was doing ‘just to show sympathy and mitigate his medical and other expenses’ and that this amounted to speculation which a Court is not allowed to do and he referred to the case of Ushae Vs Commissioner of Police supra. ​Counsel went on a voyage of restating the principles governing the award of aggravated and exemplary damages and he cited case law authorities thereon.

Counsel noted the instances when an appellate Court will interfere with an award of damages by a trial Court and stated that this one of such instances as the N5 Million awarded by the lower Court was very high and excessive in the circumstances of this case. Counsel stated that lower Court awarded the damages to the Respondent ‘just to show sympathy and mitigate his medical and other expenses’, but that the Respondent did not depose that he incurred medical expenses or other expenses and did not put before the Court anything he lost.

Counsel stated that this Court is empowered in the circumstances of this case to either set aside the award of damages or to re-assess the sum of N5 Million awarded and he referred to the cases of Adim Vs Nigeria Bottling Company Ltd (2010) All FWLR (Pt 527) 690 and Attah Vs Inspector General of Police supra. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.

On the third issue for determination, Counsel stated that where the decision of a trial is perverse and has occasioned a miscarriage of justice, this Court should interfere and he referred to the cases of Njoku Vs The Registered Trustees of Congregation of Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 139, Uwah Vs Akpabio (2014) LPELR-22311(SC). Counsel stated that all the attributes of a perverse decision are present in the judgment of the lower Court and this Court should thus interfere with the decision.

Counsel urged the Court to resolve the issue for determination also in favour of the Appellants. Counsel concluded his submissions by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court. Counsel to the Respondent adopted the three issues for determination as formulated by Counsel to the Appellants.

In arguing the first issue for determination, Counsel stated that it is the duty of the trial Court to make findings based on the evidence adduced by the parties and to arrive at a decision granting or dismissing the reliefs sought and that it is only where a trial Court fails to evaluate or improperly evaluates the evidence led that an appellate can intervene and reevaluate the evidence, but not otherwise and he referred to the cases of Sabo Vs Abdul Kadir (2016) All FWLR (Pt 992) 178, Olofin Vs Rasaki (2016) All FWLR (Pt 830) 1281 and Insurance Brokers of Nigeria Vs A. T. M.

Co Ltd (1996) 8 NWLR (Pt 466) 316.

Counsel stated that for improper evaluation or non-evaluation of evidence to have effect on the case of a party, the party alleging same must identify and specify the evidence not evaluated and show that it occasioned a miscarriage of justice and he referred to the cases of Mafulul Vs Takwen (2018) LPELR-45635(CA) and Adeye Vs Adesanya (2001) LPELR-166(SC). ​Counsel stated that this case was conducted on affidavit evidence and that the complaint of the Appellants in this appeal was that the lower Court failed to make proper use of the depositions in counter affidavit in finding that the Appellants did not deny the contents of paragraph 18 of the affidavit in support where it was alleged that the fourth to the sixth Appellants pounced on the Respondent and beat him up and injured him in the mouth.

Counsel noted that in paragraph 5(a) of the counter affidavit wherein the Appellants listed the paragraphs of the affidavit they were denying, paragraph 18 was not mentioned and he referred to paragraph 5(q) thereof wherein the Appellants deposed that they did not beat the Respondent and explained how the Respondent sustained the injury to the lip while he was resisting arrest. Counsel stated that it was obvious from the counter affidavit that paragraph 5(q) was an afterthought and did not constitute a denial of paragraph 18 of the affidavit in support.

Counsel thereafter referred and reproduced portions of the deliberations of the lower Court in the judgment and stated that it was obvious that the lower Court exhaustively appraised the evidence proffered by the parties, attached appropriate probative value to them before making its findings and entering judgment.

Counsel stated that the evaluation of evidence carried out by the lower Court cannot be said to have occasioned a miscarriage of justice to the Appellants and this is because the humiliation and maltreatment meted out to the Respondent amounted to a clear breach of his fundamental rights guaranteed in Section 34 of the Constitution and he referred to the case of Nigeria Customs Service Board Vs Mohammed (2015) LPELR-25938(CA). ​Counsel stated that, contrary to the submissions of Counsel to the Appellants, it is not in every situation where there is a conflict in affidavit evidence that the Court calls for oral evidence and that the Court can use documentary evidence to resolve such conflicts and he referred to the cases Collins Commermex Nigeria Ltd Vs Skye Bank Plc (2019) LPELR-46892(CA), Jev Vs Iyortyom (2014) All FWLR (Pt 747) 749 and APC Vs Agoda (2019) LPELR-47174(CA).

Counsel stated that the seeming conflict in the affidavit evidence of the parties was on whether the fourth to the sixth Appellants beat up the Respondent, injured him and leg-cuffed him and that while the Respondent said they did, the Appellants maintained that they did not. Counsel stated that the Respondent attached photographs of himself with an injured lip and in leg-cuffs and the lower Court was right when it used the photographs to resolve the conflict.

Counsel urged the Court to resolve the first issue for determination in favour of the Respondent and stated further that, should it find there was indeed an improper evaluation of evidence which prejudiced the Appellants, the Court should reevaluate the affidavit evidence of the parties and come to an appropriate decision and he referred to the case of Okomalu Vs Akinbode (2006) LPELR-2470(SC). ​In arguing the second issue for determination, Counsel noted that Counsel to the Appellants expended so much energy on what the Respondent had to prove to be awarded exemplary and aggravated damages and stated that the Respondent did not claim for exemplary and aggravated damages, but simply for general damages for breach of his fundamental rights.

Counsel stated that the lower Court awarded the sum of N5 Million as compensation to the Respondent for the breach of his fundamental rights and that there is a world of difference between a claim for exemplary and aggravated damages and one for general damages and he referred to the case of Aice Investment Company Ltd Vs Fidelity Bank Plc (2015) LPELR-25753(CA).

Counsel stated that the award of damages for breach of fundamental rights is automatic by virtue of the provisions of Section 36(6) of the 1999 Constitution and he referred to the case Jim-Jaja Vs C.O.P., Rivers State (2013) All FWLR (Pt 665) 203. Counsel stated that the award of compensation under the fundamental rights proceedings, which is sui generis in nature, is not knotted by the shackles of common law principles and he referred to the cases of William Vs Usen (2018) LPELR-46163(CA), Ukpai Vs Omoregie (2019) LPELR-47206(CA) and Yahaya Vs NPF, Plateau State Command (2018) LPELR-46045(CA).

Counsel conceded that this Court possesses the power to tamper with and reassess damages awarded by the trial Court where the quantum is manifestly too high or manifestly too low or where it was granted on based on wrong principles of law, but stated that in determining whether a trial Court made a proper assessment in the award of damages in a fundamental rights proceedings, this Court must be guided by some factors including the frequency of the type of violation in recent times, the depreciating value of the Naira, the motivation for the violation, the status of the applicant and nature of undue embarrassment meted to the applicant and he referred to the cases of Attah Vs IGP (2015) LPELR-24656(CA) and NPF Vs Omotosho (2018) LPELR-45778(CA), amongst others. ​Counsel stated that a read through the deliberations of the lower Court on the award of damages shows that some of these factors weighed on the mind of the lower Court in making the award of N5 Million as compensation to the Respondent and that there was no basis for this Court’s interference with the award.

Counsel urged the Court to resolve the second issue for determination in favour of the Respondent. On the third issue for determination, Counsel conceded that where the decision of a lower Court is perverse, an appellate Court can intervene to set it aside, but stated that it is not enough for a party to say that a judgment of the lower Court, which enjoys a presumption of irregularity by virtue of Section 168 of the Evidence Act, is perverse, the party show how it is so and he referred to the case of Amadi Vs Attorney-General, Imo State (2017) LPELR-42031(SC).

Counsel referred to the cases of Udengwu Vs Uzuegbu (2003) LPELR (Pt 3293(SC) and Zock Vs Bawa (2017) LPELR-43227(CA) in asserting the derelictions a trial Court must commit for its decision to be perverse and stated that the Appellants woefully failed to show that the lower Court was guilty of any of the derelictions in coming to its decision. Counsel thus urged the Court to resolve the third issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same accordingly and to affirm the judgment of the lower Court. ​Reading through the processes of the parties in the lower Court, the judgment of the lower Court, the notice of appeal and the entire arguments in the briefs of arguments of the parties, all the issues canvassed in this appeal can be subsumed under two issues for determination. These are: i.

Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants. ii. In the case of issue (i) being in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case.

The two issues for determination adequately capture the grievances of the Appellants in this appeal and the appeal will be resolved on the two issues for determination and this will be done seriatim.

Issue One Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants ​Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people.

In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary.

Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.

The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990.

The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights.

The Respondent predicated his application before the lower Court on his rights to dignity of the human person, to personal liberty, to freedom of movement and to freedom of expression which, he said, are guaranteed by the provisions of Sections 34, 35 and 39 respectively of the 1999 Constitution. ​The lower Court found that, on the affidavit evidence led by the parties, the Respondent made out a credible case to sustain his claim.

In deliberating on the claims of the Respondent, the lower Court, after summarizing the respective cases of the parties, stated thus: “… In the main paragraphs, i.e. paragraph 5(a) to 5(w) the respondents denied most of the averments in the affidavit in support more especially by paragraph 5(a) when they denied paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 of the affidavit in support. However, the Respondents are not denying paragraph 18 of the affidavit in support. This means that they admitted pouncing on him having heard him utter the word ‘useless’.

They also admitted beating the Applicant as well as jacking his gown and punching him on his mouth. The Respondents, i.e. 4th, 5th and 6th Respondents, by paragraph 5(h) admitted that when the Applicant was finally searched, nothing incriminating was found with him in any of his pockets. The three Respondents in the field work emphasized that the sin of the Applicant was that he uttered the word ‘useless’ to them. They also claimed that the Applicant did not introduce himself as an Alkali Judge in the area.

Whether the behavior of the 4th, 5th and 6th Respondents on the 21st day of September, 2018 at Doko Village in Garki Local Government Area of Jigawa State was justifiable in the circumstances of this case?

The Respondents claimed that the Applicant refused to be searched and/or allowed the 3rd man on the motorcycle to escape their search. That he did not introduce himself, etc. All these things are reasonable ground to have pounced on a man who happened to be at their checkpoint unarmed and/or has not used violence on them? I think the answer to the above is that officers have used excessive force over an armless person. To me, the behavior amounts to a violation of the fundamental rights of the Applicant having regard to the fact that they are public officers entrusted to carry arms on duty.

Calling them useless is not enough to have lost their temper and pounced on an innocent man who posed no danger to their lives. This kind of behavior by the 4th, 5th and 6th Respondents under the command of the 2nd and 3rd Respondents is barbaric and therefore uncivilized as it violates fundamental rights of the Applicant … I therefore award reliefs Nos. 1, 2, 3, 4 and 5 as prayed. However, as to relief No 6, I do not believe that somebody in the caliber of the applicant in this kind of litigation can be adequately compensated by monetary compensation, no matter how much.

But payment of damages cannot adequately compensate the applicant, but just to show sympathy and/or mitigate his medical expenses or other expenses, the sum of Five Million Naira (N5,000,000.00) can suffice. So, I award the sum of Five Million Naira (N5,000,000.00) compensation to the applicant to be jointly paid by all the Respondents so as to mitigate the suffering of the applicant.” ​ The gravamen of the complaint of the Appellants under this issue for determination is on the improper evaluation of affidavit evidence carried out by the lower Court in making its findings.

It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation.

A finding of fact by a trial Court involves both perception and evaluation –Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision.

The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria ​(2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.

Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against.

By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant.

This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1. ​The contention of the Appellants was that the lower Court failed to properly evaluate the entire contents of their counter affidavit and thus fell into error when it held that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless.

The Appellants argued that there were paragraphs in the counter affidavit wherein they frontally denied beating the Respondent and that had the lower Court considered the entire paragraphs of the counter affidavit, it would have found that the Appellants made no such admission and that this would have affected the outcome of the case. ​Reading through the above reproduced excerpts of the judgment of the lower Court, it is correct that the lower Court found that the Appellants made such an admission and that it did so on the ground that, in specifying the paragraphs of the affidavit of the Respondent they were denying in paragraph 5(a) of the counter affidavit, the Appellants omitted to mention paragraph 18 wherein the Respondent deposed to those facts.

There is nothing in the deliberations in the judgment showing or suggesting that the lower Court considered the other paragraphs in the counter affidavit before it came to this conclusion.

The lower Court particularly failed to refer to and consider the contents of paragraph 5(q) of the counter affidavit which reads: “That throughout the exercise of searching, the 4th, 5th and 6th Respondents never beat the Applicant, the Applicant resisted arrest and in the course of the struggle to restrain the Applicant from running away, the Applicant and 4th and 5th Respondents fell down and sustained injuries.

The Applicant was conscious throughout the searching exercise and no beating ever took place.” The Appellants, in this paragraph, not only denied pouncing on the Respondent, jacking his gown and punching him in the mouth, they said the Respondent was never beaten and proceeded to explain how the Respondent sustained the injuries to his mouth and why they leg-cuffed him.

It is elementary that in the determining whether or not a party has made an admission, the entire averments in the pleading or the entire depositions in the affidavit of the party must be read and considered together as a whole, and not just one or some of the paragraphs therein in isolation – Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 519, United Bank for Africa Plc Vs Ibafon Chemicals Ltd (2014) 6 NWLR (Pt 1402) 125, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, Social Democratic Party Vs Biem (2019) LPELR-46871(CA), Orubo Vs State (2021) 16 NWLR (pt 1803) 549. ​The lower Court very evidently failed to consider the totality of the depositions in counter affidavit of the Appellants as a whole in coming to the conclusion that the Appellants admitted beating and injuring the Respondent.

A read through the above reproduced excerpt of the judgment shows that it was on the basis of the alleged admission by the Appellants, coupled with the fact that the parties agreed that nothing incriminating was found on the Respondent during the search, that the lower Court entered judgment and granted the claims of the Respondent.

The judgment of the lower Court was thus predicated on an improper evaluation of the totality of the affidavit evidence presented before it by the parties. ​The portion of the counter affidavit of the Appellants that the lower Court failed to consider and evaluate was their case that there were three passengers on the motorcycle that the fourth to the sixth Appellants flagged down for searching and that they first searched the rider of the motorcycle and then the Respondent, and they asked the Respondent to step aside to enable them conduct a search on the third passenger.

The Appellants deposed that rather than step aside, the Respondent starting abusing the officers and created a scene which attracted other persons and in the course of which the officers were prevented from searching the third passenger on the motorcycle and who escaped from the scene of the search. They deposed that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

The Appellants deposed that the Respondent resisted the arrest and that in the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that the officers did not beat the Respondent and that the Respondent was conscious the whole time. The Appellants deposed that when the officers succeeded in arresting the Respondent and he was leg-cuffed to restrain him from running away with the intent of taking him to their office in Hadeija.

They deposed that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent. ​There is nothing in the processes filed by the Respondent disputing that the fourth to the sixth Appellants were carrying out their lawful duties along the Kano/Gumel highway on the day in question when they flagged down the motorcycle conveying the Respondent with the intent to carry out a search of the rider and passenger(s).

Now, if the facts in these depositions of the Appellants are indeed correct, the act of the Respondent in obstructing the officers in the course of carrying out their lawful duty was wrongful and opened him up for arrest and that his resisting of arrest was wrongful and that officers would have acted rightly in enforcing the arrest and in leg-cuffing the Respondent to restrain in him from running away. This will mean that the fourth to the sixth Appellants acted legally and that their actions were not in breach of the fundamental rights of the Respondent.

After all, it is settled law that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.

What the above translates to is that the portion of the counter affidavit of the Appellants that the lower Court ignored and failed to consider and evaluate was a very material and substantial part of the case of the Respondent and which could have, if properly considered and evaluated, exonerated them from the allegations made by the Respondent. Therefore, the failure of the lower Court to evaluate the entire contents of the counter affidavit of the Appellants amounted to a breach of their right to fair hearing and occasioned them a substantial miscarriage of justice.

The judgment of the lower Court is thus unsustainable and cannot be allowed to stand Arisons Trading & Engineering Company Ltd Vs The Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26, Olanrewaju Vs Oyesomi (2014) LPELR-22695(SC), Union Bank of Nigeria Plc Vs Bear Marine Services Ltd (2018) LPELR-43692(SC), Ojo Vs State (2021) 3 NWLR (Pt 1764) 435. Counsel to both parties have suggested that this Court should, where it finds that the lower Court improperly evaluated the affidavit evidence of the parties, proceed to evaluate the affidavit evidence and enter the appropriate judgment.

It is correct that this Court has the power to so reevaluate evidence and enter appropriate judgment where the lower Court is guilty of improper evaluation of evidence – ABC Transport Co Ltd Vs Omotoye (2019) 14 NWLR (Pt 1692) 197. Yankey Vs Austin (2021) 1 NWLR (Pt 1756) 130, Ojo Vs State supra.

It is, however, not a power that this Court exercises willy-nilly and its exercise depends on the facts and circumstances of each case. ​In the instant case, when the narration of events by the Respondent in his affidavit in support is put side by side with the story of the events related by the Appellants in their joint counter affidavit, there a clear irreconcilable conflict on germane, significant and material facts that cannot be overlooked by the Court.

It is correct, as stated by Counsel to the Respondent, that such conflict in affidavit evidence may be resolved either by resort to documentary evidence attached to the affidavits or by the calling oral evidence – Ahmed Vs Minister, Internal Affairs (2002) 15 NWLR (Pt 790) 239, Eze Vs All Progressive Grand Alliance (2020) 3 NWLR (Pt 1712) 413, Amatonjie Vs Chisco Transport (Nig) Ltd (2021) 9 NWLR (Pt 1780) 62. ​Only the Respondent attached documentary exhibits to his affidavit and, contrary to the assertion of Counsel to the Respondent, none of them provides any assistance towards the resolution of the identified conflict in the affidavits of the parties.

The only way the conflict can be resolved, therefore, is through the calling of oral evidence. Here lies the handicap of this Court in exercising its power to re-evaluate the affidavit evidence of the parties. This is an appellate Court and the calling of oral evidence is not part of its modus operandi. It is the lower Court that operates in the realm of calling for oral evidence.

This Court thus declines the invitation of Counsel to the parties to reevaluate the affidavit evidence of the parties and will remit the case to the lower Court for a hearing on the full strength of the affidavit evidence of the parties.

The first issue for determination is resolved in favour of the Appellants. ​This takes us to the second issue for determination, which is – in the case of first issue for determination being answered in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case. ​The question that arises is, whether, in view of the resolution of the first issue for determination in the negative, this Court should proceed to resolve the second issue for determination?

One of the most firmly established principles of judging and judgment writing is that it is incumbent on a lower Court in the judicial hierarchy to resolve all the issues for determination raised or submitted by the parties for adjudication and not select one or some of the issues and decide the case thereon.

The rationale for this is so that if it turns out on a further challenge to a higher Court that its findings on the selected issue or issues are wrong, the higher Court will not be faced with a dilemma of whether to remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits – Brawal Shipping Nig. Ltd Vs F. I.

Onwadike Co Ltd (2000) 6 SCNJ 508 at 522, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Stowe Vs Ben-Stowe (2012) 9 NWLR (Pt 1306) 450, University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1, Honeywell Flour Mills Vs Ecobank Nigeria Ltd (2018) LPELR 45127(SC), Onwe Vs State (2018) 5 NWLR (Pt 1612) 217, Sarki Vs All Progressive Congress (2020) 1 NWLR (Pt 1706) 515 at 546C-F. The rule is however not absolute. It admits exceptions, i.e. situations where, after resolving a determinant issue in a matter, a lower Court need not proceed to resolve other issues in the matter.

These are: (i) where the issue resolved is one of breach of right of fair hearing, which renders the entire proceedings a nullity, the Court need not proceed to resolve the other issues –Idakwo Vs Ejiga (2002) 13 NWLR (Pt 783) 156, Orugbo Vs Una (2002) 16 NWLR (Pt 792) 175, C. N.

Okpala & Sons Ltd Vs Nigerian Breweries Plc (2018) 9 NWLR (Pt 1623) 16; (ii) where the lower Court is restricted by statute from going forth to determine the other issues; (iii) where an intermediate Court finds that the lower Court acted improperly in such manner that requires the case to be re-heard by the lower Court or by a Court of coordinate jurisdiction, it should not proceed to pronounce on the merit of the issues argued if the same issues would still arise at the fresh hearing of the case – Sanusi Vs Ameyogun (1992) 4 NWLR (Pt 237) 527 at 550-551, Tiga Green Farms Agricultural (Nig) Ltd Vs Mitsui O.

S. K. Lines Ltd (2005) 17 NWLR (Pt 953) 70 at 86-87 and Five Star Industry Ltd Vs Bank of Industry Ltd (2017) LPELR 44029(CA); and (iv) where the issue resolved by the lower Court is one of jurisdiction and it is on a ground which has been settled beyond peradventure by the Supreme Court and on which the Supreme Court has been unanimously resolute, such that the resolution of the other issues will amount to an academic exercise –KLM Royal Dutch Airlines Vs Toba (2014) LPELR-23993(CA). ​The present situation, in this case, comes within the third exception to the rule.

The resolution of this Court under the first issue for determination is that the matter be remitted to the lower Court for a re-hearing of the entire case on the merits, and this includes the award of damages made by the lower Court. It will not be proper for this Court to proceed to pronounce on the second issue for determination in the circumstances. The second issue for determination is hereby declined and struck out. In conclusion, this Court finds merits in appeal and it is hereby allowed.

The judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018 is set aside for having been predicated on an improper evaluation of the affidavit evidence of the parties. The case file is remitted to the lower Court for a re-hearing of the case and the resolution of the obvious conflicts in the affidavit evidence of the parties by another Judge. The matter should be granted accelerated hearing. The parties shall bear their respective costs of the appeal.

These shall be the orders of the Court. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE O. ABIRU, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother HABEEB ADEWALE O. ABIRU, JCA obliged me the draft of the leading judgment delivered by him just now. For the reasons ably considered in the judgment that tallied with mine, I too found the appeal meritorious. The appeal is allowed by me too. ​I abide by the consequential orders in the leading judgment.

Judgment

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice M. A. Ikpambese in Suit No. MHC/159/2011, on the 6th day of February, 2017, wherein the trial Court entered judgment in favor of the Plaintiff. The Appellant was the Defendant, while the Respondent was the Plaintiff at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court.

The Record of Appeal was compiled and transmitted to this Court on the 28th of March, 2017. The Appellant’s brief was amended and same was filed on the 29th of December, 2021, while the Respondent’s brief of argument was filed on the 20th of January, 2022. The Appellant upon being served with the Respondent’s brief of argument, did not file any reply brief in answer on point of law to the Respondent’s submissions. At the hearing of the appeal, counsel to both Appellant and Respondent adopted their respective briefs.

The Appellant amended his notice of appeal, and the said amended Notice of Appeal which contains 10 grounds of appeal was filed on the 3rd of December, 2021. The Respondent who was Plaintiff at the trial Court commenced this suit by a writ of summons dated the 10th of May, 2011, and filed on the 11th day of May, 2011, which was issued to the Respondent who was tagged as defendant at the trial Court.

The reliefs sought by the Respondent against the Appellant by Paragraph 11 of the statement of claim accompanying the writ were amended and by paragraph 12 of Respondent’s amended statement of claim. The Respondent’s claims against the Appellant by paragraph 12 of his proposed amended statement of claim are as follows: a. An order for immediate payment of compensation to the tune of Twenty Six Million (N26,000,000) only for the unathourized acts of trespass and for the destruction of economic crops and other sundry valuables on the Plaintiff’s family land. b.

General damages in the sum of Five Million Naira N50000.00. TOTAL – Twenty-three percent of the compensation claimed for the delay in payment of same. c. Any other equitable or legal that will meet the justice of this case. See page 307 of the Record of Appeal.

BRIEF STATEMENT OF FACTS The case of the Respondent against the Appellant is that he is the family head representing a large family unit known and called Antiv family, numbering thousands of people with a large parcel of land situate at Antiv village near College of Advance and Professional Studies, Uni Agric Road Nyiev, Makurdi Benue State. That as family head of a large member of about 119 members, he own a large parcel of land with a lot of cultivation of cash crops, economic tress ranging from fish ponds, yams, cassava, millet, rice, mangoes, oranges and arable plain farmland.

The Respondent’s case is that in or about the year 2010, the Appellant came unto their land unauthorized and without due process of law started construction of electricity generation work trespassing unto his farmland and that of his family members, and when the Respondent became aware of the Appellant’s activities, he approached them and demanded for compensation for unauthorized acts of trespass and destruction of economic valuables, but the Appellant failed, refused and neglected to answer him. ​It is the Respondent’s case that he consulted his counsel to discuss with the Appellant on the issue, but the Appellant wouldn’t listen to his counsel, hence, the institution of this suit as the Respondent has suffered a lot of economic loss by acts of the Appellant on his lands and that of 119 family members.

See page 4–5 of the Record of Appeal. The Appellant’s defence to the claim of the Respondent was that she is carrying out a project of transmission line (330kv Power line Jos–Makurdi) which was conceived as far back as 2006, and same is done with tax payers monies and the project is to help with the poor power supply problem in the country.

That out of the 286 kilometer transmission line which cuts across several states and communities, it is only the Respondent’s complaint that seeks to cripple the national project that is for the general public interest. ​It is the Appellant’s case that several billions of naira have been expended in the project, and farmlands with improvement on it who are affected by the power lines have been compensated as the payment of compensation is not done because a claimant has a land, but based on the improvement on the land.

That compensations have been duly paid to affected communities and notice to quit issued before the project commenced. It is the Appellant’s case that most of the claimants are land speculators and they have been paid already but are returning with a different name and identity for second payment as any person with a genuine complaint has been compensated including the Antiv family.

Therefore, the Appellant is surprised by the Respondent’s case that the Antiv family had not been compensated, as the Respondent himself was at the compensation venue as an observer and representative of the local government. See pages 27–29 of the Record of Appeal. ISSUES FOR DETERMINATION The Appellant for the determination of this appeal distilled seven issues for determination as follows: 1. Whether the Learned Trial Judge was right to have admitted “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011? (Ground 1). 2.

Whether the Learned Trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who is not the maker? (Ground 3).

3. Whether the Learned Trial Judge was right to have treated “Exhibit ANT 1” as a product of an expert when there was no such evidence before the Court that PWII was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent. (Grounds 2 and 4). 4.

Whether the Learned Trial Judge was right to have awarded N26,000,000.00 special damages when same was not pleaded and particularized as required by law. (Ground 5). 5. Whether the Learned Trial Judge was right to have awarded the sum of N31,000,000,000 (Thirty One Million Naira) only as special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to judgment of the Honorable Court. (Grounds 6 and 7). 6.

Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) general damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same injury. (Ground 8). 7. Whether from the totality of evidence adduced at the trial Court, the judgment of the learned trial Judge is not against the weight of evidence. (Ground 9). The Respondent adopted issues one and two of the Appellant and formulated three other issues.

The three issues which are not tied to any ground of appeal read as follows: ISSUE 3 Whether the Appellant’s issue three does not tantamount to prolixity or proliferation of Grounds and issues of Appeal and not tailored to the real issue of compensation in suit no. MHC/159/2011 and valid in law to allow this appeal. ISSUE 4 Whether Plaintiff’s issues 4, 5, 6, & 7 does not tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of relief claimed.

Issue 6 Whether the totality of Appellant’s countenance before the trial Court does not qualify as a waiver of her right to defend suit No. MHC/159/2011. I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and I sincerely believe that the issues formulated by the Appellant are apt to determine this Appeal. The Respondent did not tie his issues 6 to any ground of appeal, therefore his submissions under there goes to no issue.

However, issues 3 and 4 made reference to issues 3, and issues 4, 5, 6 & 7 argued by the Appellant, therefore I shall consider the two issues as response to the Appellant’s argument in issues 3, 4, 4, 6, and 7 accordingly. I shall adopt the issues distilled in the Appellant’s brief and consider the submissions of Respondent as noted in the determination of this appeal. ISSUE ONE 1. Whether the Learned Trial Judge was right to have admitted “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011? (Ground 1).

APPELLANT’S SUBMISSION ON ISSUE ONE Counsel commenced his argument in this issue by stating that the grouse of the Appellant in this issue for determination is that the learned trial Judge was wrong to have admitted in evidence “EXHIBIT ANT 1” (Assessment of Compensation For Tse Antiv Family Community) and used it as a basis for awarding N26,000,000.00 (Twenty Six Million Naira) only as special damages to the Respondent, when EXHIBIT ANT 1 was made only in January 2012, but smuggled into the proceeding vide a Motion No. MHC/282M/2015 granted on 15/01/2016.

Therefore EXHIBIT ANT 1 was certainly made when proceedings were already pending in the trial Court in flagrant breach of Section 83 (3) of the Evidence Act 2011. Counsel submitted that “EXHIBIT ANT 1” which was the valuation report from Ngobar & Co., Estate Surveyors & Valuers ought not to be admitted in evidence as the document was produced during the pendency of the suit.

Counsel cited S. 83(3) of the Evidence Act 2011 which reads thus: “(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”. ​Counsel contended that the trial Court admitted “EXHIBIT ANT 1” even though it was objected to the trial Court admitted it and the said exhibit formed the basis of the judgment of the Court.

Although the trial Court admitted in his ruling that the document was made during the pendency of the suit, yet the Court admitted it as “EXHIBIT ANT 1”. Counsel while referring this Court to the authority of Aliyu v.

Bulaki (2019) LPELR 46513 per Honourable Justice AMINA AUDI WAMBAI JCA at pages 27-28 where the Court expunged documents admitted in similar circumstance in contravention of S. 83 (3) of the Evidence Act and urged this Court to expunge “EXHIBIT ANT 1” from the record as he the Respondent commissioned the production of the document to aid him or enhance his case 55 months after the commencement of the suit.

Counsel submitted in rounding up his argument under this issue that by the above authority, the learned trial Judge was wrong to have admitted “EXHIBIT ANT 1” in evidence, and counsel urged this Court to expunge “EXHIBIT ANT 1” from the record and hold that it was inadmissible, as it was made to enhance the Respondent’s claim at the lower Court and resolve this issue in the negative.

RESPONDENT’S SUBMISSION ON ISSUE ONE In response to this issue, the Respondent contended that the trial Court was right in law to have admitted EXH ANT1 in evidence, as although the Court of Appeal is clothed with enormous discretionary powers to reject evidence on appeal, however this is restricted to a situation where the evidence in question is totally inadmissible in law.

And nevertheless, if such evidence is only admissible upon satisfaction of certain conditions, the failure of opposing party to oppose its admissibility before the trial Court, as in the instant case, will deprive him of the right to challenge its admissibility on appeal and the appellate Court, will be aloof in such a circumstance. Counsel refers the Court to the case of Dagaci of Dere VS Dagaci of Ebwa (2006) All FWLR (Pt. 306) 786. S.C, and urged on the Court to discountenance Appellant’s contention on issue one, as not being meritorious, frivolous and of no substance in law.

ISSUE TWO Whether the Learned Trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who is not the maker? (Ground 3).

APPELLANT’S COUNSEL SUBMISSION The Appellant under this issue attacked the maker of EXHIBIT ANT 1 and called on this Court to determine whether PW II, Surveyor Justin Ormye who tendered “EXHIBIT ANT 1” in evidence who was not its maker, as the document was prepared and signed by ABU JIMAH UMORU who claimed to be an associate consultant in the firm of NGOBAR & CO., can tender the said document in flagrant breach of Section 83 (1) of the Evidence Act, 2011, as only the maker of a document is legally competent to tender it.

Counsel submitted that the Respondent did not lead any shred of evidence as to why the purported maker, Abu Jimah Umoru was not available to tender the said document as he is the maker. Counsel referred this Court to the authority of Flash Fixed ODDS Limited v. Chief J.Q. Akatugba (2001) FWLR. (Pt. 76) 709 at 730 para A-E per TOBI, J.C.A to submit that where a document is tendered by a person who is not its maker, such a document cannot be given any probative value.

Counsel then rounded up by submitting that the learned trial Judge was wrong to have placed any evidential value and attach any weight to “EXHIBIT ANT 1” which was nothing but documentary hearsay. Counsel urged this Court to invoke the provision of Section 167 (d) of the Evidence Act, 2011 and hold that failure to call Abu Jimah Umoru to come and testify would not be favourable to the Respondent.

And that this Court should answer this issue for determination in the negative and not to attach any weight to EXHIBIT ANT 1 as the lower Court attached heavy weight to it as a basis for its judgment and allow the appeal on this issue. RESPONDENT’S COUNSEL SUBMISSION On this issue, Respondent’s counsel contended that the learned trial Judge was right to have admitted Exhibit ANT 1 in evidence through PWII. This is because, the learned trial Judge cogently advanced reasons that legally warranted admissibility of Exhibit ANT 1.

Pertinently, the learned trial Judge’s reason was that there existed abundant and unchallenged evidence that the PW II is from the Estate valuers of Nogbar & Co. Moreover, the Appellant’s counsel who had ample opportunity to cross-examine the PW2, in order to prove if he was not qualified to practice as a surveyor, failed, neglected or refused to do so. ​That the PWII, through whom the instant Exhibit was tendered, is an estate valuer, working under the platform of Nogbar & Co.

And the hallmark of admissibility being relevancy and in the face of plaintiff counsel’s concession, his Lordship was procedurally justified admitting the Exhibit in evidence. My Lords, in a scenario as above, the learned trial Judge had no option than to have accepted him as he did. Counsel therefore prayed this Court to resolve issue two in favour of the Respondent, by holding that the learned trial Judge did not err by accepting PW 2’s evidence at trial. ISSUE THREE 1.

Whether the Learned Trial Judge was right to have treated “Exhibit ANT 1” as a product of an expert when there was no such evidence before the Court that PWII was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent. (Grounds 2 and 4).

APPELLANT’S COUNSEL SUBMISSIONS The Appellant’s grievances under this issue is that the learned trial Judge was wrong to have treated “EXHIBIT ANT 1” as a product of an expert as no atom of evidence was pleaded or proffered that PW II was an expert. The qualifications and experiences of PW II was not in evidence as his evidence at page 359 of the record was to the effect that “I am a practicing Estate Surveyor I remember making a witness statement on oath on 19/6/2016. This is the said sworn statement to me in Court.

There is a valuation report attached and I can identify it with the logo of our estate firm and no more”. Counsel contended that a critical look at EXH ANT 1 will reveal the following: i. EXHIBIT ANT 1 (assessment of compensation) is in the firm name of Ngobar & Co. ii. Abu Jimab Umoru signed the said EXHIBIT ANT 1 without any nexus as he did not sign for Ngobar & Co. iii.

No nexus between Abu Jimah Umoru and PW II with the said exhibit as the seal and stamp of Abu Jimah Umoru and PW II were not affixed to “EXHIBIT ANT 1” to show that they were registered by the ESTATE SURVEYORS AND VALUATION REGISTRATION BOARD ACT CAP E 13 Laws of the Federation of Nigeria 2004 as fit and proper to practice as such in Nigeria by virtue of part 4 (1) of the ESTATE SURVEYING AND VALUATION REGULATION 2014 B219 - 228.

Counsel quoted the provisions part 4 (1) of the ESTATE SURVEYORS AND VALUATION REGISTRATION BOARD ACT CAP E 13 which provides as follows: “A registered Estate Surveyor and Valuer shall be issued with a Seal and Stamp on registration by the Estate Surveyors and Valuers Registration Board of Nigeria (hereinafter referred to as, “the Board’). All professional duties performed by or emanating from the registered Estate Surveyor and Valuer or under his hand shall bear the Seal and Stamp issued by the Board.

The Seal and Stamp issued by the Board shall not be replicated under any circumstances.” Also in part II 13(a) (b). A registered Estate Surveyor and Valuer or firm shall not issue a valuation report under his registered number unless such valuation. a. follows the prescribed standard set out by the Board; and b. bears the Stamp and Seal issued by the Board.

On the strength of the law cited above, Counsel contended that EXHIBIT ANT 1 was not Stamped and Sealed which made ‘EXHIBIT ANT 1 to contravene part 4 (1) and (13 a & b) of the Estate Surveying and Valuation Registration 2014 which made PW II not to qualify as an expert or Estate Surveyor and the trial Judge ought not to attach any weight to same as a product of an expert. Counsel on the functions of an expert witness referred to the authority of All Nigeria Peoples Party and Anor v. Alhaji Saidu Nasamu Usman & 2 ORS (2009) ALL FWLR (Pt. 463) 1292 1342-1343.

Counsel also referred to the authority of Henry Tuah Mary v. Michael (2011) ALL FWLR (Pt. 590) 1366 AT (Pp. 1375-1376, PARAS H on the import of S. 57 of the Evidence Act and the place of opinion evidence by expert witness and submitted that it was wrong for the trial Judge to have admitted EXHIBIT ANT 1 and attached heavy weight to it and used it as basis for giving judgment to the Respondent.

More so, there was no sworn deposition made by the PWII on 19/06/2016, therefore Counsel urged the Court to answer the issue in the negative and hold that EXHIBIT ANT 1 is not a product of expert and PWII and EXHIBIT ANT 1 should be expunged from the record. RESPONDENT’S COUNSEL SUBMISSION Respondent in response to Appellant’s issue three formulated his issue 3 which reads as follows: Whether the Appellant’s issue three does not tantamount to prolixity or proliferation of Grounds and issues of appeal and not tailored to the real issue of compensation in suit no.

MHC/159/2011 and valid in law to allow this appeal. It is the Respondent’s contention that Appellant’s issues 3 constitute a wanton prolixity and proliferation of grounds formulated and issues by the Appellant’s counsel in this appeal, are not tailored to real issue of compensation in suit No. MHC/159/2011 and this is fatal to the case of the Appellant. Counsel submitted that the main thrust of the Respondent’s claim before the trial Court is on page (307) of the record.

Therefore gleaned from the standpoint of the Respondent’s claim, it is crystal clear that the Appellant’s issue three, constitutes exaggeration or proliferation of grounds and issues distilled, not accorded or have any bearing with the core issue in suit No. MHC/159/2011. Counsel referred to the authority of Olaide Ibrahim v. S.A Ojomo & 3 Ors (2004) 4 M.J.S.Cg. 143 R.9 para.

B and submitted that the Appellant’s ground formulated and issues distilled not having direct bearing with the sole issue of compensation constitute prolixity or proliferation of grounds of appeal and issues for Court’s determination. Counsel then urged this Court to accept this contention and discountenance the numerous grounds of appeal, inclusive of issue three, so proliferated, with other issues therein and disallow same as lacking in merit and substance, not having bearing with the sole issue before the trial Court.

ISSUE FOUR Whether the Learned Trial Judge was right to have awarded N26,000,000.00 special damages when same was not pleaded and particularized as required by law. (Ground 5). APPELLANT’S COUNSEL SUBMISSION The complaint of Appellant by this issue is that the Respondent at trial Court claimed N26,000,000.00 as compensation for unauthorized acts of trespass and destruction of economic crops and other sundry valuables on the Respondent’s family land without specifically pleading the economic crops and sundry valuables allegedly destroyed as well as value of the said damage.

Counsel referred to the authority of Asman Man and Mech Ltd v. Spring Bank Plc (2012) ALL FWLR (Pt. 613) 1864 AT 1898-1899 paras G-C on the need to particularize special damages. ​Counsel submitted that a cursory look at the Respondent’s Amended Statement of Claim shows the failure of the Respondent to particularize and strictly plead the said damages to the economic crops and sundry valuables to warrant the grant of N26,000,000.00 as special damage, as all Respondent made were sweeping statements.

That the best the Respondent has done is to make reference in paragraph 9 of the amended statement of claim to the Estate Surveyor’s report. Counsel contended that this is not proper pleading and particularization of alleged acts of trespass done to Respondent’s land. Counsel contended further that even the said Estate Surveyor’s report was only smuggled in while trial was underway and was made on the recommendation of the Respondent’s counsel.

Moreover the said Estate Surveyor’s report is only an opinion of an expert and does not amount to strict proof of the act of trespass to Respondent’s land. Counsel then relied on the authority of Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623 AT 638 para. C-E and went further to submit that it is settled principle of law that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proved with credible evidence.

Without proof, no special damages can be awarded. ​Counsel also submitted that if various items are claimed for, the Respondent can only be entitled to be awarded any of those items of which sufficient evidence is available. However, where a Respondent sets out to adduce evidence in proof of special damage claimed by him and the evidence was deficient or unsatisfactory or rejected by the Court; that should put an end to that claim. That the learned trial Judge was not entitled to embark upon his own assessment of the special damages using his own conceived perimeter in place of evidence.

Counsel relied on the authority of Horst Sommer & 2 Ors v. Federal Housing Authority (1992) 1 NWLR (pt. 219) 548 at page 560 at paras. E G Counsel then rounded his submission on this issue by stating that no special damages were proved or could have been proved upon the pleadings and evidence adduced by the Respondent; thus, the award of Twenty Six Million Naira (N26,000,000.00) as special damages was unwarranted, unmerited, made in error and ought be set aside.

Counsel urge this Court to hold that the Learned Trial Judge was wrong to have awarded special damages of N26,000,000.00 (Twenty Six Million Naira) only and resolve the issue in favour of the Appellant.

RESPONDENT’S COUNSEL SUBMISSION The Respondent did not adopt issue 4 of the Appellant but formulated issue 4 of his own to wit: Whether Plaintiff’s issues 4, 5, 6, & 7 does not tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of relief claimed On that note, Counsel while urging this Court to hold in the affirmative that Appellant’s issues 4,5 6 and 7 as constituted smacks of infraction of the Rule against approbating and reprobating submitted that gleaned from her conduct in suit the Appellant with her battered procedural image cannot be allowed in law to take advantage of her wrong act as demonstrated in her willful and inscrutable failure, omission or refusal to defend suit No: MHC/159/2011.

That to do so will be tantamount to approbating and reprobating. Counsel referred to the case of Agbaregh VS Mimra (2008) All FWLR (Pt. 371) 1669, and submitted that this pretext, would manifestly be unjust and also portray the law as an instrument of injustice. Counsel then relied on the case of Agbidigbi VS Agbidigbi (1996) 6 SCNJ 105.

Counsel urged this Court to discountenance Appellant’s issues 4, 5, 6 and 7 as lacking weight in legal reasoning to support the case of the Appellant. That Appellant’s issues so distilled are not valid in law regarding the subject matter in this suit, and same is not deserving of invocation of the discretionary powers of this Court in his favour, when the Appellant as defendant failed, neglected and waived her legal right to defend the suit No. MHC /159/2011 as opposed to suits No. MHC/185/2012 and MHC/77/2011 which latter suits were not pending before the trial Court.

Counsel submitted that the Appellant’s issues are incurably invalid, absurd, misleading and not deserving of the unfettered discretionary powers of this Honourable Court in her favour.

Counsel reminded his Court not to be oblivious of the well-known notorious equitable principles in our jurisprudence that says “Equity” protects the vigilant and not the indolent, and contended that this equitable doctrine becomes apposite or germane against the case of the Appellant in this appeal. ​Counsel submitted further that this is so because from the genesis to revelation of suit No, MHC/159/2011 the Appellant as defendant never demonstrated any act of vigilance nor neither is she coming to equity with clean hands.

Counsel referred this Court to the judgment of the trial Court on (pages 380-384 of the record) where the trial Judge painstakingly had painted a grim picture of several, ridiculous and inexcusable traits of over indulgences to the Appellant’s counsel, despite his numerous acts of in diligence, ranging from invention of strange and non-existing suits numbers, and abandonment of application on notice. It is Respondent’s Counsel’s contention that these flaws are exacerbated by violent, flagrant and reckless disregard to the integrity of Court.

For instance, the Appellant’s counsel took 21 days on his volition to file and adopt his final address yet failed, omitted or refused to do so. My Lords, above are manifest indicators from your Lordship, to agree that the Appellant failed the equitable test of being vigilant or coming to equity with clean hands Counsel submitted again that by these numerous infractions above stated, this Court is urged to hold that the Appellant had waived his legal right to defend suit No. MHC/159/2011 and ought not to complain.

Furthermore, on the requisite yardstick or standard of proving all civil cases being the balance of probabilities, it is on record that only the Respondent/plaintiff before the trial Court testified with his lone witness to prove his claim. As seen from pages 357-358 of record and pages 359-362 of the printed record. Therefore, it is not disputable that these testimonies from PWI and PWII were unchallenged.

Counsel on that note submitted that it is also the law that given a scenario as in the instant case, the law allows the trial Court to evaluate the unchallenged evidence of the plaintiff which was what the trial Court did in suit No. MHC/159/2011. Counsel relied on the cases of Odulaja VS Haddad (1973) 11 SC 53 and Omoregbe VS Daniel Pendor Lawani (1980) 4.S.0 108 and 117.

That the Rules of procedure dictates that before a Judge before whom evidence is adduced by parties in all a civil cases comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both as properly captured and amplified by the trial Judge in his judgment of 6th February, 2017.

ISSUE FIVE Whether the Learned Trial Judge was right to have awarded the sum of N31,000,000,000 (Thirty One Million Naira) only as special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to judgment of the Honorable Court. (Grounds 6 and 7). ​APPELLANT’S COUNSEL SUBMISSION On this issue, Counsel started by saying that Respondent has failed to prove his case to be entitled to an award of N31,000,000.00 (Thirty One Million Naira) only.

By paragraph 12 (a) & (b) of the Respondent’s proposed amended statement of claim, the Respondent was claiming special damages of N26,000,000.00 (Twenty Six Million Naira) only and general damages of N5,000,000.00 (Five Million Naira) only.

That by paragraph 3 of the Respondent’s amended statement of claim dated and filed on 19th November, 2014, the Respondent averred that his family members are 119 in number while on page 9 of the records particularly paragraph 2, the Respondent averred thus” “That I have the consent of 124 family members and that of my counsel P.I Ackosseh Esq. of counsel to depose to this oath”.

Counsel submitted further that on page 11-12 of the records, there is a document titled “ANTIV LIST OF PERSONS NOT COMPENSATED OVER TRESPASS TO THEIR PARCEL OF LAND” which comprises of 123 persons while on pages 223-253 is a document emanating from Ngobar & Co., Estate Surveyors & Valuers the number of persons whom the valuation was carried out on their behalf are 156 in number.

That it is equally worthy of note that the grand total of the valuation in “EXHIBIT ANT 1” is N15,919,295.26 (Fifteen Million, Nine Hundred and Nineteen Thousand, Two Hundred and Ninety-Five Naira, Twenty Six Kobo) only. Counsel therefore contended that with all the inconsistencies listed, one wonders how the trial Court came to the conclusion that the Respondent has proved his case and awarded damages as per their paragraph 12 (a) and (b), as it is trite that where there are material inconsistencies in the case of a party, the Court will resolve same against the party.

See Alhaji Jawando & Anor v. Madam Falilat Bakare (2006) ALL FWLR (Pt. 332) 1590 @ 1609. ​Counsel submitted further that assuming but not conceding that EXHIBIT ANT 1 formed the basis for the decision now on appeal, another dispute that ought to arise is, who amongst the 156 persons in “EXHIBIT ANT 1” were part of the suit of the Respondent as the Respondent had hitherto stated, the number of Respondent he was representing to be 119 and confirmed same under cross-examination. That it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment.

Even where the defendant has failed to rebut the case of a plaintiff either by cross-examination or by defending the suit, the plaintiff (Respondent) was still duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence. Counsel relied on the authorities of SMAB Inter-Trade Ltd v. Bulangu (2013) ALL FWLR (Pt. 693) P. 2019 @ PP. 2033-2034 paras G-B and D. S.A.D.P.I v.

Ofonye (2008) All FWLR (Pt. 402) 1068 at 1090–1091, Paras G–A on the duty of the Plaintiff to prove his case on its strength and not the weakness of the Defendant’s case. ​Counsel then contended and submitted against the EXH ANT 1 ought to be admitted in evidence as same violates S. 83 (3) of the Evidence Act, and that the trial Court ought not to grant the reliefs of the Respondent as throughout the length and breadth of Respondent’s pleadings he did not show the extent of his land and that of the other Respondents, what quantity each Respondent has and the extent of damage as a result of trespass alleged to have been committed to the land.

In other words, the Respondent was granted reliefs in respect of unpleaded facts before the trial Court. Counsel relied on the authority of Somorin v. Adekanbi (2012) All FWLR (Pt. 622) 1776 at 1796, Para C. Counsel in rounding up his argument relied on the authority of Ogbeche v. Onoche (1988) 1 NWLR (Pt. 70) 370; Okoronkwo v. Chukueke (1992) 1 NWLR (Pt. 216) 175; Gari v.

Seirafina (NIG) LTD. (2008) ALL FWLR (Pt. 399) 434 to submit that the Respondent failed to plead and prove the economic trees destroyed, and prayed this Court to resolve this issue in his favor and set aside the judgment of the lower Court. ​The Respondent did not make submissions on this issue, but rather formulated issue 4 which he contended that the argument of the Appellant on issues 4, 5, 6, and 7 is tantamount to taking advantage of a wrongful doing or infraction of Rules of procedure that warranted the grant of the reliefs claimed.

I shall consider the submission of counsel on his issue 4 as his response to issues 4, 5, 6, & 7 of the Appellant accordingly. ISSUE SIX Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) general damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same injury. (Ground 8).

APPELLANT’S COUNSEL SUBMISSION Appellant’s contention by this issue is that it is legally wrong for the Learned Trial Judge to have awarded general damages of N5,000,000.00 (Five Million Naira) only to the Respondent after the learned trial Judge had awarded N26,000,000.00 (Twenty Six Million Naira) as special damages and as compensation for the same trespass alleged to have been committed by the Appellant on the land of the Respondent, as same amounts to double compensation. Counsel relied on the authority of Biliaminu Alao & Anor v.

Inaolan Builders Limited (1990) 7 NWLR (Pt. 160) 36 at 54. ​Counsel urged the Court of Appeal to answer issue No 6 in the affirmative and hold that the Learned Trial Judge was wrong to have awarded general damages of Five Million Naira (N5,000,000.00) only after awarding special general damages of N26,000,000.00 (Twenty Six Million Naira) only for the same injury. ISSUE SEVEN Whether from the totality of evidence adduced at the trial Court, the judgment of the learned trial Judge is not against the weight of evidence. (Ground 9).

APPELLANT’S COUNSEL SUBMISSION The grouse of the Appellant by this issue is that when the pleadings and the sworn deposition/oral and documentary evidence of the Respondent are considered alongside with the facts of this case and the finding of the Learned Trial Judge, it is apparent that the judgment of the lower Court is against the weight of evidence. To show that the judgment of the learned trial Judge is against the weight of evidence Counsel submitted that: a. By the Onamade v. ACB Ltd (1997)1 NWLR (Pt. 480) 123 at 145 at paras. C-D. Emegokwue V Okadigbo (1973) 4 SC 261, Odumosu v.

ACB (1976) 11 SC 261, it is the law that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded, and the Respondent did not plead the economic crops and his special damages were not particularized b. The Learned Trial Judge was carried away by the fact that the evidence of the Respondent at the trial was not challenged and therefore required minimal proof even on the face of material contradictions in the pleading of the Respondent and “EXHIBIT ANT 1”.

The amount stated on assessment of compensation in “EXHIBIT ANT 1” is N15,919,295.26 (Fifteen Million, Nine Hundred and Nineteen Thousand, Two Hundred and Ninety-five Naira, Twenty Six Kobo) only in the valuation certificate purportedly issued by PW II dated 31st day of January 2012.

Counsel submitted that it is the law that when evidence is at variance with pleadings it goes to no issue and paragraph 12(a) of Respondent’s proposed amended statement of claim dated 19th day of November 2014 and filed the same date the Respondent claimed N26,000,000.00 as compensation that is in (EXHIBIT ANT 1) which is at variance with the pleading.

That it is not in all cases that when the defendant failed to rebut the evidence of the plaintiff that the plaintiff will be entitled to judgment especially when the evidence of the plaintiff has been demolished or destroyed through cross-examination and/or the pleadings of the plaintiff is deficient and created doubts which made the case of the plaintiff unreliable, the defendant’s oral unnecessary. Counsel relied on the authorities of Shell Petroleum Development (Nigeria) Limited v. ABBA (2005) ALL FWLR COMPANY (Pt. 257) 1533 CA and Martchem Industries (Nigeria) Limited v.

M.F Kent (WA) Limited (2005) ALL FWLR (Pt. 271) 559. Counsel submitted that the trial Judge shut his eyes to the material contradictions in the pleading and evidence at the trial Court and gave judgment to the Respondent who has not proved his case as required by Sections 131 and 132 of the Evidence Act, 2011. That the Learned Trial Judge was over-generous in the award of N31,000,000.00 damages without reason for the award.

That the Learned Trial Judge failed to consider the apparent conflict in the N26,000,000.00 claimed as special damages in paragraph 12 (a) of the plaintiff’s proposed statement of claim and the assessment in EXHIBIT ANT 1. That the Learned Trial Judge would have dismissed the case of the Respondent that it has not been proved, as the trial Court was over-generous in granting general damages of N5,000,000.00, thereby occasioning Appellant’s grave miscarriage of justice.

As earlier stated, the Respondent did not adopt or formulate any issue to tie to ground 9 of the Appellant’s grounds of appeal which is argued by issue six, I shall consider his issue 4 which made reference to issue 7 argued by the Appellant as his response and argument on issue seven RESOLUTION ISSUE ONE Whether the learned trial Judge was right to have admitted ‘’Exhibit ANT 1’’ in evidence in flagrant breach of Section 83 (3) of the Evidence Act 2011.

Section 83 (3) of the Evidence Act 2011 provides: ‘’Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’’ ​The Supreme Court in U.T.C. (NIG) PLC V. LAWAL (2013) LPELR-23002 (SC) Pages 32-34 paragraphs D-A Per Kekere-Ekun, JSC stated: ‘’The complaint against Exhibits 4 and 5 is that A.K.

Gadzama wrote the letters after the proceedings had commenced thereby rendering them inadmissible within the meaning of Section 90 (3) of the Evidence Law Cap. 39 Laws of Lagos State of Nigeria 1973, Which provides: ‘’Nothing in this Section shall render admissible as evidence and statement made by a person interested at a time when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’’ The provision is in pari materia with Section 91 (3) of the Evidence Act 1990 and Section 83 (1) of the Evidence Act, 2011 (as amended).

A person interested has been described as a person who has a personal interest, financial, material or otherwise in the outcome of the proceedings. An ‘’independent person’’ on the other hand is a person who has no temptation to depart from the truth on one side or the other; a person not swayed by personal interest but completely detached, judicial, impartial and independent. In interpreting the provision, the Courts are enjoined to give the expression a narrow rather than a broad meaning. See: Gbadamosi v. Kabo Travels Ltd. (2010) 8 NWLR (Pt.668) 243; Peterside & Ors v.

Wabara & Ors. (2010) LPELR-CA/PH/188M/2003 at 8 D-G; Anyaebosi v. R.T. Briscoe Nig. Ltd (1987) 3 NWLR (Pt.59) 84; (1987) 6 SCNJ 9 at 22. It has also been held that there must be a real likelihood of bias before a person making a statement can be said to be a ‘’person interested’’. A person acting in an official capacity is generally not considered to be a ‘’person interested’’. In this appeal Exhibit ANT 1 the valuation report from Ngobar & Co., Estate Surveyors & Valuers was procured by the Respondent during the pendency of this suit the said Exhibit is dated 23rd day of January, 2012.

See page 275 of the records, while this suit was filed on 10th day of May, 2011. See pages 1-6 of the records, this position was also stated by the learned trial Judge in his ruling at page 361 of the record where he said the document was made during the pendency of this suit, he ought not to have admitted the said document in evidence thus Exhibit ANT 1 having been procured by the Respondent and made during the pendency of this suit is in contravention of Section 83 (3) of the Evidence Act, 2011 and is hereby expunge from the records.

A wrongfully admitted piece of evidence is not sacrosanct, it is still subject to the closest scrutiny by this Court. The appellate Courts are under a duty to cut down and expunge any evidence that is wrongfully admitted. See OKONKWO OKONJI (ALIAS WARDER & ORS V. GEORGE NJOKANMA & ORS (1999) LPELR-2477 (SC) Page 46. Thus, Issue one is resolved in favour of the Appellant.

ISSUES 2 and 3 TAKEN TOGETHER: ISSUE TWO Whether the learned trial Judge was right when he admitted Exhibit ANT 1 in evidence which was tendered by a person who was not the maker.

And ISSUE THREE Whether the learned trial Judge was right to have treated ‘’Exhibit ANT 1’’ as a product of an expert when there was no such evidence before the Court that PW II was competent to practice as Estate Surveyors and Valuers as regulated by the Registration Board of Nigeria and the Rules made thereunder when there was no sworn deposition to that effect and granted and used it as a basis to grant the reliefs of the Respondent.

In the resolution of issue one, I expunge from the record Exhibit ANT 1 so any pronouncement made on issues two and three would be academic exercise, a fruitless effort, in other words, issues two and three are overtaken by the resolution made in issue one in essence issue two and three are lifeless. Appellate Courts do not entertain issues which will amount to embarking on an academic voyage. ISSUE FOUR: Whether the learned trial Judge was right to have awarded N26,000,000.00 Special damages when same was not pleaded and particularized as required by law.

It is trite that Court is strictly bound by the case presented to it as postulated on the pleadings of the parties. Thus parties are bound by their pleadings just as the Court seized of the matter is bound to make its findings only within the scope of the parties’ case as pleaded. It does not lie in the province or powers of the Court to make case for the parties. ​Special damages are the actual, but not necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the case that is, because of special circumstances or conditions.

See AHMED & 2 ORS v. CBN (2012) 7 SC (Pt. II) 1 at 26. Special damages are such damages as the law will not infer from the nature of the act and do not follow in ordinary course but are exceptional in character and therefore they must be claimed specially and proved strictly. They denote those pecuniary losses which have crystallized in terms of cash and value in trial. See KALU v. MBUKO (1988) 3 NWLR (Pt. 80) 86 at 90.

Special damages are such that the law will not infer from the nature of the act complained of, they must be specifically pleaded and strictly proven, all the losses claimed on every item must be concrete in terms and value before trial. They do not flow in the ordinary course. See ANYAEJI MARY ANDREW V. MTN NIGERIA COMMUNICATIONS LIMITED (2016) LPELR-41181 (CA) Pages 14-15. The reliefs sought by the Respondent at the lower Court against the Appellant as per his Amended Statement of Claim dated 19th day of November, 2014 have been reproduced earlier by this Court in the course of this judgment.

The said reliefs can also be found on pages 1-2 of the Appellant’s Brief of Argument. ​The reliefs as granted by the lower Court can be found on page 382 of the record where the learned trial Judge in his judgment stated: ‘’The plaintiff is entitled to the reliefs claimed in paragraph 12 (a) (b) and (c) of the amended statement of claim filed on 19th June, 2016. For avoidance of doubts, judgment is entered in favour of the plaintiff against the defendant in the sum of thirty-one million Naira (N31,000,000.00) only.

The 23% interest is captured within the general damages awarded in the judgment sum. A cursory look at the reliefs granted in Respondent’s favour in paragraph 12 (a), (b) and (c) of the said judgment at page 382 of the record shows that the Respondent’s claim granted was for special damages which was not particularize and strictly pleaded and was not proved. The law is settled that special damages must not only be specifically pleaded with relevant particulars, but must also be strictly proven with credible evidence. Without proof, the Court cannot award special damages.

See HON.EZE HERBERT OSUJI & ANOR v. ANTHONY ISIOCHA (1989) LPELR-2815(SC) Page 12.

Where the Court below erred in assessment of damages by basing its award on wrong principles of law, such award would be interfered with by the appellate Court. In the instant appeal, the learned trial Judge with respect was not entitled to embark upon his own assessment of special damages using his own conceived perimeter in place of evidence, the amount claimed as special damages was not proved thus issue four is resolved in favour of the Appellant.

ISSUE FIVE: Whether the learned trial Judge was right to have awarded the sum of N31,000,000.00 (Thirty one Million Naira) only Special and general damages because the case of the Respondent was not denied when the Plaintiff has not proved his case to be entitled to the judgment of the honourable Court.

At page 382 of the record, the learned trial Judge in granting the reliefs sought by the Respondent held: ‘’The plaintiff is therefore entitled to the reliefs claimed as no defence has been validly filed before this Court or evidence adduced by the defendant’’ ​The position of the law as stated by the Appellant’s Counsel is that it is the duty of a party to plead and lead evidence on material facts to entitle him to judgment, even where the defendant has failed to rebut the case of the plaintiff, the Plaintiff is duty bound to prove his case by credible evidence and succeed on the strength of his case and not on the weakness of the defence.

This Court in SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU (2013) LPELR-21414 (CA) Pages 18-19 Per MBABA, JCA stated: ‘’The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet v. INEC (2011) All FWLR (Pt. 565) 203 ‘’The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.’’ Nzeribe v. Dave Engr. Co. Ltd (1994) 8 NWLR (Pt. 361) 124.

But because a plaintiff has the duty to prove his claims on the strength of his own case, the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proven the claim. Elias v. Omo-Bare (1982) LPELR-SC 41/1981; (1982) ALL NLR 75; Shittu v. Olawumi (2011) LPELR-CA/AE/38/2010; Alao v. Akano (2005) 11 ALL NWLR (Pt. 935) 160; see also Ogunyomi v. Ogundipe ​(2011) All FWLR (Pt. 594) 188, Where it was held. ‘’It is the duty of the Appellants as plaintiffs in the lower Court to prove their case….

And it is a notorious principle of law that in so doing, they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants.’’ The fact that the Appellant did not file a defence at the lower Court did not ease the burden on the Respondent to prove his claim Exhibit ANT 1 which was the valuation report was wrongly admitted by the lower Court as it was produced during the pendency of the suit in contravention of Section 83 (3) of the Evidence Act, the Respondent’s claim for the award of special damages against the Appellant at the lower Court for the destruction of economic crops was not proved.

It is trite law that special damages must not only be specifically pleaded with relevant particulars but must be strictly proved with credible evidence. Without such proof, no special damages though pleaded can be awarded. See Alhaji Ahmadu Gari v Seirafina Nigeria Limited & Anor (2007) LPELR-8397 (CA) Page 32. The Respondent having failed to prove his claim by credible evidence at the lower Court this issue is hereby resolved in favour of the Appellant.

ISSUE SIX: Whether or not it does not amount to double compensation to award N5,000,000.00 (Five Million Naira) General damages after awarding N26,000,000.00 (Twenty Six Million Naira) only for the same. The complaint of the Appellant on this issue is the award of double compensation against him in respect of the same trespass on the land. Compensation is the remuneration or satisfaction for injury or damage of every description. For a party to be entitled to compensation it has to be proved that he suffered injury or damage to the satisfaction of the Court.

The settled position of the law which remains inviolate is that a Court will not award double compensation as damages against the same misdeed. See UNION BANK v. EMOLE (2001) 12 S.C.N.J 74 at 89. In ALHAJI ISIYAKU YAKUBU v. ADAMAWA STATE GOVERNMENT & ORS (2020) LPELR-51114 (CA) Pages 39-40 Per BAYERO, JCA Stated: ‘’The law frowns at award of double compensation. It is the law that where a party has been compensated fully under specific claims, it would be most inappropriate to compensate him again under general damages as that would amount to double compensation.

It is an established principle that if a plaintiff recovers in full under special damages, he cannot be entitled to general damages for that would amount to double compensation. See the case of U.T.C. (Nig.) Plc v. Philips (2012) 6 NWLR (Pt. 1295) 136 at 184.’’ Flowing from the above it is wrong for the learned trial Judge to have awarded the sum of N5,000,000.00 (Five Million Naira) as general damages after awarding special damages of N26,000,000.00 as that was tantamount to double compensation. I resolve issue six in favour of the Appellant.

ISSUE SEVEN: Whether from the totality of evidence adduced at the trial Court, the judgment of the learned trial Judge is not against the weight of evidence? Evaluation of evidence is the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See OYEKOLA v.

AJIBADE (2004) 17 NWLR (Pt.902) 356 at 379. In Mrs. ELIZEBETH IRABOR ZACCALA v. MR. KINSLEY EDOSA & ANOR (2018) 6 NWLR (Pt. 1616) 528 at 545 paragraphs B-D Per M.D. MUHAMMAD, JSC Stated ‘’It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the advantage it has of seeing and from observation of the witnesses, making impressions as they testified.

Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re-appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v.

Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.’’ ​It must be born in mind that it is not every error or slip by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. I believe the best starting point towards a just determination of this issue is to examine Exhibit ANT 1 vis-à-vis paragraph 12 (a) of the Respondent’s amended statement of claim.

The amount stated on assessment of compensation in Exhibit ANT 1 is N15,919,295.26 (Fifteen Million, Nine Hundred and Ninety Five Naira, Twenty Six Kobo) only in the valuation certificate tendered by PW II dated 31st day of January, 2012. See page 275 of the record. In paragraph 12 (a) of the Respondent’s amended statement of claim dated and filed on 19th day of November 2014 the Respondent claimed N26,000,000.00 (Twenty Six Million Naira) as compensation. Exhibit ANT 1 is at variance with paragraph 12 (a) of the Respondent’s amended statement of claim.

When evidence is at variance with pleadings it goes to no issue.

An averment of fact in pleadings is not evidence and can never be so construed. It has to be proved by evidence. On this note, I agree with the Appellant that it is not in all cases that when the defendant failed to rebut the evidence of the plaintiff he will be entitled to judgment especially when the evidence of the plaintiff has been demolished or destroyed through cross-examination and/or the pleadings of the plaintiff is deficient and created doubts which made the case of the plaintiff unreliable, the defendant’s oral evidence is unnecessary.

The Supreme Court in MARTCHEM INDUSTRIES NIGERIA LTD V. M.F.

KENT WEST AFRICA LTD (2005) LPELR-1842 (SC) Pages 11-12 Per Oguntade, JSC (as he then was) Stated: ‘’The Court below in reacting to the very unsatisfactory manner in which the trial Court gave judgment in favour of the plaintiff said: ‘’I agree with the submission of the learned Counsel for the Appellant that even where the evidence is one way, in that the other party did not lead evidence in proof of averments in its statement of defence, the Court is not relieved of its bounding duty to consider and evaluate the body of evidence adduced by the plaintiff before ascribing probative value to the pieces of evidence tendered.

The trial Court must ascertain that the evidence before it is credible, admissible and goes into issue before giving judgment to the plaintiff. It is not sufficient, even where the evidence is only one way, as in this case, to give judgment to the plaintiff by merely summarizing the evidence adduced. The learned trial Judge is required to ascribe probative value to the witnesses, review and evaluate the evidence tendered before him. It is only after this exercise that the plaintiff will be entitled to judgment: Okoebor v. Police Council (1998) 9 NWLR (Pt. 566) 534, 544-5; Haruna v.

Salau (1998) 7 NWLR (Pt. 559) 653 and Nwabuoku v. Ottih (1961) All NLR 487, Balogun v. United Bank of West Africa (1992) 6 NWLR (Pt. 247) 336, 354.’’ I think that the Court below was right in the view it expressed in the passage reproduced above.

Even if, as was the case here, the evidence in a case went in one direction in that it was unchallenged, the trial Judge is still expected to examine whether or not the unchallenged evidence was sufficient to establish the claims made by the party in whose favour the unchallenged evidence was given.” ​In the present appeal, the learned trial Judge also awarded double compensation in respect of the sum claimed when he awarded the sum of N26,000,000.00 (Twenty Six Million) claimed by the Respondent as special damages which was not proved and the sum N5,000,000.00 (Five Million Naira) as general damages in respect of the same claim.

See page 382 of the record, this is unwarranted, the law frowns at award of double compensation. See ALHAJI ISIYAKU YAKUBU V. ADAMAWA STATE GOVERNMENT & ORS (Supra) page 39. Taking all these factors into consideration it is glaring that the learned trial Judge did not properly evaluate the evidence before him thus issue seven is hereby resolved in favour of the Appellant. Having resolved issues 1-7 in favour of the Appellant, it means that this appeal succeeds and is allowed the judgment of the Benue State High Court of Justice, Makurdi Judicial Division delivered by Hon. Justice M.A.

KPAMBESE on the 6th day of February, 2017 in suit No MHC/159/11 is HEREBY set aside. Parties are to bear costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in complete agreement with his reasoning and conclusions on all the issues distilled for determination. Having resolved Issues 1-7 in favour of the Appellant it means that this appeal succeeds and is allowed. I also abide by the consequential order setting aside the decision of the lower Court as well as the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I entirely agree with the reasoning and conclusion reached therein. My learned brother has properly in my respected view dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is meritorious and should be allowed. I shall make few comments for the sake of emphasis.

Under Issue One, the Appellant questions the propriety of the trial Court admitting “Exhibit ANT 1” in evidence in flagrant breach of Section 83 (3) of the Evidence Act, 2011.

Section 83(3) & (4) of the Evidence Act, 2011 provides thus: (3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute is to any fact which the statement might tend to establish. (4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible The import of the Section is that documents made during the course of proceedings are generally not admissible in evidence.

However, there is a proviso therein which I believe will be suitably applied in resolving this issue; the document must be made by a person interested in the proceedings, and a person interested was defined in the case of UTC (NIG) PLC V LAWAL (2013) LPELR-23002 (SC) thus: “Meaning of “person interested” a “person interested” is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends.

It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means “an interest in the legal sense, which imports something to be gained or lost.” See; Holton V. Holton (1946) 2 All ER 534 at 535; Nigeria Social Insurance Trust V. Klifco Nigeria Ltd (2010) 13 NWLR (Pt.1211)307; (2010) 8 SCM 212.” Per ARIWOOLA, J.S.C. The said “Exhibit ANT 1” was prepared and signed by Abu Jimin Umoru an associate in the Firm of Ngobar & Co. on the authority and recommendation of the Respondent in the cause of the proceeding.

Then the exhibit was made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. The said exhibit was not made by the State Government officials who did so in the course of their official duties with nothing personal but purely official to even warrant the exception that Government officials doing their duties cannot fall into the category of persons interested, see B.B.

APUGO V O.H.M.B(2016) 13 NWLR (Pt.1529) 206; PETERSIDE & ORS V WABARA & ORS (2010) LPELR-4847(CA). ​I have gone ahead to produce Section 83(4) because even if the trial Judge in his erroneous finding believes for reasons unknown to our laws that “Exhibit ANT 1” is admissible, he would have averted his mind to the provision of Section 83(4) which is very clear and was not considered by the trial Judge. It was a selective and erroneous application of Subsection 3 without considering Subsection 4 and that is injudicious and made the decision arrived at perverse. Doing so made him fall into error.

The document was made on the recommendation of the Respondent. A person not just interested but who stand to benefit from the content of the document. Therefore it was wrong to admit the exhibit in evidence. It therefore follows as it is the law that, inadmissible evidence ought not be admitted even by mistake, where it is admitted, as in this case and the trial Court failed to expunge the said exhibit, this Court ought to expunge same, or better still consider the case on the basis of legally admissible evidence only. See ABUBAKAR VS. CHUKS (2007) MJSC 190 AT 217 OWONIYI VS.

OMOTOSHO (1961) ALL NLR 304.

The Appellant objected to the admissibility of “EXHIBIT ANT 1”, even if the Appellant did not object to the admissibility, it is trite law that the admissibility of documents without objection does not foreclose the power of the Court to expunge it from its records. It is for this reason that the Supreme Court held in I.B.W.A. VS. IMANO LTD, (2001) 3 SCNJ 160 AT 177 thus; “It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence.

Accordingly, where a trial Court inadvertently admits evidence which is absolutely inadmissibly, it has a duty generally not to act upon it but rather to discountenance it. So too if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence.” More so, special damages are such damages the law will not infer from the nature of the act complained of.

It is dependent upon exalt computation and calculation of figures from special items that need to be proved. Special damages by its nature must be particularized in the statement of claim and supported by evidence before the Court, see GAMBORUMA VS. BORNO (1997) 3 NWLR (PT.495) 530; MOMODU VS. UNIVERSITY OF BENIN (1997) 7 NWLR (PT. 512) 325, and ONYIORAH V ONYIORAH (2019) LPELR-49096(SC) wherein the apex Court Per RHODES-VIVOUR, J.S.C. held thus; “Special damages must be specially pleaded and strictly proved by the claimant.

To succeed in a claim for special damages the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the Court as to how the sum claimed as special damages was quantified.” In this appeal, all the losses claimed on every economic tree and other items must be concrete in terms and value before trial, since the losses do not flow from the ordinary course of trespass.

The Respondent claimed the sum of N26,000,000.00 as compensation for unauthorized acts of trespass and destruction of economic crops on the respondent’s family land without specifically pleading the economic crops and others valuables allegedly destroyed and the value of the said damages caused. The Respondent failed to particularized and strictly plead with credible evidence, his claim for special damages.

I have gone through the length and breadth of the Respondent’s case, and at best the only evidence that the Respondent set out to establish his claim is the surveyor’s report that was smuggled in while the trial was underway. I have found that the said surveyor’s report “Exhibit ANT 1” was wrongly admitted by the trial Judge and any claim drawing life from the said exhibit must be dismissed. ​It is for these reasons and others elaborately set out in the leading judgment that I, also find that the appeal is meritorious and is allowed. The judgment of the trial Court delivered by Hon.

Justice M.A IKPAMBESE dated 6th day of February, 2017 is hereby set aside.

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J. Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020.

The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions. ​The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation.

On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail.

The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:- “Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders – (1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions- (a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.

Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal) Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.

The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows: GROUND ONE The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.

GROUND TWO The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant. GROUND THREE The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.

GROUND FOUR The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015. GROUND FIVE The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V.

Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223. GROUND SIX The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.

GROUND SEVEN The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million. GROUND EIGHT The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.

GROUND NINE The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted. GROUND TEN The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction. GROUND TWELVE The judgment is unreasonable and unwarranted and should be set aside. The Record of Appeal was transmitted to this Court on 03/12/2020. The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised: (1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1) (2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6). (3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4) (4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11). (5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10) (6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12) In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus: Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court.

He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45. Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted.

He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter.

He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc.

He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V.

UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard.

Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure.

He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account.

Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice.

Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41.

Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V.

MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal.

In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder. ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6 At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case.

He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings.

The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020. On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings.

According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020. Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:- “My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court.

That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal) Then the trial Court in its Bench Ruling held thus:- “This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:- “We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.

We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom. It is in the light of the above that we humbly apply for certified true copies of the under listed documents. i. bail bond, ii. recognizance, iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail, iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.” (see pages 194 – 195 of the Record of Appeal) The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:- “A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA.

In fact there is no provision in ACJA that supports the letter. Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:- (9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court.

He shall then be released from custody. Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No.

KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody: Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” ​ Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit.

The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.

The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.

Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.

An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume.

By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:- “The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court.

The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant.

See Section 353 (4) ACJA.” By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume.

And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:- “although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation.

However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.” By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice.

The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel.

However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended).

The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings.

In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence. The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:- “Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders- (1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria.

That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody. (b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court.

The said Section 179(1) ACJA, 2015 provides:- “Where it is proved to the satisfaction of the Court by which a recognizance has been taken or, when the recognizance bond is for appearance before a Court and it is proved to the satisfaction of the Court that a recognizance has been forfeited, the Court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.” Section 179 (1) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed.

And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.” If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional. Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums.

It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:- Paragraph (7) provides:- “That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant Paragraph (8)- The property used in the fulfillment of the Bail term belongs to me personally Paragraph (9)- That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default” Paragraph (10)- That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria. I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause.

The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223.

This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever.

In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed. The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto. No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA. ​ My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court.

That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae. It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein. ​ I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.

Judgment

BATURE ISAH GAFAI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 13th of September, 2019 in Suit No. FCT/HC/CV/1854/2019 in which an order for recovery of the sum of N285,053,354 from the Appellants was entered by the Court in favour of the Respondent.

As gleaned from the Record of Appeal, the Respondent had approached the lower Court by a suit under the Undefended List disclosing altogether but stated in brief here that sometime in December 2016 he placed the sum of N200,600,000.00 (Two Hundred Million, Six Hundred Thousand Naira) in a fixed deposit account with the 1st Appellant a microfinance bank for a period of 180 days at an agreed interest rate of 20% which however the 1st Appellant reneged entirely by refusing to pay the Respondent both the deposit and interest sum from the maturity date, despite several failed assurances by the 1st Appellant till date.

The Appellants responded to the suit by causing to be filed a Notice of Conditional Appearance, a Notice of Preliminary Objection and a Notice of Intention to Defend the suit.

In its judgment, the lower Court considered the arguments of the parties on the Appellants’ Preliminary Objection which was premised on the ground that the 2nd to 8th Appellants being Directors of the 1st Appellant cannot in law be personally liable for the 1st Appellant’s contract with the Respondent which therefore renders the suit as one with no cognizable cause of action against them, the effect of which is that the lower Court lacked jurisdiction to entertain the suit against them. The lower Court found no merit in the Preliminary Objection and thus discountenanced same.

Proceeding into main suit, it further found the Appellants’ facts in the affidavit in support of their Notice of Intention to Defend the suit as, in its words, “…incoherent, evasive, scandalous and thoroughly unconscionable…”.

In consequence, the lower Court discountenanced the Appellants’ Notice of Intention to Defend the suit, considered the Respondent’s suit on its merit and entered judgment in part only against the Appellants in the sum of N285,053,345.00 (Two Hundred and Eighty-Five Million, Fifty-Three Thousand, Three Hundred and Forty-Five Naira) and a consequential order on the Respondent to prepare to prove his claim for interest for the period covering February 2018 to April 30, 2019 which the Respondent claimed to have accrued in the sum of N66,572,447.00 (Sixty Six Million, Five Hundred and Seventy-Two Thousand, Four Hundred and Forty-Seven Naira).

Dissatisfied with the judgment, the Appellants lodged this Appeal vide a Notice of Appeal filed on the 25th of October, 2019 which was however by leave of this Court granted on the 20th of October, 2021 amended by substituting the name of the Respondent Mr. Idongesit Okon Nkanga (who passed away in the course of this appeal) with the name of the deceased’s wife “MRS MOSUNSOLA OLUWAFUNMILOLA IDONGESIT OKON NKANGA” as the Respondent.

The Amended Notice of Appeal was filed on the 8th of November, 2021 in which the Appellant complained against the Judgment on four grounds as follows: “GROUND 1 The Learned trial Judge erred in law when he lifted the Veil of Incorporation of the 1st Respondent on the grounds that its Directors had been fraudulent, and thereby occasioned a grave miscarriage of justice.

GROUND 2 The learned trial Judge erred in law when he dismissed the Preliminary Objection dated 11th June, 2019 brought by the Appellants as Defendants/Applicants which objection was premised on the ground that the 2nd – 8th Appellants were not necessary parties to the action, which occasioned a grave miscarriage of justice. GROUND 3 The learned trial Judge erred in law when it entered judgment for the Respondent in the sum of N285,053,345.00 against the Appellants jointly and severally.

GROUND 4 The judgment entered by the trial Court was given against the weight of evidence.” The respective particulars enumerated under these grounds are noted. See pages 79 – 83 of the Additional Record of Appeal. It is from these grounds that the Appellants’ learned counsel Ikem G. Ogugua Esq. formulated two issues for determination as shown in their Brief of Argument filed on the 14th of January 2022 on: “a. Whether there was allegation of fraud submitted before the trial Court by the Respondent. [Distilled from Ground 1 of the Notice and Grounds of Appeal] b.

Whether the 2nd – 8th Appellants who are agents of the 1st Appellant are necessary party to the suit and Jointly liable to the Respondent. [Distilled from Grounds 2 and 3 of the Grounds and Notice of Appeal]” For the Respondent, her learned counsel Isaac Okpanachi Esq., did not find a need to formulate any other in the Respondent’s brief and thus adopted and argued on the Appellants’ issues too in line with the Respondent’s case.

Traversing the Appellants’ arguments under their first issue as canvassed at pages 3 to 11 of their brief, it is, to say the least, surprising that their learned counsel did not deem it necessary or even desirable to refer to any particular page or portion of the lower Court’s judgment containing specific finding or decision which the Appellants seek to challenge. It is even more disturbing as the Judgment is fairly lengthy containing many related findings and holdings on or in relation to the Appellants’ first issue for determination (supra).

It is thus difficult to discern precisely or differentiate which among those findings or holdings the Appellants are challenging. Neither the Grounds of Appeal nor their particulars have been helpful too. In appellate practice, it is trite that issues for determination must be clearly related to and be founded on the specific findings or ratio decidendi in the judgment on appeal. In other words, the issues for determination must be distilled from the Grounds of Appeal which in turn must also be predicated upon the ratio(s) decidendi of the particular decision complained against.

See Archinga vs. Attorney General of Akwa Ibom State (2015) 6 NWLR (Pt. 1454) 1, Shipcare Nig. Ltd Owners of the M/T African Hyathinth vs. The Owner or the M/V Fortuno (2011) 7 NWLR (Pt. 1246) 205, Shettima & Anor vs. Goni & Ors (2011) LPELR – 417 (SC); Musaconi Ltd vs. Aspinall (2013) LPELR – 20745 (SC); Nze vs. Aribe (2016) LPELR – 40617 (CA). Ordinarily, the observed apparent defect in the Appellants’ first issue would have ended it all at that point.

However, in order to attain substantial justice on the Appellants’ complaints in the appeal, I have strived to identify from the judgment some particular portions(s) which seem to fit into the Appellants’ arguments without jeopardizing the Respondent’s position who in any case also adopted the Appellants’ blunder as well because their learned counsel too never referred to or mentioned any specific finding or holding of the lower Court that the Respondent is seeking to support by the arguments under the issue.

It should not be forgotten that the Appellants’ first issue essentially challenges the lower Court’s finding(s) that as Directors of the 1st Appellant, the 2nd to 8th Appellants had been fraudulent in the dealings between the 1st Appellant and the Respondent which the Court found as sufficient reason to lift the 1st Appellant’s veil of incorporation and held them liable in that capacity.

It is argued for the Appellants that neither was the allegation of fraud submitted to the lower Court to warrant its findings on the fraudulent dealings it ascribed to the 2nd to 8th Appellants nor could they in any case be validly held liable for the acts of the 1st Appellant particularly in its contract with the Respondent. That is the substrum of the Appellants’ arguments under this issue. I note yet another line of disjointed argument under this issue in relation to the joinder of the 2nd to 8th Appellants as proper parties in the trial.

Let me say straight away that this argument is one that is neither hinted in the Appellants’ first Ground of Appeal (supra) from which the Issue is distilled nor deducible from the Particulars clumsily listed thereunder as numbers “(d), (b), (c), (d)”. Having not been rooted in or linked to the Ground(s), it is said to have been distilled from, that line of argument is discountenanced.

The same fate also befalls the other line of argument under the same Issue by which the Appellants introduced and canvassed arguments questioning the lower Court’s decision on their Notice of Preliminary Objection being one that is completely unconnected to their said first Ground of Appeal. See Thompson vs. Akingbehin (2021) 16 NWLR (Pt. 1803), 285 at 312 to 313 paras H – E.

What I can only add from the Appellants’ arguments on this issue, even if for emphasis only, is the Appellants’ insistence that the lower Court wrongly found the 2nd to 8th Appellants fraudulent in the circumstances and without affording them an opportunity to be heard on it. Reliance is placed on the decisions of this Court in FDB Financial Services Ltd vs. Adesola (2000) 8 NWLR (Pt. 668), 170, Alarapon & Ors vs. PRP & Ors (2019) LPELR – 47052 (CA) among others in support of the argument under this issue.

For the Respondent, it is argued that by virtue of Sections 308, 309 and 316 of the Companies and Allied/Matters Act 2020, if a company, the 1st Appellant in this case, with intent to defraud fails to apply the money or other property for the purpose it was received, every director of the company who is in default is personally liable, without diminishing the liability of the company itself; placing reliance on the decisions by this Court in Public Securities Ltd vs. JEFIA (supra), Eboni Finance & Securities Ltd vs. Wole-Ojo Tech.

Services Ltd (1996) 7 NWLR (Pt. 46£), 464 at 478 para A – D and the Apex Court’s decision in Trenco Nig Ltd vs. ACB & Anor (1978) NSCC 220 at 250. Learned counsel submitted that it is unjust for a party such as the Appellants to rely on the doctrine of corporate liability in the facts and circumstances as in the Respondent’s case.

It is further argued that the Appellants who in their own affidavit presented contradictory, dishonest facts cannot now turn around to claim denial of hearing, more particularly as the fraud by the Appellants is so manifest for example by inter alia issuing postdated checques on two different occasions to the Respondent knowing that they had no money in their bank account which in itself is easily an offence under the provisions of Section 1 of the Dishonoured Cheques Offences Act 1977 and Section 311 of the Penal Code. ​ As can be seen, the entire arguments for the parties on this Issue revolve around the real or imagined protection or liability of the 2nd to 8th Appellants for the acts of the 1st Appellant, the former being the latter’s Directors.

Undeniably, the 1st Appellant is a corporate entity, a juristic person in law, different from its members, subscribers or shareholders. For good reasons, the law has conferred upon it enormous immunity and privilege owing to its basic gullible feature of living a life without a mind or brain, without hands or legs, without a body or physical form.

It is by the undaunting force of the law at the bottom of its creation, and protected through its growth or promotion to a functional juristic personality that it exists differently from, though not in isolation of its human components which reside mainly in its directors. That is the postulate in the doctrine of corporate personality which appears to have originated and gained persistent legitimacy for one hundred and twenty-five years now from the English decision in Salomon vs Salomon (1897) 2 AC 22. It applies in Nigeria as well. See Section 42 of the Companies and Allied Matters Act 2020.

In Adamu Muhammad Gbedu & Ors vs. Joseph I. Itie (Liquidator) (2020) 3 NWLR (Pt. 1710), 104 at 124 para C – D, the Supreme Court held that: “Company law derives from Common Law and that includes the Companies and Allied Matters Act, CAMA, applicable in Nigeria.” Its application in Nigeria has been consistently upheld by both the Apex Court and this Court. See Marina Nominees Ltd vs. FBIR (1986) LPELR – 1839 (SC), Ramanchandani vs. Ekpenyong Trenco (Nig) Ltd vs. African Real Estate & Investment Co. Ltd & Anor (1978) LPELR 33264 (SC), United Cement Co.

Ltd vs Libend Group Ltd & Anor (S016) LPELR – 42038 (SC).

As in every rule however, there are recognized exceptions, premised on the legal reality that a company though an artificial person in the eyes of the law is however composed of and piloted by its human component, i.e. its Directors and Managers who act as the directing mind of the company by their action and inaction for the company. When there occurs infractions against the company, it is the Directors who rise to the occasion in its defence, in the same way that they bear the responsibility and liability in defence of the excesses or infractions by the company.

Such is the inextricable, generally harmonious relationship between a company and its Directors. By the very nature of this relationship, there developed necessary legal mechanisms as recognized exceptions to the doctrine of the separate legal personality of a company particularly in ostensible acts of the company but which in reality are acts of its Directors to lift the veil of the company’s incorporation in order to see those behind the excesses or inactions of the company that are put to question. The exceptions are enshrined in law and in equity and applied in our Courts.

As referred by the learned counsel for the Respondent, Section 316 of CAMA 2020 provides that: “Where a company – (a) receives money by way of loan for specific purpose; (b) receives money or other property by way of advance payment for the execution of a contract or project; or (c) with intent to defraud, fails to apply the money or other property for the purpose for which it was received, every director or other officer of the company who is in default is personally liable to the party from whom the money or property was received for a refund of the money or property so received and not applied for the purpose for which it was received and nothing in this section affects the liability of the company itself.” The Appellants’ complaint here is that the lower Court was wrong when it lifted the 1st Appellant’s veil of incorporation on the ground that its Directors i.e. the 2nd to 8th Appellants had been fraudulent. ​ To begin with, as clearly enshrined in these provisions, fraud is certainly a ground on which the 1st Appellant’s veil may be lawfully lifted in order to hold its Directors personally liable to the party from whom the money was received.

In my humble view, it is not only good law but good sense to treat a company and its Directors in line with the provisions of Section 316 of CAMA (supra) firstly because they are the actors in the company’s dealings and secondly to protect the company from the excesses of its unscrupulous, fraudulent Directors. It is in this premise that the lower Court lifted the veil of the 1st Appellant’s incorporation in accordance with the provisions of Section 316 of CAMA 2020.

More importantly, I have been unable to find any misapplication of the law and the facts considered by the lower Court in arriving at the finding that the 2nd to 8th Appellants were indeed fraudulent in their dealing with the Respondent from day one. This view can be better appreciated through the findings in the Judgment of the lower Court as follows: “The Claimant’s case is that up till the time of presenting the 1st Defendant was yet to pay him a dime despite the above assurances.

However, in a curious and evasive twist the Defendants at paragraph 10 of the affidavit in support of notice of intention to defendant stated as follows: ’’That paragraph 3 (o) of the affidavit in support of the Writ of summons is admitted only to the extent that the sum of N285, 053, 345.00 (Two Hundred and Eighty-Five Million, Fifty-Three Thousand and Forty-Five Naira) only together with the accrued interest since 15th March, 2018 till date only being claimed as the 1st defendant’s indebtedness to the claim is arbitrary and does not represent the actual state of the 1st Defendant’s indebtedness as same cannot be claimed under the agreement between the parties same being outside the tenor of the agreement.” This line of defence is to my mind incoherent, evasive, scandalous and thoroughly unconscionable especially when the 1st Defendant had earlier written to admit liability in the sum of N285,053,345.00 (Two Hundred and Eighty-Five Million, Fifty-Three Thousand, Three Hundred and Forty-Five Naira).

I need to remind the Defendants that it was not the Claimant that carne up with the figure. It was indeed the 1st Defendant that put the figure forward as the total sum due to the Claimant as at 28th February, 2018. It is therefore unacceptable for the said Defendants to now attempt to discredit what it authored in the first place. No Court or Tribunal will welcome such line of defence. What I am saying in essence is that the Defendant, cannot approbate and reprobate at the same time. They are bound by Exhibits ON5 which is their i.e. the Defendants’ own document.

It is worthy of note that cheques were presented to the Claimant at different times but he got no value for any of them. Interestingly the Defendants did not put anything forward by way of their bank statements to show that funds moved from any of their accounts to the Claimant. From the correspondence with the Claimant the Defendants’ line of defence is that they have invested the Claimant’s fund and waiting to be paid by the Federal Government of Nigeria. Paragraph 12 of their affidavit speaks to this point.

It is hereby reproduced: “That further to the above paragraph 12 (sic), the 1st Defendant maintains that she in her discretion invested several sums of money in a business venture which yielded so much profit but which stun owed the 1st Defendant by the Federal Government of Nigeria has remained unpaid up till this day which fact was duly disclosed to the Claimant’s counsel and which has necessitated the institution of SUIT NO FCT/HC/ZOO1/ZO19 BETWEEN: KOLAWOLE OLOWOOKERE VS ATTORNEY GENERAL OF THE FEDERATION AND MINISTER OF JUSTICE B ANOR by the 1st Defendant’s counsel.

A certified true copy of the said writ of summons and other processes duly filed are hereby attached and marked Exhibit NCMF X.” It is however curious that the Defendants who chimed that the Federal Government of Nigeria is indebted to them exhibited a very strange document christened as Exhibit NCMF 1 to prove that point. I have carefully perused the exhibit and it is clear to me that it has nothing to do with the relationship between the Claimant and the Defendants. In fact, the Exhibit is 3 suit for recovery of professional fee instituted by Mr.

Kayode Olowookere Esq or counsel for the Defendants. What that means is that the Defendants are simply playing pranks with the Court as it has no defence to this action.

Whichever way Exhibit NCMF 1 is viewed it is not relevant to the proceedings and cannot Be used by the Defendants to justify their failure to repay the Claimant’s investment with the accrued interest.” See pages 74 to 76 of the Additional Record. ​ Furthermore, it seems to me that the vehement insistence of the 2nd to 8th Appellants on pushing the entire liability on the 1st Appellant is clearly because the 1st Appellant, as contended by the Respondent’s counsel, has since become moribund; a contention the Appellants have found impossible to deny.

With respects to the Appellants’ learned counsel, that line of defence only reinforces the lower Court’s finding that the Appellants have been fraudulent because its ultimate effect is to evade the repayment of the debt permanently as the 1st Appellant on whom they seek to push the debt liability is to their full knowledge no longer functional; in effect crushing the Respondent to Ground Zero under the cover of Salomon vs. Salomon (supra), as it were, contrary to the provisions of Section 316 of CAMA (supra) and the demands of equity.

The findings and decision of the lower Court in lifting the veil of the 1st Appellant in the circumstances are unassailable. With respects, I wish the learned counsel for the Appellants has had time to read the decisions in the three cases referred by his learned friend for the Respondent; namely Public Finance Securities Ltd vs. JEFIA (supra), Eboni Finance GT Securities Ltd vs. Wole-Ojo Tech. Service Ltd (supra) and Trenco Nig. Ltd vs.

ACE (supra) as that would have saved him the stress of attempting to distinguish them from this appeal as he sought to do in the Appellants’ Reply Brief because they are in all fours with the cases of the parties herein.

To drive this point home, I will reproduce the portion referred by the Respondent’s counsel from the JEFIA case (supra) here thus: “It is patently clear that Section 290 of the Companies and Allied Matters Act 1990 is wide enough to cover the situation herein whereas borne by the record, the 2nd appellant, as the Chairman and Managing Director of the 1st appellant Company had recklessly refused to attend Court to explain or defend the failed investment of the respondent, but instead fabricated a sham defence “that the 1st defendant in common with other Ranks and Investment Companies, suffered a decline in Business fortunes due to political crises and orchestrated blackmail by some fraudulent staffers.

The learned trial Judge, at page 39 lines 2 to 11 of the record said:- “The money invested by the plaintiff represents a loan to the 1st defendant for the sole purpose of yielding interest. The Company is not willing to pay and says that it is in some distress and has resorted to all sorts of subterfuge in order to avoid payment of the sum appearing on the Bond Certificates. I have already shown that this is only but a sham and fraudulent defence that is put forward. The question is what did they do with the money?

It is fraud in my view to establish a Financial Institution that collects money from the general public by way of investments and turn around to disappoint their legitimate expectation under the guise of having a general decline in business.” The above quoted passage from the judgment of the trial Court cannot be faulted as it is supported by both the affidavit and oral evidence contained in the record of proceedings, I agree with him.

I also agree with him that this is a proper case to invoke the provisions of Section 290 of the Companies and Allied Matters Decree 1990 to protect the respondent and hold the 1990 appellant liable jointly and severally with the 1st appellant for debt owed the respondent.” I had earlier hinted that the Appellants are in equity also bound to repay the 1st Appellant’s debt.

This is what preoccupied the mind of this Court also in the Eboni case (supra) referred by the Respondent’s learned counsel, where this Court reasoned and held thus: “Another point in this case is this: as the 1st and 2nd respondents have received the money, might equity not come to the rescue for unjust enrichment.

I think the principle of unjust enrichment which unfortunately is not well developed in English law as both in U.S., and Scotland should, of necessity be nurtured to growth in a new and complex society like ours where people can easily at a whiff of breath resort to law to ward off debt or other enrichments they have had, at the expense of the other. This is a specie of constructive trust which is an instrument which the Court of equity may employ to prevent undue enrichment.

I believe that when a person is holding tight that which is subject of equity he should not be allowed to hold it firmly. Therefore, where a party unjustly enriches himself at the expense of the plaintiff he must be made to disgorge it. Our legal system should at this instance lean more to U.S. law on this principle than in England where the principle is yet to assume a wider dimension. Thus Lord Porter in Reading v. A.G. (1951) A.C 5014 said My Lords – the exact status of the law of unjust enrichment is not yet assured.

It holds a predominant place in the law of Scotland and I think of the United States”. The premise behind the doctrine of restituting an unjust enrichment is that justice be done. That being the case, it seems to me that we ought to lean overly to U.S. legal practice to effectuate justice. Therefore, in consonance with the principles enshrined in the restitution a remedy shall be available whenever the defendant is unjustly enriched at the expense of the plaintiff.

In this case, the respondents must be made to vomit out what they have taken (unjustly).” In addition, the Apex Court’s decision in the Trenco case (supra) referred also by the Respondent’s counsel is no less relevant and binding on this Court as it is similarly in all fours with the present Appeal; more particularly on the line of failed exculpatory argument of the 2nd to 8th Appellants that the lower Court wrongly held them liable for the 1st Appellant’s debt. In my humble view, this Issue can only be and is resolved against the Appellants.

In their second issue, the Appellants have argued strenuously that the lower Court was wrong to have maintained the suit with the 2nd to 8th Appellants as parties although they were agents of a disclosed principal namely the 1st Appellant. It is argued further that the Respondent did not make any case against the 2nd to 8th Appellants to warrant their joinder as parties in the suit. Learned counsel referred to the decision of this Court in Global Soap & Detergent Industries Ltd & Ors vs.

Bello & Anor (2011) LPELR – 9029 (CA) and Ramon vs Adeleke & Ors (2019) LPELR – 50175 (CA) where this Court held that where an agent acted on behalf of a disclosed principal, he cannot be personally liable, unless it can be proved otherwise. Those are the main arguments under the Issue.

For the Respondent however, it is argued that although it is the correct position of the law that an agent of a disclosed principal cannot generally be sued or held personally liable, there have been long settled exceptions to that rule which include situations where statutory provisions make such agent liable e.g. under Sections 308, 309 and 316 of CAMA and Section 1 of the Dishonoured Cheques Act and secondly where the Court from the circumstances of a case makes the agent liable though the principal is named.

Learned counsel referred to the decisions of the Supreme Court in National Film Video Censor Board & Or Vs. Adegboyega & 2 Ors (2019) 4 NWLR (Pt. £662), 285 at 507 and COTECNA International Ltd vs. Church Gate Nig. Ltd (2010) 18 NWLR (Pt. 1225), 546 where the Supreme Court upheld the joinder of an employee and of an agent respectively although of named principals; to buttress his submission on recognized exceptions to the rule that an agent of a disclosed principal can neither be sued nor held liable.

Learned counsel further argued that the 2nd to 8th Appellants are necessary parties without who the suit cannot be judiciously decided placing reliance on the Supreme Court’s decisions in Azubuike vs PDP (2014) 7 NWLR (Pt. 1406), 292 a 313 and Mbanefo vs. Molokwu (2014) 6 NWLR (Pt. 1406) 377 at 410 – 411.

In his Reply Brief, the Appellants’ counsel sought to distinguish the Supreme Court’s decision in the Censors Board case (supra) for the reason that the party joined in that appeal was wrongfully collecting money from people whereas the Appellants in this Appeal were merely acting within the instructions of the 1st Appellant. Needless to say but for emphasis, this reasoning is unacceptable in view of the earlier resolution of that argument in the contrary under the first Issue.

Strangely, the learned counsel avoided any argument or – even comment on the Respondent’s reliance on the provisions of Section 316 of CAMA which the Respondent argued made the Appellant’s parties on the facts in the suit. Firstly, the Appellants are parties in the suit by operation of law under Section 316 of CAMA (supra). Secondly, the two previous decisions of this Court referred by the learned counsel for the Appellants were not based on the provisions of Section 316 of CAMA. Thirdly, the Appellants are on the facts necessary parties without who the entire suit would be meaningless.

As laid down in several decisions by this Court and the Apex Court, from which I referred to the Apex Court’s decision in Azubuike vs.

PDP (supra) the questions to be answered before arriving at whether a party is a necessary party in a suit are: (a) Is the cause or matter liable to be defeated by the non-joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? (c) Is the 3rd party a person who should have been joined in the first instance? (d) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter?

From the facts detailed in the Respondent’s affidavit and its annexures in support of the Originating Summons found at pages 3 to 18 of the Additional Record which the Appellants’ evasive facts in their Notice of Intention to defend the suit found at pages 32 to 35 failed to controvert effectively, more particularly on their roles as directors of the 1st Appellant, the lower Court was right in refusing to strike out their names from the Suit as they sought by their Notice of Preliminary Objection, because all the above questions are, upon the credible evidence before the lower Court, easily answerable in the affirmative against the Appellants.

See also Biyu vs. Ibrahim (2006) 8 NWLR (Pt. 981), 1 at 35, Adefarasin vs. Dayekh ​(2007) 11 NWLR (Pt. 1044), 89 at 116 – 117, Jadesimi vs. Okotie-Eboh (1989) 4 NWLR (Pt. 113), 113 at 126. This issue is also resolved against the Appellants. In consequence, the Appellants’ two issues for determination as adopted and argued also by the Respondent, having been resolved against the Appellants, the appeal ends as one lacking in any merit and is accordingly dismissed. The judgment of the lower Court is affirmed. I award cost of Two Hundred Thousand Naira against the 2nd to 8th Appellants jointly.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Isa Bature Gafai, JCA. I am in agreement with the reasoning and conclusion which I adopt as mine. I therefore, agree that the appeal lacks merit and I hereby dismiss it. I abide by the consequential orders inclusive of the order as to costs as made in the lead judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I was privileged to read in advance a draft copy of the leading judgment just delivered by my noble lord, Isah Bature Gafai, JCA, and I am in complete agreement with the impeccable reasoning as marshalled out therein as well as the inescapable conclusion reached to the effect that the appeal lacks merit and is liable to be dismissed.

My Lords, proceedings under the undefended list procedure, as was commenced by the Respondent against the Appellants in the instant appeal before the lower Court to recover the total sum of N285, 053, 345. 00 by reason of the refusal of the 1st Appellant, of which the 2nd – 8th Appellants are the Directors, to pay over to the Respondent the sum of N200, 600, 000. 00 placed in a fixed deposit with the 1st Appellant for a period of 180 days at an agreed interest rate of 20%, is a strict one geared towards the expeditious dispensation of justice, devoid of unnecessary delays and undue technicalities, in cases where the Defendant really has no defence to the claim of the Claimant.

In Arcadia Petroleum Nig. Ltd & Anor V. Northside Apartment Ltd & Anor (2022) LPELR – 57506(CA), this Court per Sir Biobele Abraham Georgewill JCA had stated inter alia thus: “Under the Undefended List Procedure, going by the several judicial authorities on the essence of this procedure geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defense to the claim of the Claimant against him and for judgment to be entered if there be nothing worth being further investigated by the Court on the affidavit evidence of the parties.

It is to be noted here, and very pertinently too, that once the Claimant’s Suit is filed and or placed under the Undefended Cause List, the very straightforward, and if I dare say very simple uncomplicated procedure on the date fixed for hearing of the Suit filed or placed under the Undefended List, is that the Court would after hearing the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defense on the merit.

In arriving at such a finding, the Court would critically securitize and examine the affidavits and documentary Exhibits, if any, of the parties to determine at that stage if the Defendant has disclosed any defense on the merit or raised at least triable issue that would need to be further investigated into by the Court by way of a full hearing. However, where the Court finds that the Defendant has not disclose any defense on the merit or raised any triable issue, it is under a duty to proceed to enter judgment in favor of the Claimant against the Defendant, no more no less.

But, where the affidavit of the Defendant in support of the Notice of Intention to Defend discloses either a defense on the merit or triable issues or if there are substantial conflicts as to the facts of the case on the affidavits of the parties, it would be sufficient for the Court to hold that the Defendant has raised a triable issue as would require further enquiry and thus a transfer of the matter to the General Cause List should be the appropriate.

The Claimant’s claim would then be heard at plenary trial in which the contending rights of the parties would be enquired into and settled on the merit on the evidence as would be put forward by them at the trial.” See also United Bank for Africa Plc V. E. I. Natama International Complex Ltd (2020) LPELR-51981(CA) per Sir Biobele Abraham Georgewill. JCA.

In the leading judgment, the numerous legal questions raised by the parties under the cover of just two, seemingly simple but apparently, overloaded, issues have been considered admirably and resolved against the Appellants in favour of the Respondent. I shall only, by way of my humble contribution, say a word or two on some of these very crucial issues as canvassed by the parties in their respective appellate briefs in this appeal.

I have no doubts in my mind based on the affidavit evidence of the parties as in the Record of Appeal that the 2nd – 8th Appellants, who are Directors of the 1st Appellant, are the directing minds and alter ego of the 1st Appellant. In law, they therefore, come within the context of agents of the 1st Appellant.

This is so because agency can be created in about four to five ways, namely: (1) By express appointment, whether orally or by letter of appointment or, indeed by Power of Attorney; (2) By Ratification of the Agent’s acts by the Principal; (3) By virtue of the Doctrine of Estoppel; (4) By implication of law in the case of agency of necessity, and (5) By presumption of law in the ease of cohabitation. See Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Gcorgewill JCA. See also Vulcan Gases Ltd. V. GF.IND.

AG. (2001) 9 NWLR (Pt. 719) 610 AT Pp. 637 – 638, per Iguh JSC. Indeed, agency relation can in law even be implied as is referred to as the implied authority or apparent or ostensible authority of an agent acting within the scope of the authority vested on him by the principal. In law, implied authority is also referred to as apparent or ostensible authority. It is the authority of an agent as it appears to other.

Under the doctrine of apparent authority, the principal may be bound to third parties because the agent appeared to have authority, though as between principal and agent there was in fact no such authority granted and normal circumstances of such authority did not arise. See Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Georgewill JCA. See also UBN (Nig) Plc V. Otagbe Farms Ltd (2002) 14 NWLR (Pt. 787) 242 AT pp. 249 – 250, per Akaahs JCA, (as he then was but later JSC).

Thus, in law, a principal cannot generally be liable for the fraud of his agent unless it is proved that the agents, as in the instant appeal, the 2nd – 8th Appellants, had a guilty mind in respect of the fraudulent acts of the 1st Appellant in its dealings and relationship with the Respondent, had indeed participated in it. See Sections 308, 309 and 316 of the Company and Allied Matters Act 2020. See also Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Gcorgewill JCA, Nirchandani V.

Pinherio (2001) FWLR (Pt. 48) 1323, Fitton V. IGP (1958) 3 FSC 20.

The question then simply is this: Did the Respondent, by the copious affidavit evidence, which were left generally unchallenged and therefore, uncontroverted, show that the 2nd – 8th Appellants as Directors, and therefore, the directing mind and alter ego of the 1st Appellant, acted in the relationship between the Respondent and the 1st Appellant, being the agents of the 1st Appellant, within or outside the scope of their authorities for which either the 1st Appellant alone, being a corporate legal entity, should bear responsibility to the Respondent or for which the corporation veil can be lifted and the 2nd – 8th Respondents also held accountable and liable for the acts of the 1st Appellant carried out under their supervision and direction as the directing minds of the 1st Appellant?

My Lord, it must be pointed out at once that in law the mere fact a person, such as the 2nd – 8th Appellants, is an Agent of a Principal, such as the 1st Appellant, and known to be so does not of itself necessarily prevent his incurring personal liability, and whether he does so or not is to be determined by the nature and terms of the contract and the surrounding circumstances. See Salbodi Group Ltd & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR – 57458 (CA) per Sir Biobele Abraham Georgewill JCA. See also FCDA V. Ezinkwo (2007) All FWLR (Pt. 393) 115, Asafa Foods Factory V.

Alaine Nig Ltd (2002) FWLR (Pt. 125) 756. Now, I had earlier posed the question, whether the facts of this ease as in the Record of Appeal would or could justify and or warrant the lifting of the corporate veil of the 1st Appellant as was apparently done by the lower Court? I certainly think it does!

The lower Court was, in my finding, perfectly in order to have lifted the corporate veil of the 1st Appellant, to see the 2nd – 8th Appellants, as the main actors and directing minds of the activities, acts and actions of the 1st Appellant, in its relationship with the Respondent in the proved facts and circumstances of this case. My Lords, it is true that a limited liability Company, such as the 1st Appellant, company upon its incorporation acquires a legal personality of its own that makes it distinct from its Shareholders ad or Directors.

Yet, in law there are some exceptional but very limited circumstances in which a Court may lift the veil of incorporation so as hold the Shareholders and or Directors personally liable for the debts and or liabilities of the company. This would include eases of grave and proved allegations of fraud, as in the instant appeal or illegality or sham that would in fairness and in justice warrant the lifting of the veil of the corporate entity of a company duly incorporated in law. See Willbros West Africa, Inc. & Ors V.

Mcdonnel Contract Mining Limited (2021) LPELR – 54544 (CA) per Sir Biobele Abraham Georgewill JCA. See also Prof Ajibayo Akinkugbe V. Ewulum Holdings Nigeria Ltd & Anor (2008)12 NWLR (Pt. 375) 1, Okoli V. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (PT. 1053) 37 AT p. 57, Vibelko (Nig.) Ltd V. NDIC (2006) 12 NWLR (Pt. 994) 280 AT pp. 293 – 294, Alhaji Mohammed Abacha V. AG. Federation (2013) LPELR – 21749. It is for the above few words of mine, by way of contribution to the fuller reasoning marshalled out in the leading judgment, that I too dismiss this appeal for lacking in merit.

I shall abide by the consequential orders made in the leading judgment, including the order as to cost.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. FCT/HC/CV/1609/2018: Chukwudi Ngeme.V. Inspector General Of Police & 5 Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed. The Appellant was dissatisfied with the said decision and has appealed against it vide his Notice of Appeal filed on 6/5/2019 on two Grounds of appeal. See pages 98 -101 of the Record of Appeal.

The Record of Appeal was compiled and transmitted to this Court on 6/3/2020 and properly deemed on 6/7/2021. With the leave of this Court, an Amended Notice of Appeal was filed on 9/3/2020 on three Grounds of appeal but was deemed as properly filed on 6/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 28/9/2022. The Appellant was represented by M. K. Bielonwu Esq. appearing with U. L. Agada Esq. The 1st – 4th Respondents were represented by Chinyere Moneme Esq.

The 5th Respondent, though he filed his brief, was not represented by counsel at the hearing of the appeal. The Appellant commenced Suit No: FCT/HC/CV/1609/2018 against the Respondents as Respondents before the High Court of the Federal Capital Territory, Abuja seeking the following Reliefs: 1. The prior, present and planned arrest and further detention, summons and harassment of the applicant by the Respondents and their agents on an alleged indebtedness of the Applicant to one Mr. Emeke Ugwu of Kubwa Abuja is unlawful, unconstitutional null and void ab initio. 2.

The respondents by themselves agents or servants be restrained from further threatening and/or infringing on the fundamental rights of the applicant by threatening him with further arrest except in compliance with Section 35(1), 36 (8 and 12,) 37 and 44  of the Constitution of the Federal Republic of Nigeria 1999, as amended. 3.

That unless the leave of this Honourable Court or any other Court of competent jurisdiction is first sought and obtained the 1st, 2nd, 3rd and 4th Respondents either personally or via any of its agents or officers be restrained from further arresting, detaining and harassing the applicant. 4. That the Respondent pay the sum of N10,000,000.00 (Ten Million Naira) only to the Applicant as compensation for the infringement on his fundamental rights.

SUCCINCT STATEMENT OF FACTS The case of the Appellant as Applicant before the lower Court inter alia was that the 1st, 2nd, 3rd, and 4th Respondents violated his fundamental human rights, especially his arrest, detention and threat of further arrest at the behest of the 5th Respondent in a manner contrary to the provision of Sections 35(1), 36 (8 and 12), 37 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999.

He sought an Order of the lower Court to restrain them and to pay him compensation in the sum of N10,000,000.00. (Ten Million Naira) only as provided under Section 35 (6) of the Constitution. See pages 1 – 5,17 – 18, 37 – 40, 41 – 45 and 70 – 77 of the Record of Appeal. ​The case of the 1st – 4th Respondents before the lower Court inter alia was that the 5th Respondent made a report to the Police against the Appellant that he introduced the 5th Respondent to one Eric Metins who resides in Port Harcourt Nigeria and deals with the sale of Oil & Gas and Allied products.

On the instruction of the Appellant, the 5th Respondent paid the total sum of N6,400,000.00 to Eric Metins on the agreement that he would supply 36,000 litres of gasoline product to the 5th Respondent, and for which the Appellant travelled to Port Harcourt to oversee the conveyance of the product to Abuja. However, the Appellant later returned to Abuja without the product or the money but gave an excuse that the sum of N1,550,000.00 given to him by Eric Mctius had been collected from him when the vehicle he boarded to Abuja was robbed.

On realizing that he had been defrauded by the Appellant and Eric Metins, the 5th Respondent reported the matter to the Police, which invited the Appellant for investigation. The Appellant reported at about 6. 00pm on 6/3/2018, and the Police investigation revealed a prima facie case of fraud and breach of trust.

However, it was only on 7/3/2018 at about 7. 00am that the Appellant’s wife came to bail him and he was released on bail when the bail bond was signed on 8/3/2018, and the Appellant wrote an undertaking jointly signed by the 5th Respondent and in the presence of a witness agreeing to return the sum of N500,000.00 to the 5th Respondent and to refund the remaining subsequently. It was whilst investigation was still ongoing that on 26/4/2018 the Appellant rushed to Court to institute the action against the Respondents. See pages 51 – 69 of the Record of Appeal.

The case of the 5th Respondent before the lower Court inter alia was that the Appellant and one Emeka who was based in Port Harcourt of River State fraudulently made the 5th Respondent to deposit the sum of N6,400,000.00 into a Bank Account operated by Emeka for the supply of Gasoline product which both Appellant and Emeka do not have. The Appellant later went to Port Harcourt and collected the sum of N1,500,000.00, a part of the N6,400,000.00 fraudulently obtained from the 5th Respondent as his share of the fraud.

The 5th Respondent reported the matter to the Police and the Appellant was subsequently arrested by the Police and a part of the N1,500,000.00 was recovered from the Appellant, who was subsequently granted bail by the Police but before he could be arraigned before the Court, he jumped the administrative bail granted to him by the Police and instituted the action against the Respondents. See pages 19 – 25 and 26 – 29 of the Record of Appeal.

Before the lower Court, the parties filed and exchanged several affidavits, counter affidavits and reply as well as their written addresses and notice of preliminary objection by the 5th Respondent, which were all duly adopted by them at the hearing of the Appellant’s suit. On 30/4/2019, the lower Court delivered its judgment, in which it dismissed the claims of the Appellant against the Respondents, hence the appeal. See pages 85 – 97 and 98 – 101 of the Record of Appeal ISSUES FOR DETERMINATION In the Appellant’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to the contrary, when it concluded in its ruling that the Appellant’s suit was only aimed at stopping the 1st, 2nd, 3rd and 4th Respondents from carrying out their statutory duties provided under the law? (Distilled from Ground 1) 2. Whether one must be arrested before he is investigated to decide whether there is a prima facie case of crime or not? (Distilled from Ground 2) ​In the 1st-4th Respondents’ brief, two issues for determination were also formulated as follows: 1.

Whether the lower Court was right to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st – 4th Respondents from carrying out their Constitutional duties provided under the law? 2. Whether the invitation of the Appellant was necessary during investigation carried out by the 1st – 4th Respondents? In the 5th Respondent’s brief, two issues for determination were formulated as follows: 1.

Whether the lower Court was right in the face of the overwhelming evidence to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st, 2nd, 3rd, and 4th Respondents from carrying out their Statutory duties provided under the law? (Distilled from Ground 1) 2.

Whether the arrest of the Appellant was necessary before the investigation to decide if there was prima facia case of crime or not? (Distilled from Ground 2) ​I have taken time to consider the depositions in the affidavit, counter – affidavit and reply affidavit as well as the documentary Exhibits as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court.

I am of the firm view, and since all the two issues apiece as formulated by all the parties are similar, that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the two issues apiece as distilled in the 1st – 4th Respondents and the 5th Respondent’s briefs. However, I shall consider all the two issues together and resolve them in one fell swoop.

ISSUES ONE AND TWO (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law when it held that even though where the right of an individual has been, is being, or is likely to be infringed the Court are enjoined to protect such individual’s right but however, that should not be interpreted to stop the Police from carrying on their statutory duties provided by the law and thereby refused the meritorious claims of the Appellant against the Respondents and contended that the lower Court was wrong because from the evidence before it, the 1st – 4th Respondents were not out to carry out any other duty than lend themselves to the 5th Respondent as his debt recovery agent and urged the Court to hold that the admitted evidence proved that the Appellant was rather unlawfully arrested, detained and only released when he parted with the sum of N500,000.00 as part of the alleged indebtedness to the 5th Respondent with an undertaking to refund the balance of N1,000,000.00 and to allow the appeal, set aside the judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 4 of the Police Act, CAP. P19, LFN 2004.

It was also submitted that in law the onus is on the 1st – 4th Respondents to prove that their act was strictly done in furtherance of their statutory duties under the Nigerian law and contended that the 1st – 4th Respondent failed to discharge this burden of proof placed on them by law and therefore, the arrest and detention of the Appellant was clearly unlawful, illegal and not justified by law and urged the Court to hold that the Appellant was merely arrested and detained at the behest of the 5th Respondent solely for the purposes of recovery of debt and nothing else as there was sufficient time between the 8/3/2018 when the Appellant was released on bail and 22/6/2018 to have arraigned the Appellant if indeed they carried out any investigative duty under the law and discovered that the Appellant had committed any offence known to law, and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to 35 (1), (2), (3) and (4) of the Constitution of Nigeria 1999 (as amended), and relied on Oceanic Securities International Ltd v. Balogun (2013) All FWLR (Pt. 677) 633 AT p. 662; Ejefor V. Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba V. SSS (1994) 6 NWLR (Pt. 351) 475.

On issue two, learned counsel for the Appellant had submitted that the lower Court erred gravely in law when it held that in law, one must be arrested and investigated before the Police should decide whether there is a prima facie case of crime or not and contended that the arrest of the Appellant was neither for the purpose of his investigation nor for the purpose of bringing him before a Court of law to stand his trial or in execution of an Order of the Court but rather for the mere purpose of recovering from him of his indebtedness to the 5th Respondent and urged the Court to hold that it is not the law that one must be arrested before the Police will investigate to decide whether there is a prima facie case of crime or not but rather the correct procedure is for the Police to investigate and then proceed to arrest if the commission of an offence is established and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 35 (1) (c) of the Constitution of Nigeria 1999 (as amended), and relied on Agbebaku V. State (2015) FWLR (Pt. 791) 1423 AT p. 1447; Fawehinmi V. I.G. Police (2002) All NLR 357 (SC) 374; Usman V. The Executive Chairman, EFCC (2018) LPELR – 44678 (CA); Ogbe V.

Okonkwo & Ors. (2018) LPELR – 43876 (CA). ​1st – 4th RESPONDENTS’ COUNSEL SUBMISSIONS On his issue one, learned counsel for the 1st – 4th Respondent had submitted inter alia that the lower Court was right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondents from investigating the case reported against him by the 5th Respondent as he failed to prove any breach of any of his fundamental rights and contended that the powers of the Police includes the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others and urged the Court to hold that the 1st – 4th Respondents acted strictly in line with their statutory mandate in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant for which he was duly arrested, detained and released on bail to await his arraignment and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel referred to Section 4 of the Police Act 2020, and relied on Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569 ​It was also submitted that there was no scintilla of evidence to show that the money paid by the Appellant to the 5th Respondent was done under any form of duress or that it was paid as a prerequisite for his bail and contended that the surety to the Appellant, his wife one Mrs.

Hope Ngene Chukwudi voluntarily declared her none payment of any money to secure the bail of the Appellant and urged the Court to hold that the law accords a measure of primacy to documentary evidence, of which the bail bond is one and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Ogbe V. Asade (2009) 18 NWLR (Pt. 1172) 106; Osibowale V. Carribcan Finance Ltd (2012) All FWLR (Pt. 627)1; Lamina V. Maidugu (2015) 7 NWLR (Pt. 1458) 323; Udo V. State (2018) LPELR – 46132 (CA); Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. 132) 369.

It was further submitted that from the documentary evidence by way of both the bail application and the bail bond, it is clear that the 1st – 4th Respondent did not at any time act as debt recovery agent of the 5th Respondent as falsely alleged but not proved by the Appellant and contended that whatever settlement took place between the Appellant and the 5th Respondent was out of their own mutual agreement to do so and having nothing to do with the 1st – 4th Respondents and urged the Court to hold that all that the 1st – 4th Respondent did was in line with their statutory duties to confront the Appellant with the allegation of crime reported against him by the 5th Respondent.

Respondents further state that at the station the Appellant was confronted with allegations of crime reported against him and the investigation into his claim of an armed robbery attack on him, which was found to be untrue and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. Counsel relied on Hassan V.

EFCC (2014) NWLR (Pt 1389) 630. ​It was also further submitted that the issue of whether the Appellant was charged to Court within any stipulated time was not an issue canvassed before the lower Court and therefore, in law, it cannot be canvased on appeal without the leave of this Court and contended that the Appellant having not sought and obtained the prior leave of this Court this fresh issue is incompetent and must be discountenanced and urged the Court to hold that, at any rate, it is not in every case that the Police must charge a suspect to Court as it may in some cases obtain the legal advice of the DPP to filter and determine which matters should be charged to Court to obviate the possibility of inundating the Courts with all manner of charges and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel relied on Akintola & Anor V. Akintola & Anor (2022) LPELR – 57235(CA); Okechukwu V.

FRN (2018) LPELR – 50877 (CA). ​On his issue two. learned counsel for the Respondent had submitted inter alia that although the lower Court had held that arrest was necessary before investigation, the 1st – 4th Respondents showed clearly that based on the complaint of the 5th Respondent the Appellant was never arrested but was only invited and he came on his own and made statement to the Police at about 6/3/2018 and was only detained to provide a surety to take him on bail which he failed to provide until 8/3/2018 when his wife came forward to sign the bail bond and he was released on bail and contended that there is no law that mandates the Police to carry out its investigation in a particular order and urged the Court to so hold and to dismiss the appeal and affirm the sound judgment of the lower Court.

Counsel referred to Section 35 of the Constitution of the Federal Republic of Nigeria (as amended), and relied on Ajayi V. State (2013) 9 NWLR (Pt. 1360) 605; Udo.

V Essien (2015) 5 NWLR (Pt. 1451) 103. ​5TH RESPONDENT’S COUNSEL SUBMISSIONS On his issue one, learned counsel for the 5th Respondent had submitted inter alia that what the Police investigated the Appellant for was not for debt but for the offence of fraud, which constitutes the crime of cheating somebody in order to get money or goods illegally and contended that the matter before the lower Court bordered on the fraudulent acts of the Appellant in obtaining money from the 5th Respondent which was reported to the Police for investigation and urged the Court to hold that the Appellant having himself admitted his fraudulent acts, there was no further need for the 1st – 5th Respondents to prove why the Appellant was investigated by the Police in the due performance of their duties and to dismiss the appeal and affirm the judgment of the lower Court.

Counsel relied on Atanda V. Iliasu (2013) 18 WRN 1 AT p. 20; APC V. INEC (2015) 3 WRN 1 AT p. 62; Ezeugo V. Agim (2015) LPELR – 24572; Fajemirokun V. CB Nig. Ltd (2009) 5 NWLR (Pt. 11356) 588 AT p. 600.

It was also submitted that the 5th Respondent only made a bona – fide complaint to the Police for the swindling of his N6,400,000.00 by one Emeka in Port Harcourt and the Appellant, out of which the Appellant admitted to have received the sum of N1,500,000.00 swindled from the 5th Respondent and contended that the lower Court having taken to review and evaluate the entirety of the affidavit, counter affidavit and reply affidavit of the parties came to the correct conclusion and finding that the only motive of the Appellant, in the face of his obvious involvement in the swindling of the 5th Respondent, was merely to stop Police from carrying out its statutory duties as the matter had nothing to do with any debt recovery and urged the Court to so hold and to dismiss the appeal and affirm the judgment of the lower Court. ​On his issue two, learned counsel for the Appellant had submitted inter alia that in law that there are no laydown rules on how the Police is to carry out investigation of a complaint of crime made to it by complainant except the Constitutional provision that regulates the period of detention of the Suspect before arraignment and contended that it is at the discretion of the Police on how to carry out the investigation depending on the set of facts of the complaint and urged the Court to hold that what determines the mode of investigating any offence reported to the Police is based on the discretionary powers of the Police over the set of facts of each case and to dismiss the appeal for lacking in merit and affirm the sound judgment of the lower Court.

Counsel referred to Section 4 of the Police Act, 2020 and relied on Olusina Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 AT p. 605; Garuba V. Yahaya (2007) Vol. 145 LRCN 549 AT p. 558; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Ezeanuna V. Onyema (2011) WRN 21 (g) pp. 60 – 61; Ayanru V. Mandilas Ltd (2007) Vol. 147 LRCN 1036(g) p. 1058. APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 1st – 4th RESPONDENTS My lords, the reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry.

The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The Appellant’s reply brief is clearly not in consonance with the clear provisions and the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See Edo State House of Assembly & Ors V.

Igbinedion & Ors (2021) LPELR – 55990 (CA) @ pp. 55 – 57, per Sir Biobele Abraham Georgewill JCA. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR-47373 (CA).

Be that as it may, it was submitted inter alia that it was established as fact that the Appellant paid the sum of N500,000.00 to the 5th Respondent at the Police Station before he was released on bail and since in law facts admitted need no further proof, the lower Court ought to have come to the conclusion that all that the 1st – 4th Respondents did was merely to act as debt recovery agents of the 5th Respondent and grant the claims of the Appellant against the Respondents and contended that by their admission it was proved that the 1st – 4th Respondents clearly acted as debt recovery agents for the 5th Respondent in collecting from the Appellant the N500,000.00 as part of the debt of N1,500,000.00 due to the 5th Respondent and urged the Court to hold that the Appellant was made to pay the sum of N500,000.00 to the 5th Respondent by the 1st – 4th Respondents at the Life Camp Police Station under duress before his release on bail and with an undertaking to pay further N1,000,000.00 within a period of time and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the 1st – 5th Respondents.

Counsel referred to Sections 107 and 123 of the Evidence Act 2011, and relied on Offor & Anor. V. State (2012) LPELR – 19658 (SC); UBA V. Jargaba (2007) 31 NSCQR 144 AT p. 166; Ezemba V. Ibeneme (2004) 19 NSCQR 352 AT p. 410; Ajao V. Alao (1986) 5 NWLR (Pt. 45) 802; Onyeresi V. Okorocha & Ors. (2019) LPELR – 49475 (CA) 51; United States V. Alzate (1995) 47; United States Vs Gonzalez ​(2005) 407; Okonkwo V. State (1998) 8 NWLR (Pt. 561) 210; People V. Petznick (2003) 114 CaI.App.4th 663; United States V. Navarro (2010) 608; Ruffin V. State (2008) 992; United States V.

Harris (1997) 104; Yadis Nigeria Ltd. V. Great Nigeria Insurance Company Limited (2007) All FWLR (Pt. 370) 1348; Redeemed Christian Church of God (Hagiazo Parish) V. Akadiri & Anor (2019) LPELR – 46780 (CA) 16; Federal Republic of Nigeria V. Mohammed (2014) 19 WRN 1 (a), p. 43; Prince (Dr.) B. A. Onafowokan & Ors V. Wema Bank Plc & Ors (2011) 5 SCNJ 266; Prof. Olufeagba & Ors V. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 SCNJ 349 AT P. 373; Yadis Nig. Ltd V. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig. Ltd V. OMPADEC (2007) 2 S.C.N.J. 218; Saraki V.

Kotoye (1992) 11/12 SCNJ 26 AT pp. 42 – 43. ​It was also submitted that on the issue of the Appellant not being charged to the Court by the Police, in law the Appellant cannot force the 1st – 4th Respondents to prosecute him, therefore such arguments could not have been canvassed by the Appellant before the lower Court and contended that the claim of the Appellant is simply that his fundamental right was infringed upon by the 1st – 4th Respondents as he was arrested and detained not in keeping with the provision of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria but as debt recovery agents of the 5th Respondent as he was only released on bail after he paid part of the alleged indebtedness in the sum of N500,000.00 and urged the Court to hold that the Appellant was therefore, entitled to the enforcement of his fundamental rights against the Respondents contrary to the perverse findings of the lower Court and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel referred to Section 46 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended).

APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 5th RESPONDENT In his reply, learned counsel for the Appellant had submitted inter alia that the appeal borders on the lower Court’s refusal to enforce the fundamental rights of the Appellant and contended that an appeal is by way of a re-hearing of questions involved in an action as presented before the lower Court and not a new suit altogether and urged the Court to hold that before the lower Court the issue of fraud was never raised and should therefore, be discountenanced and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents.

Counsel relied on Attah V. IGP (2015) All FWLR (Pt. 805) 108 AT p. 146; Osolu V. Osolu (2003) FWLR (Pt. 172) 1777 AT p. 1800; Oloruntoba – Oju V. AG Fed (2017) All FWLR (Pt. 874)965 AT p. 1976; Okoye & Anor V. Ecobank (2019) LPELR – 47350 (CA); Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941)1 AT p. 70; Ali V. NDIC (2014) LPELR – 22422.

RESOLUTION OF ISSUES ONE AND TWO My Lords, consideration of issues one and two would, in my view, involve the evaluation of affidavit, counter affidavit and reply affidavit evidence as led by their parties and the findings reached thereon by the lower Court in the judgment appealed against to see whether or not there was proper evaluation of the evidence and correct findings reached therein by the lower Court? ​By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.

It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress.

This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.

It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V.

COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. ​Now, before the lower Court, the Appellant filed an Affidavit and a Reply Affidavit. In response, the 1st – 4th Respondents filed a Counter affidavit, annexed to which were five documents marked as Exhibits NPF 1, NPF 2, NPF 3, NPF 4 and NPF 5. Now, Exhibit NPF2, NPF 2 is the extra-judicial Statement of the Applicant at the Life Camp.

Abuja, Police Station, and it shows clearly that the Appellant was arrested on 6/3/2018, an arrest which the 1st – 4th Respondent described simply as an invitation as if the Appellant had any choice in the matter, whether to honour or not to honour the invitation of the 1st – 4th Respondents. Then, Exhibits NPF 3 and NPF 4, are the bail application and bond and evidence of deposit of the sum of N500,000.00 by the Appellant on 8/3/2018. with an undertaking to make available a further sum of N1,000,000.00 to the 5th Respondent between 8/3/2018 and August, 2018.

So, why was the Appellant invited as claimed by the Police or arrested as claimed by the Appellant? Was it merely for the purposes of recovery of debt owing to the 5th Respondent by the Appellant as claimed by the Appellant or was it for the purpose of investigating the fraudulent obtaining of the sum of N6,400,000.00 from the 5th Respondent by the Appellant and his alleged cohort, one Eric? See pages 1 – 5, 17 – 18, 19-25; 26 -29; 37- 40, 41-45, 51-69, 70 -77 of the Record of Appeal.

In the judgment appealed against, the lower Court thoroughly reviewed and evaluated the entirety of the affidavit, counter affidavit and reply affidavit of the parties, as well as scrutinized the documentary Exhibits placed before it and came to the finding that the arrest, detention and release on bail of the Appellant by the 1st – 4th Respondents acting upon the complaint of the 5th Respondent against the Appellant was justified by law and therefore, did not constitute any infringement of any of the fundamental rights of the Appellant as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended).

To my mind, and to my understanding too, this is the real crux of this appeal.

I have taken a closer look at the succinct provisions of Section 46(1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and immediately apparent to me from these provisions is the settled position of the law that, unlike in other civil actions in which the remedy is attached to the wrong done, in actions for enforcement of fundamental right as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended), which is the basic law of the land, a breach need not have occurred or taken place before an application can be commenced to secure the protection and/or enforcement of the fundamental right of the citizen from being breached.

Thus, in fundamental rights enforcement, the mere likelihood of arrest would suffice to ground an action. See Section 46 (1) of the Constitution of Nigeria 1999 (as amended). See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and the African Charter on Human and Peoples Right Ratification and Enforcement Act. See further Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill JCA. ​However, by Section 4 of the Police Act, CAP.

P19, LFN 2004, which provides as follows: “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.” My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st – 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law.

See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR – 52949(CA), per Sir Biobele Abraham Georgewill JCA. See also Olusegun & Anor V. EFCC & Ors (2018) LPELR – 45825 (CA), per Sir Biobele Abraham Georgewill JCA, Imoh & Anor V. EFCC & Anor (2018) LPELR – 46579 (CA), per Sir Biobele Abraham Georgewill JCA; EFCC V. Diamond Bank Plc & Ors (2018) LPELR- 44217(SC).

There is evidence before the lower Court, which was not even denied by the Appellant, that he had in cohorts, making plan with and in collusion with one Eric Melius to defraud the 5th Respondent of the princely sum of N6,400,000.00 for Eric Metius to supply 36,000 litres of gasoline product to the 5th Respondent, which turned out to be a hoax, and out of which the Appellant admittedly benefited to the tune of N1,500,000.00.

Thus, looking at the facts and circumstances of this case as in the Record of Appeal, it seems very clear to me, and I so hold, that there were enough grounds of reasonable suspicions, amounting even to clear prima facie evidence of the commission of crime against the Appellant as reported by the 5th Respondent to the 1st – 4th Respondents, and for which the 1st – 4th Respondents were, in law, both empowered and justified to put into full motion and operation their machinery of investigation against the Appellant to investigate him for the alleged offence of fraudulent obtaining as was reported against him by the 5th Respondent.

I also do not see any evidence of any money paid as a condition for bail of the Appellant as there is no such indication in Exhibits NPF 3 and NPF 4. which are the application and bail bonds. Honestly, I cannot but agree with the apt and unassailable submission of the learned counsel for the 1st – 4th Respondents, as well as learned counsel for the 5th Respondent that the lower Court was impeccably right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondent’s from investigating the case reported against him by the 5th Respondent.

Thus, the finding by the lower Court that the Appellant failed woefully to prove any breach of any of his fundamental rights is unimpeachable and must therefore, be allowed to stand. I do hereby, and without much ado, so allow it to stand. We as appellate Court do not make an habit of interfering with the correct findings of the lower Court, but rather we affirm them as correct and end the matter. See Adamu V. Ashaka Cement Co. Plc (2015) LPELR – 25610 (CA) per Sir Biobele Abraham Gcorgewill JCA.

Indeed, the powers of the Police include the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others, and the 1st – 4th Respondents, on the proven evidence before the lower Court as in the Record of Appeal, acted strictly in line with their statutory duty in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant, including his own voluntary admission. See Section 4 of the Police Act 2020. See also Atakpa V.

Ebetor (2015) 3 NWLR (Pt. 1447) 569. See also Hassan V. EFCC (2014) NWLR (Pt 1389) 630. My lords, what, if I may ask, was the Appellant even thinking of? A person colludes with another and rips off another of the princely sum of N6,400,000.00 and get his princely share of N1,500,000.00 of the loot and then returns to the victim and inform him that armed robbers had robbed, but I think the proper description should have been ‘re – looted, his own share of the allegedly swindled sum of N1,500,000.00 whilst he was in transit from Port Harcourt to Abuja.

The Appellant really needed and looked forward, perhaps, to a medal of honour, or is it dishonour, from the 5th Respondent as well as the 1st – 4th Respondent, whose investigation revealed that the story of armed robbery on the highway against the Appellant was also a hoax. I find neither any evidence of any duress nor of any debt recovery activity on the part of the 1st – 4th Respondents.

The sum of N6,400,000.00, of which a part thereof amounting to N1,500,000.00 was collected by the Appellant are not product of any debt but of crime, which is subject to the investigative powers of the Police. The Appellant must be ready to face the consequences of his wrong choices in life! He can neither put the blame on others or on the Society or even on the Police for taking action against him, if so moved by a valid complaint, as was done by the 5th Respondent against him, within the confines and limits of their powers under the law.

See Section 4 of the Police Act 2020. ​It follows therefore, that in law arrest properly made by the Police or any of the Law Enforcement Agencies cannot constitute a breach of fundamental Rights. Thus, a citizen arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the Police in Court for the breach of his fundamental rights, and if he does so he cannot succeed in such a claim against the Police. See Sambo V.

Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249, where it was stated inter alia thus: “No citizen of Nigeria no matter his status is above the laws of the land and is subject to the powers of arrest and detention upon reasonable suspicion of having committed a criminal offence” See also Udo V Essien (2015) 5 NWLR (Pt. 1451) 103. ​In the light of all I have stated above, I thought I should make it abundantly clear there is no initial onus on the Police to prove the negative that the Appellant’s fundamental rights were not breached unless and until the Appellant has presented at least prima facie evidence of the alleged breach or threatened breach of his fundamental right against the Police.

Thus, in law the burden of proof lies on anyone who asserts to prove what he asserts, and in cases of enforcement of fundamental rights, the burden is on the Applicant to prove that his fundamental rights was breached or in danger of being breached. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569; Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249.

I have scanned through the entire Record of Appeal and I cannot find or see where the parties joined any issues cither on the failure of the Police to charge the Appellant to Court within any specified time or whether the Appellant was invited rather than arrested, both of which amounts in my view to one and the same, and therefore, these not being issues canvassed by any of the parties, cannot become issues in this appeal by their parties mere wishful thinking and/or belief without the requisite prior leave of this Court sought and obtained to do so.

These issues are hereby discountenanced as going to no issue in this appeal. ​Now, having held that the 1st – 4th Respondents acted within the limits of the powers conferred upon by them by law in arresting, detaining and releasing the Appellant on bail on the serious criminal allegations of fraud, of which there was prima facie evidence before the Police, including the admission by the Appellant before the Police, I consider issue two for determination as having become merely academic as there was prima facie reason or basis for the arrest of the Appellant. ​However, had there not been a prima facie basis for the arrest and detention of the Appellant, then issue two for determination would have become apposite since it is time the Nigeria Police, and indeed all other Law Enforcement Agencies, should desist from arresting and detaining Citizens accused of one crime or the other in order to look for prima facie evidence to justify that prior arrest and detention, rather than for the Police to conduct discreet investigation upon a complaint, as it is done in other climes, to find reasonable suspicion or prima facie evidence to warrant an arrest.

In other words, an arrest merely for the purpose of looking for prima facie basis for the arrest is wrong. It should rather be prima facie evidence as basis for an arrest. This is what civilized and best practices in good policing entails.

Thus, it is for the Police to investigate at least to ascertain some form of prima facie evidence before proceeding to arrest a suspect if prima facie there is evidence of the commission of an offence, unless the Suspect was caught in action in the alleged commission of the crime. See Fawehinmi V. IG. Police (2002) All NLR 357 (SC) AT p. 374, where the Supreme Court per Uwaifo, JSC had emphatically stated inter alia thus: “I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect.

It is completely wrong to arrest, let alone to caution a suspect, before the police look for evidence implicating him.” My lords, even at the level of this Court in the hierarchy of Courts in this Country, we too have spoken in clear condemnation of the procedure whereby an arrest is made first by the Police before evidence to incriminate the suspect is scavenged for by the Police. See Agbebaku V.

State (2015) FWLR (Pt. 791) 1423 AT p. 1447, where this Court Ogunwumiju, JCA (as he then was but now JSC) had stated inter alia thus: “The first step in criminal administration upon the commission of a crime is police investigation. The next step is securing the presence of the accused person before the Court, either by the use of private summons, public summons or warrant of arrest. In extreme cases where the accused is evading and refusing appearance before the Court, a bench warrant is issued.” I think I have said enough!

In the light of all I have stated and found as above, issue one for determination is hereby resolved against the Appellant in favour of the 1st – 5th Respondents. On the whole therefore, having resolved issue one for determination against the Appellant in favour of the 1st – 5th Respondents, and having duly discountenanced issue two for determination as being merely academic, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, this appeal is hereby dismissed.

In the result, the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. ECT/UC/CV/1609/2018: Chukwudi Ngeme V. Inspector General of Police & Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed, is hereby affirmed. There shall be no Order as to Cost.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed. The decision of the High Court of Federal Capital Territory Abuja Division in Suit No. FCT/HC/CV/1609/2018 delivered on 30/4/2019 is hereby affirmed. I abide by the consequential Orders.

DANLAMI ZAMA SENCHI, J.C.A.: I have read in advance before now, the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed. ​The judgment of the High Court of the Federal Capital Territory, Abuja delivered on 30th April, 2019 in suit No. FCT/HC/CV/1609/2018 by BELLO KAWU, J is hereby affirmed. No Order as to costs.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Federal Capital Territory (FCT) High Court, Abuja, delivered on May 8th, 2020 by Hon. Justice O. C. Agbaza wherein the Respondent’s application was granted and an order recognising the arbitral award dated November 6th, 2018 was granted in favour of the Applicant the Respondent herein.

The Appellant was dissatisfied with the decision of the Court that it refused to set aside the arbitral award of November 6th, 2018 but rather ordered recognition of same as earlier stated. It filed its Notice of Appeal on May 18th 2020 and as amended with Four (4) Grounds of Appeal on September 10th, 2020 of same date, deemed as properly filed and served on February 3rd, 2022. The following reliefs in the main are being sought: “i. An Order allowing the appeal. ii. An Order of this honourable Court setting aside the decision of the trial Court. iii.

An Order of this Court setting aside the arbitral award. iv. An Order of this Court dismissing/striking out Motion No. M//2987/19 Brief facts as garnered from the printed record placed before this Court that culminated into this appeal are that the Respondent bought four (4) units duplex at No. 40 Madeira Street, Imani Estate, Maitama, Abuja from the Appellant for Seven Hundred and Ten Million (N710,000,000.00) Naira.

The Appellant undertook to refund the Respondent’s purchase fee, solicitor’s fee and the bank charges where it is unable to perfect its title to the property or if an adverse third party claimed title on the property. The Respondent was forcefully evicted by an Agency of the Federal Government of Nigeria which laid claim to the property. The Appellant in spite of demands by the Respondent for possession or refund of purchase fee, failed to do anything.

According to the Appellant, the Respondent was not disturbed in any way in the possession of the property in spite of the action of the said Government Agency. The Respondent on the other hand, pursuant to the Arbitration clause contained in their agreement gave notice of Arbitration. The Final Award was published by Prof. Paul Idonigie in favour of the Respondent after the arbitral proceedings. The Appellant for that reason filed an Originating Motion as amended at the FCT High Court and sought to set the arbitral award aside whilst the Respondent filed an application for its recognition.

The decision of the Court in favour of the Respondent is being appealed against by the Appellant. The following in the main were the reliefs sought by the Appellant at the Court below: “1. A DECLARATION that the arbitral award of Prof. Paul Obo Idornigie, SAN, PHD, FCIS, FClArb (UK), C. Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited is not binding on NICON Insurance Limited (the appellants herein). 2. AN ORDER of the honourable Court setting aside the arbitral award of Prof.

Paul Obo Idonigie SAN, PHD, FCIS, FClArb (UK), C.Arb published on 6th November, 2016 in the arbitration between Brighthouse Estate Limited V NICON Insurance Limited. In compliance with the rules of this Court parties filed their briefs. Appellant’s brief dated September 9th, 2020, filed September 10th, 2020 deemed as properly filed and served on February 3rd, 2022 was settled by Olumide Olujinmi Esq., who urged that the appeal be allowed. The Respondent’s brief is dated and filed February 23rd, 2022 and settled by Chief Duro Adeyele SAN, who urged in opposition that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION “i. Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii. Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” RESPONDENT’S ISSUES FOR DETERMINATION “1.

Whether the Court below was right in refusing to interfere with the decision of the Sole Arbitrator in his award published, the Appellant having failed to establish alleged want of jurisdiction or alleged misconduct against the Sole Arbitrator in making the Award. 2. Whether considering the facts and circumstances of the applications before it, the Court below was right in granting an order of recognition and enforcement of the award of the Sole Arbitrator, Prof. Paul O.

Idonigie, SAN FClArb (UK) C.A. and dismissing the application for an order setting aside the award.” Carefully reading through the two sets of Issues as afore going, one finds that they are similar in content and objective and is satisfied that the issues donated by the Appellant will justly and fairly determine this appeal. Therefore, I adopt the Appellant’s Issues.

APPELLANT’S SUBMISSION The learned Appellant’s Counsel submitted that the Court was wrong to have held as it did, given the fact that the issue involved was that of jurisdiction of the arbitral Tribunal which Order 19 R. 12(h) of the FCT High Court Rules allows any party to pursue. The Appellant contended that the cause of action pursued by the Respondent had not crystalized when it went before the Tribunal and so the Sole Arbitrator had no jurisdiction to grant the award it did. In support, he cited the cases of NWORA V. NWABUEZE 2019 7 NWLR PT. 1670 1, OGBIMI V.

OLOLO 1993 7 NWLR PT. 304 128 and EFCC V. AKINGBOLA 2015 14 NWLR PT. 1478 199. He argued that there was no third-party successful challenge of the peaceable possession of the property by the Respondent. The Indemnity Agreements between the parties are in Exhibits A, B and C in support of Clause 10 in the Sale Agreement between the parties. In support, he cited the cases of OJUKWU V. GOV. OF LAGOS STATE 1985 2 NWLR PT. 10 806 and EDUN V. PROVOST, LACOED 1998 13 NWLR PT. 580 52.

Further that the Arbitral Tribunal too was in the same error as the Respondent that there was a successful third-party challenge and the wrong arbitral award in consequence. He cited the cases of SEHINDEMI V. GOV. LAGOS STATE 2006 ALL FWLR PT. 311 1858 and SILAS OKOYE V. CHIEF AKAGBUA KPAJIE & ORS 1972 6 SC 98. He submitted that the Tribunal was also wrong in its meaning of peaceable possession for not putting any value on the fact that the Respondent received some benefit from the contract as it was in possession for 14 months.

That in essence the Tribunal created a new contract for the parties from its wrong interpretations and therefore should not be allowed to stand and in support cited the cases of EKONDO COMMUNITY BANK LTD V. ANIETING 2013 LPELR 21139 CA 15 and NIKA FISHING CO LTD V. LAVINA CORPORATION 2008 16 NWLR PT. 1114 509. Therefore, he submitted that the Arbitrator’s act amounted to misconduct which can be set aside and in support cited the case of BAKER MARINE NIG LTD V. CHEVRON NIG LTD 2000 12 NWLR PT. 681 393, In consequence, he submitted that the jurisdiction of the Tribunal never arose.

In conclusion, he urged that the appeal be allowed. RESPONDENT’S SUBMISSION The learned silk submitted that the contention of the Appellant in the main was that the Arbitral Tribunal had no jurisdiction as the cause of action had not crystalized and that the Sole Arbitrator misconducted himself in the interpretation he gave to the successful third party challenge and peaceable possession. Arbitral awards are not appealable in Nigeria, they are binding and to a great extent final and in support he cited the cases of ADAMEN PUBLISHERS NIG LTD V.

ABHULIMEN 2016 6 NWLR PT. 1509 431 and BAKER MARINA NIG LTD V. DANOS & CUROLE MARINA CONST INC. 2001 7 NWLR PT. 712 337. And that it is in line with the intendment of the Arbitration and Conciliation Act, 2004 Section 34 as the Appellant sought in a way to appeal the award though went under the guise of misconduct on the part of the Arbitrator. ​ He argued that there was no misconduct on the part of the Arbitrator as described in Section 29 of the Arbitration and Conciliation Act, 2004. ​

That the Court below agreed that cause of action had arisen where the Respondent stopped enjoying the peaceable possession of the property it purchased when the third party claimed adverse title and successfully took possession from the Respondent. That the submission of the Appellant is in a bid to frustrate the Respondent from enjoying the fruits of the award as the argument on jurisdiction is absurd and in support he cited the case of FCMB PLC. V. AIB NIG PLC 2000 8 NWLR PT. 667 42.

Further in support of the fact that there can be no appeal over the award of the Tribunal and that for the issue of lack of jurisdiction of the Tribunal, the maxim is kompetenz-kompetenz, that the Tribunal is competent to inquire into its own jurisdiction as provided in Section 12 (1) of the Arbitration and Conciliation Act and its decision thereupon shall be final as contained in Section 12 (4) of the Act.

He submitted that the Arbitrator had resolved the issue of the jurisdiction of the Tribunal when it dealt with the question whether the claim for return of purchase price by the Respondent was premature or not through the specific clauses in the Contract of Sale, Deed of Assignment and Deed of Indemnity between the parties. Further that the Court rightly found that the Respondent was successfully dispossessed of peaceable possession of the property by third party adverse claimant. And that the arbitral proceedings commenced in that regard was not premature.

He submitted that decision is therefore final and binding. He submitted further that the Court was right to have found no misconduct by the Sole Arbitrator. That the allegation of misconduct is not only woolly but unfounded and a misconception of what misconduct means in arbitral proceedings. Further that the judicial authorities cited on whether a trespasser can forcefully dispossess of peaceable possession of property are irrelevant herein.

He asserted that the Appellant did not deny that there was dispossession in fact of the Respondent and the Appellant had to proceed to Court over title with those it termed trespassers and has been unable to restore possession to the Respondent. ​ The learned Silk submitted that the motion for the recognition of the arbitral award was not in any way challenged as there was no Counter-affidavit in opposition or point of law raised. Therefore, the Court was right to have so deemed it.

Notwithstanding, it examined all the materials submitted by the Respondent in that respect in line with the provision of Section 31 (2) of the Act before reaching its decision he argued. Consequently, the complaint of the Appellant that failed to challenge the application for recognition of the arbitral award is of no moment he submitted as the Appellant had conceded the Motion. In support, he cited the case of MABAMIJE V. OTTO 2016 ALL FWLR PT. 828 883 898 and HONDA PLACE V. GLOBE MOTORS HOLDINGS NIG. LTD 2005 14 NWLR PT. 945 273.

In conclusion, he urged that the appeal be dismissed and the decision of the Court below affirmed. POSITION OF THE COURT Having very carefully considered the briefs of both parties and thoroughly read through the Record before this Court I shall commence consideration of the Appellant’s two (2) issues which are reproduced hereunder for ease of reference along with the findings of the Court below: ISSUES I AND II “i.

Whether the lower Court was right to have refused to consider and determine the jurisdiction of the arbitral Tribunal to grant the award and proceed to recognise and enforce the arbitral award (Grounds 1 and 3). ii.

Whether the lower Court was not in error to hold that the sole arbitrator did not misconduct himself when the arbitrator considered issues outside the agreements of the parties (Ground 2).” Two applications as consolidated were considered and determined in the ruling of the Court below that is being appealed; the Appellant’s, CV/492/18, to set aside the arbitral award and the Respondent’s, M/2987/19 to recognise and enforce the award.

The Appellant’s grouse in the main was that the cause of action leading to the grant of the arbitral award had not crystallized and as such the sole arbitrator lacked the necessary jurisdiction to grant the award as it did. The Court below found to the contrary hence this appeal. The Court considered and determined the issue of jurisdiction of the arbitral Tribunal in the grant of the award.

It found that the arbitral proceedings were not premature as the Appellant argued as it found that the cause of action had crystalized which is an issue of jurisdiction. ​ It clearly considered and made findings on whether the Tribunal went outside its scope with regard to the agreement and so was able to hold that there was no misconduct and that it rightly made the award in question. The meanings it gave to the peaceable possession and successful third-party challenge as provided for in Exhibit A, B, C and H which is the final award itself.

The Appellant claimed that even though there was trespass upon the property it sold to the Respondent, it could not be interpreted to mean and be equal to the parties’ intendment in the Indemnity agreement as contained in Exhibits A, B, and C. That the trespass could not be taken to mean a successful third-party challenge of peaceable possession of the property sold to the Respondent.

It is necessary to note that the parties agreed in clause 10 of the Contract of sale, Exhibit A thus: “10 – The vendor hereby undertakes to indemnify the purchaser for any want and/or defect in title not herein disclosed.” See page 707 of the Record. The Deed of Indemnity, Exhibit B particularly paragraphs 2 and 4 state as follows: “This undertaking is in furtherance of clause ten (10) of the DEED OF ASSIGNMENT signed by both parties wherein NICON INSURANCE LIMITED Transferred her title in the above property to BRIGHTHOUSE ESTATE LIMITED.

NICON INSURANCE LIMITED further undertakes to do all that is necessary for the perfection of the title of BRIGHTHOUSE ESTATE LIMITED with the Lands Registry i.e ABUJA GEOGRAPHIC INFORMATION SYSTEM and any other Agency (s) saddled with this responsibility.” See Exhibit B, page 716 of the Record. The Appellant argued that the case of the Respondent before the Tribunal that there was a total failure of consideration was wrong and should have failed as it was based on the fact that the Respondent was by a third-party adverse claimant.

That the prayer of the Respondent in that regard was for the Arbitral Tribunal to invoke the foregoing stated indemnity clauses in Exhibits A, B, and C and the Respondent should have made a case in law that there was a successful challenge by the third party. Therefore, there was no breach of any of the terms of the Contract Agreement warranting the final award by the Tribunal.

The Court correctly found in my view and humbly as follows on page 1017 of the Record: “Having carefully considered the entire processes – Clause 7, 8 of Exhibit A, Exhibit B along with Clause 10 of Exhibit C and Exhibit H along the judicial authorities cited, this Court resolve this issue 1, in the negative and in favour of the Respondent.” One could not agree more with the Court.

Respectfully one wonders if the trespass did not amount to third party successful adverse challenge of the property what then was it and at what stage would it crystalize to so qualify particularly when the Appellant up to the stage of the arbitral award was unable to put the Respondent back unto possession of the property from the said trespasser. The Respondent was in fact evicted and could not recover possession both during and after the arbitral proceedings.

Further respectfully, what then was happening with the Respondent out of the property it had legally paid for and hitherto peaceably occupied. In my humble view, the fact that the Respondent occupied the property for some months before the eviction does not remove from its right to recover the property or get its money back. The contract from Exhibit A did not give the impression that it was for a few months to test run.

Clause 8 of Exhibit A, the Contract of Sale states thus: “8 – The vendor subject to the consent of the Honourable Minister, Federal Capital Territory, Abuja, Nigeria, first sought and obtained has agreed to surrender/assign all its rights and interests in and over the Plot to the Purchaser free from all encumbrances.” See page 707 of the Record. Clause 10 of Exhibit C, the Deed of Assignment states equally thus in support of the Respondent’s case: “10 – The Assignor hereby undertakes to indemnify the Assignee for any want and/or defect in title not herein disclosed.” See page 720 of the Record.

The argument by the Appellant that because the cause of action had not crystalized, the Arbitral Tribunal therefore lacked jurisdiction to have entertained the matter and granted the award cannot hold and respectfully is of no moment. The Appellant further argued that the Tribunal was in error by the way it construed “peaceable possession” to the effect that there was a clear breach. That since the Arbitrator was wrong in the interpretation which led to the award, he misconducted himself and the award ought to be set aside.

As correctly held by the Court, there was no misconduct on the part of the Arbitral Tribunal.

The law is clear on what would amount to misconduct which this Court listed in the case of STABILINI VISINONI LTD V. MALLINSON & PARTNERS LTD LPELR 23090 CA 2014.

It stated misconduct to include an Arbitrator failing to comply with the terms express or implied, an award which on the ground of public policy ought not to be enforced, an Arbitrator who collects bribe or corrupted, where the Arbitrator makes a mistake as to the scope of his authority from the agreement of reference, where the Arbitrator fails to decide all the matters referred to him, where he breached the rules of natural justice and he fails to act fairly between the parties.

The sole arbitrator in the instant appeal does not fall within any of the foregoing situations that will amount to misconduct. The Court was right when it held that the Appellant failed to “show clearly how the Arbitrator acted wrongly in considering the facts before him, amounting to misconduct as stated within any of the definition of what amounts to misconduct.” The Court in the light of the foregoing was unable to set aside the final award and correctly too.

Section 29 of the Arbitration and Conciliation Act 2004 allows an award to be set aside where the party applying is able to prove that the award is outside matters within the purview of the Tribunal. The Court was unable to find that the Tribunal was outside the agreement which brought about arbitration. I have also gone through the gamut of the Record and unable to find that the Arbitrator misconducted himself.

The Court therefore was right when it held thus on page 1021 of the Record: “Having carefully perused this instance issue by considering issues outside the agreement of the parties and along the long line of judicial authorities, this Court finds that the Applicant has failed to furnish sufficient proof in line with the law, to warrant this Court to set aside this Final Award published on 6th November, 2018…” The Arbitral Tribunal properly entertained the Respondent’s matter.

It is not in question at all that both parties agreed that in the event of a dispute they would go to arbitration by Clause 16 of Exhibit A, the Contract of Sale. See page 711 of the Record. The second application before the Court as aforestated by the Respondent pursuant to Section 31 of the Arbitration and Conciliation Act sought the following prayer in the main: “1. An order recognising and enforcing the Arbitral Award in favour of the Applicant against the Respondent dated 6th November, 2018 and published same day, by the Sole Arbitrator, Professor Paul Oboh Idornige, Ph, FCI Arb (UK) C.

Arbitrator, Certified True Copy of which is attached as Exhibit “B”.” As contained in the record and in the light of the foregoing findings of the Court on the Appellant’s application that the award be set aside and the fact that there was no opposition to the second application by the Respondent for the recognition and enforcement of the award, the evidence required by the Court in support of the second application is very minimal. As already stated and found, the Court below considered the jurisdiction of the Arbitral Tribunal.

The Appellant as the Respondent to the application as stated did not file any counter-affidavit. The Court found that the facts contained in Exhibits A and B forwarded in support of the Respondent’s application were not challenged and that it has earlier refused to set the same award aside upon the application of the Appellant. In the circumstances, it therefore granted the Respondent’s application. In consequence, the two issues are resolved against the Appellant. In the result, this appeal cannot be allowed, it therefore fails and is hereby accordingly dismissed.

The ruling of the Federal Capital Territory High Court delivered on May 8th, 2020, by Hon. Justice O. C. Agbaza is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, E. O. Williams-Dawodu, JCA gave me the privilege of reading in advance the draft of the judgment just delivered. Having carefully perused the record of appeal and the submissions of counsel in this appeal, I am in agreement with the findings of my learned brother that this appeal lacks merit and that it be dismissed. The Appellant as Respondent in the Court below did not dispose to sufficient facts showing why the arbitration award be set aside. On that note, I also hold that this appeal has no merit. It is hereby dismissed.

I abide by the consequential order made in the leading judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have read before now the lead judgment of my learned brother, E O. Williams-Dawodu, JCA just delivered. The lead judgment painstakingly considered and determined all the issues canvassed on appeal and I agree with the finding and conclusion arrived thereafter in the lead judgment that this appeal lacks merit and it is dismissed. ​ Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja delivered on 8th day of May, 2020 by O. C AGBAZA, J is hereby affirmed. I make no order as to cost.

Judgment

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): The Motion on Notice filed on 13/12/2021 prays for an order granting leave to the applicants to appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court; some of the grounds being grounds of mixed law and facts and/or of facts simpliciter; and an order granting leave to the Applicants to, within fourteen (14) days of the grant of leave to appeal, file its Notice of Appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court in terms of the proposed Notice of Appeal, Exhibit B attached hereto.

The grounds for the application are:- 1. On the 10th day of December, 2021 this Honourable Court delivered a Ruling in this appeal. 2. Dissatisfied with parts of the decision contained in the Ruling, the Applicant is desirous of lodging an appeal against the decision in the said Ruling in terms of Exhibit B. ​3. Some of the grounds of the appeal appear to be grounds of mixed law and facts and of facts simpliciter. 4.

By the relevant law and the Rules of this Honourable Court and having regard to Ground 3 above, leave of this Honourable Court is required to file the proposed Notice of Appeal (Exhibit B) against the said decision of this Honorable Court. The motion is supported by an accompanying affidavit in support of four main Paragraphs and an affidavit of urgency also of four (4) main Paragraphs. Both affidavits were duly deposed to by one Tola Oni on behalf of the applicants with two documentary Exhibits A (a certified true copy of the said Judgment and Exhibit B (copy of the proposed notice of appeal).

The applicants’ Counsel contended in the course of moving the application that the applicants are seeking the leave of this Honourable Court to appeal against the Ruling of this Honourable Court delivered on the 10th of December, 2021. That it is not in doubt that the grant or refusal of applications such as the instant motion on notice is within the discretion of this Honourable Court – Ukachukwu vs. PDP (2014) 4 NWLR (Pt. 1396) 65, Dr. Alex Otti & Anor v. Dr. Samson Uchechukwu Ogah & Ors. (2017) 17 NWLR (Pt. 1563) 1.

That what is required of this Court in an application of this nature is to peruse the proposed notice of appeal to decipher whether the grounds therein are substantial- Samson Uchechukwu Ogah & Ors. (Supra). According to Counsel, the major grouse of the Applicant is that this Court proceeded to grant reliefs 1-3 of the Appellant/Respondent’s motion on notice dated 5th July 2021 and extended time within which the Appellant/Respondent may appeal against the order of the Federal High Court delivered on the 16th of February 2021.

That this Court granted reliefs 1-3 on the ground that the alleged mistake of counsel is unacceptable and sufficient reason for the grant of an extension of time to appeal contrary to the settled position of the Supreme Court in the case of Elias vs. Eco bank Nigeria Ltd. (2019) 4 NWLR (Pt. 1663) 381 at 402-403. ​That this on its own, demonstrates the substantiality of the grievance of the Applicant and the proposed appeal against the said decision.

According to Counsel, some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts -Bat Nig. Ltd. & Anor vs. Gallaher Ltd & Ors. (2015) LPELR-41824 (CA) and NDIC vs. Sadam & Co. Ltd & Ors. (2019) LPELR-50966 (CA). That a further review of the proposed appeal will reveal a good and substantial reason why the appeal ought to be heard.

In opposing the grant of the application, the Respondent filed a counter affidavit of five main paragraphs duly deposed to by Christopher Friday and a written address.

According to Counsel the issue is whether the application of the Applicant is supported by law in terms of the Third/Fourth Alteration of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which removes the defunct sub-section (3) of Section 233 under which the Applicant has brought its application, and subsequently removes the jurisdiction of the Supreme Court to entertain an appeal based on facts and/or mixed law and facts.

That Exhibit B attached to the Applicant’s application is essentially challenging the exercise of discretion of this Honourable Court in granting leave to the Appellants/Respondents to file their Notice of Appeal which has been held by numerous authorities that where manifold injustice would be occasioned to the Respondent, discretion of Court cannot be challenged.

According to Counsel, this Honourable Court lacks jurisdiction to grant the Applicant’s application on the basis that the Third/Fourth Alteration of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has removed the defunct Section 233 (3) which allows the Supreme Court to hear an appeal on the ground of facts and/or mixed law and facts. We submit that the Supreme Court, like any other Court is a creation of statute.

By virtue of Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) – that the express mention of a thing is to the exclusion of all other – Omatseye vs. Federal Republic of Nigeria (2017) LPELR- 42719; Ehuwa vs. O.S.I.E.C (2006) 10 NWLR Pt. 1012 at 544. That one of the conditions which must be fulfilled by the Applicant before an application for leave can be granted, is that, there is a prima facie good ground of appeal pending before the Court.

Counsel further submitted that Exhibit B which is the proposed Notice of Appeal has not shown any prima facie good ground that can compel the exercise of discretion in favour of the Applicant – Brathwaite vs. Dalhatu (2016) 13 NWLR (Pt. 1528) 32 at 56 Paras. A-F. That the only reason why the Applicant is seeking leave to appeal to the Supreme Court is because the Applicant is querying the exercise of the discretionary power of this Honourable Court in favour of the Respondent.

According to Counsel, the attitude of Appellate Court to the exercise of discretion is that unless the exercise is manifestly unjust, arbitrary and reckless, the Appellate Court will not interfere. That the Applicant has not shown that the grant of the discretion of this Court is manifestly unjust and/or reckless in the light of the facts before the Court.

He urged the Court to dismiss the application with substantial cost. ​In the applicant’s reply on point of law, it was submitted that the power of the Supreme Court to entertain appeals is provided for in Section 233 (1) of the 1999 Constitution. That the above provision made no distinction between appeals involving question of facts or of law or of mixed law and facts.

That the above provision bestows upon the Supreme Court of Nigeria a blanket authority to hear and determine any appeal that may arise from the Court of Appeal; and that it is therefore inconceivable to contend despite the clear provision of Section 233(1) of the 1999 Constitution that the jurisdiction of the Supreme Court is ousted for appeals involving questions of mixed law and fact. That at best, the interpretation would be that appeals on questions of law alone can be made to the Supreme Court without leave. That the observation by the Supreme Court in the case of Shittu vs.

PAN Limited (2008) 15 NWLR (Pt. 1642) 195 is at best an obiter and ought to be discountenanced by this Court. He urged the Court to allow the application. DETERMINATION OF THE APPLICATION The basis upon which the Applicant has premised the instant application is that some of the grounds of appeal contained in the proposed notice of appeal sought to be filed against the decision of 10th December 2021 raises questions of mixed law and facts.

In deciding whether to grant an application for leave to appeal to the Supreme Court on grounds of mixed law and fact, the Court of Appeal is mandated to review the affidavit in support as well as the proposed notice of appeal to decipher whether or not grounds of mixed facts and law exist therein. A review of the proposed notice of appeal attached as Exhibit B will reveal that some of the questions raised therein are grounds of mixed law and facts. Ground one complains about the Honourable Court exercise of discretion in the Appellants/Respondents’ motion on notice dated 5th July 2021.

Where a ground of appeal challenged the exercise of discretion by a Court, it is a ground of mixed law and facts – Chief of Air Staff & Ors vs. Flying Officer Edward & Ors (2019) LPELR-51173(SC); Emeakayi vs. COP (2004) 4 NWLR (Pt. 862) 159; Roper & Anor vs. Iman & Ors. (2016) LPELR-41571 (CA); Okeke & Ors. vs. Okeke & Ors. (2013) – LPELR-22565 (CA). The mere fact that Section 233(2) makes mention of appeal as of right presupposes that there are certain instances where appeal may be made with leave of Court; regardless of the fact that Section 233(3) was deleted.

The Appellants/Respondents placed heavy weather on the case of Shittu vs. P.A.N Limited (2018) 15 NWLR (Pt. 1642) 195. They contended that the Supreme Court in that case held that appeals involving questions of mixed law and facts ends at the Court of Appeal. Indeed, the Supreme Court in a good number of cases, decided after Shittu vs. P.A.N Limited (Supra) and the 1st, 2nd & 3rd Alterations Acts, 2010, has continually held the view that appeals involving grounds of mixed law and facts can be made to the Supreme Court provided leave of Court is sought and obtained. See: Nwagbara vs.

Jadcom Ltd (2021) LPELR-55329 (SC); Eneh vs. NDIC & Ors. (2018) LPELR-44902(SC); Fasuyi & Ors. vs. PDP & Ors (2017) LPELR-43462(SC); Okwuagbala & Ors v. Ikwueme & Ors. (2010) LPELR-2538(SC). In the case of Obayuwana & Ors. vs. Adun (2020) LPELR – 49377 (SC) the Apex Court held that:- “The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Court of Appeal or of this Court. No Appeal on questions of fact lies to this Court without such leave.

In other words, where a question of fact has been brought before this Court without leave, the Court has no jurisdiction. Simply put, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless leave is sought and obtained – See Ukpong vs.

Commissioner for Finance and Economic Development (supra), wherein Onnoghen, JSC (as he then was) explained:- “Where an appeal is to be with leave but none was obtained, the condition precedent to validity of such an appeal has not been fulfilled and as a result the appeal is, in law, said to be incompetent and the appellate Court is in consequence without jurisdiction to entertain same”. The Respondents also argued that there are no arguable grounds in the proposed notice of appeal. Grounds 1, 3 & 4 question the striking out of the appeal as against the dismissal.

Ground 2 challenges the striking out of the appeal in the face of Section 53(5) of the Asset Management Corporation of Nigeria Act.

Clearly, these are not only arguable grounds but highly contentious ones that are deserving of the Supreme Court’s consideration. ​The application is therefore meritorious and is hereby granted thus:- 1) Leave is hereby granted to the Applicant to appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court; some of the grounds being grounds of mixed law and facts and/or of facts simpliciter. 2) Leave is hereby granted to the Applicant to within fourteen (14) days from today, file its Notice of Appeal against the decision contained in the Ruling of this Honourable Court delivered on 10th day of December, 2021 in this appeal to the Supreme Court in terms of the proposed Notice of Appeal as per Exhibit B (the proposed notice of appeal).

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the Ruling of my lord ABDULLAHI MAHMUD BAYERO, JCA and I agree with the reasoning and conclusions of my lord in the said Ruling. I have nothing useful to add.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the privilege of reading in draft the lead Ruling prepared by my learned brother, Abdullahi Mahmud Bayero, JCA. I am in agreement with his reasoning and conclusion that the application is meritorious and deserves to be granted. I equally grant the application and abide by the orders made in the lead Ruling.

Judgment

ABDU ABOKI, J.S.C. (Delivering the Leading Judgement): By a Motion on Notice filed on the 21st of September, 2020, the Appellant/Applicant prayed this Court for the following: A. An Order enlarging the time within which the Applicant may file an additional ground of appeal bordering on law alone as contained in Ground One of the Proposed Further Amended Notice of Appeal attached to the affidavit in support of this application. B.

An Order granting leave to the Applicant to file an additional ground of appeal bordering on law alone as contained in Ground One of the Proposed Further Amended Notice of Appeal attached to the affidavit in support of this application. C An Order granting the Applicant leave to raise a fresh issue on appeal bordering on the lack of subject matter jurisdiction of the Federal High Court, Lagos Judicial Division (“Trial Court”) to entertain Suit No.

FHC/L/CS/1383/2012, which culminated in this appeal [as contained in Ground One of the Proposed Further Amended Notice of Appeal attached to the affidavit in support of this application]. D. An Order granting leave to the Applicant to further amend the Amended Notice of Appeal dated 18/02/20 and filed on 02/03/20 to incorporate the additional ground of appeal bordering on lack of subject matter jurisdiction of the trial Court as shown in the Proposed Further Amended Notice of Appeal. E.

An Order granting leave to the Applicant to re-number the grounds of appeal as shown in the Proposed Further Amended Notice of Appeal. F. Such further or other Order or Orders as this Honourable Court may deem fit to make in the circumstances.

TAKE FURTHER NOTICE that the grounds upon which this application is brought are as follows: (a) By Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this honourable Court has the jurisdiction to entertain an appeal which is predicated on the proposed additional ground of appeal contained in Ground One of the Proposed Further Amended Notice of Appeal; (b) By Section 27(2) of the Supreme Court Act, the Applicant had three months from the date of the delivery of the judgment of the Court of Appeal to appeal to this honourable Court; (c) The period of three months within which the Applicant may appeal as of right in respect of Ground One of the Proposed Further Amended Notice of Appeal has lapsed; (d) The Applicant’s failure to appeal in respect of the jurisdictional challenge within the prescribed time is as a result of inadvertence of counsel; (e) The proposed new ground of appeal touches on the lack of subject matter jurisdiction of the trial Court to entertain Suit No.

FHC/L/CS/1383/2012, which culminated in this appeal; (f) The Appellant’s proposed additional ground will bring before this honourable Court a fundamental issue which goes to the foundation of the proceedings of the trial Court and Court of Appeal regarding this appeal; (g) This application discloses exceptional circumstances; and (h) This honourable Court has the power to grant all the prayers in this application.

The application was supported by a 21 paragraph affidavit, deposed to by one Babatunde Ige, a Legal Practitioner in the Law Firm of Olaniwun Ajayi LP, Counsel to the Applicant and six exhibits marked Exhibits A-F. Paragraphs 12-16 of the affidavit are pertinent, and are hereunder reproduced: “12.

Upon further review of the processes filed on this matter, especially the Statement of Claim dated 22/11/12, filed by the 1st-4th Respondents, the Applicant’s Counsel discovered that the substance of the claim of the 1st-4th Respondents at the trial Court was to rescind the contracts for the sale of shares between the 1st-4th Respondents and the 5th Respondent on the basis of alleged vitiating factors – misrepresentation and illegality. 13.

Further to Paragraph 12 above, the Applicant’s Counsel resolved to file this application in order to obtain the leave of this Honourable Court to challenge the decision of the Court of Appeal on a fresh and additional ground of appeal bordering on the lack of the jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383 which culminated in this appeal. 14. The failure to include a ground of appeal bordering on the lack of jurisdiction of the trial Court to entertain Suit No.

FHC/L/CS/1383/2012 in the Appellant’s Notice of Appeal dated 09/03/18 (Exhibit C) and the Appellant’s Amended Notice of Appeal dated 18/02/20 and was filed on 02/03/20 (Exhibit D) was occasioned by inadvertence of counsel. 15. The period provided by the Rules of this honourable Court has expired. 16. The proposed additional ground of appeal is set out in ground 3.1 of the Proposed Amended Notice of Appeal. The said ground borders on the issue of lack of subject matter jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/12 which culminated in this appeal.

Now shown to me and marked Exhibit E is the Proposed Further Amended Notice of Appeal.”

In reaction to the Applicant’s Motion, the 1st-4th Respondents, filed a 28 Paragraph counter-affidavit, deposed to by one Babatunde Osinbajo, a Legal Practitioner in the Law Firm of F.O. Fagbohungbe & Co, Counsel for the 1st-4th Respondents, with annexures. I consider Paragraphs 12-18 to be relevant and I reproduce them hereunder: “12 – I know that the issue relating to the jurisdiction of the Federal High Court to entertain the 1st to 4th Respondents’ claims in Suit No.

FHC/L/CS/1383/2012 was raised by the Appellant as 1st Defendant, in Paragraph 15 of its Amended Statement of Defence and also by the 5th Respondent, as 2nd Defendant, which eventually filed a Notice of Preliminary Objection to that effect in the said Court. A copy of the Appellant’s Amended Statement of Defence dated 4/12/2014 as reproduced at pages 585 to 595 in Volume II of the Record of Appeal is attached hereto and marked Exhibit “LT2”. 13 – In a well-considered ruling delivered by the Federal High Court, per Honourable Justice J. T. Tsoho (now Chief Judge) on 15/1/2014, in Suit No.

FHC/L/CS/1383/2012, it was held by the Federal High Court that based on the peculiar facts and circumstances of the 1st to 4th Respondents’ case, the Federal High Court had the requisite jurisdiction to entertain the suit. Attached hereto and marked as Exhibit “LT3” is a copy of the said ruling as reproduced at pages 381 to 397 in Vol.

II of the Record of Appeal. 14. – I know that after the ruling of the Federal High Court was delivered as aforesaid, both the Appellant and the 5th Respondent voluntarily and/or deliberately elected not to appeal against the said decision to the Court of Appeal. 15. – I also know that the Appellant and the 5th Respondent herein voluntarily elected to submit to the jurisdiction of the Federal High Court before the matter proceeded to plenary trial. 16. – The Appellant also deliberately and/or voluntarily elected not to appeal against the ruling relating to the jurisdiction of the Federal High Court to entertain the suit filed by the 1st to 4th Respondents even after the Federal High Court delivered its final judgment in Suit No.

FHC/L/CS/1383/2012 on 14/12/2015. 17. – The same set of Counsel and/or law firm which represented the Appellant at the Federal High Court when the Federal High Court delivered its ruling on 15/1/2014 were also the set of Counsel and/or law firm which represented the Appellant in Appeal No.

CA/L/427/2016 at the Court of Appeal, in respect of the appeal against the final judgment of the Federal High Court from which the present appeal emanated. 18. – I know that the failure of the Appellant to appeal against the ruling delivered by the Federal High Court on 15/1/204 to the Court of Appeal was a voluntary and/or deliberate act on the part of the Appellant and due to any inadvertence.”

The Applicant, in its 13 paragraphed reply affidavit, averred thus at Paragraph 10: “10 – Contrary to the averments in paragraph 14, 15 and 16 of the BO Affidavit, I state as follows: 10.1 – The Appellant did not appeal the ruling because the Notice of Preliminary Objection dismissed by the trial Court was filed by the 5th Respondent and not the Appellant. 10.2 – The Appellant did not conceal the existence of the ruling from this honourable Court.

The ruling forms part of the records transmitted to this honourable Court and is set out at pages 381-397 Vol. 2 of the Record of Appeal. 10.3 – The jurisdictional issue in respect of which the Appellant seeks the leave of this honorable Court borders on the subject matter jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012. 10.4 – The Appellant was precluded from consenting or acquiescing to the trial Court’s jurisdiction to entertain Suit No.

FHC/L/CS/1383/2012, and 10.5 – Upon a re-examination of the 1st-4th Respondents’ Statement of Claim filed on 22/11/12 and the characterization of the relationship of the Appellant and the 5th Respondent by the Court of Appeal as a master-servant relationship in page 54 of the judgment of Court of Appeal delivered on 09/03/18, the Appellant decided to seek the leave of this honourable Court to challenge the jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012 via the Appellant’s application filed on 21/09/2020.

Now shown to me and marked as Exhibit UU1 is a certified true copy of the Statement of Claim.”

In its written address in support of the motion on notice, the Applicant submitted a sole issue for this Court’ determination, to wit: “Whether the Applicant is entitled to the prayers sought in the Application”

For the 1st-4th Respondents, the following two issues were submitted for determination, that is: 1. Having regard to the peculiar facts and circumstances of the instant case, whether this Honourable Court can validly exercise its jurisdiction to entertain the issue relating to the competence of the Federal High Court to hear and determine the 1st-4th Respondents’ suit? 2. Having regard to the fact the Appellant’s present appeal is incompetent ab initio, whether this Honourable Court can grant leave to the Appellant to further amend the Appellant’s Amended Notice of Appeal filed on 2/3/2020?

​Looking at the reliefs sought and the affidavit filed in the application however, the real question that requires answer in the application in my view is: – ‘Whether the Applicant is entitled to the prayers sought in the Application?”

Arguing in support of its Motion dated 21/9/2020, it is submitted for the Applicant that this Court has numerously held that to enable the discretion of this Court to be properly exercised in its favour, an Applicant in an application for enlargement of time to appeal or to seek leave to appeal, must adequately explain the cause of the delay in making the application and give cogent reasons why the application was not made within the time prescribed by the Supreme Court Act. The case of Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 268, was cited.

​Learned counsel for the Applicant invited the attention of this Court to paragraph 14 of the affidavit in support of the motion, and posited that the failure to appeal on the issue of jurisdiction of the Trial Court to entertain Suit No.

FHC/L/CS/1383/2012, which culminated in this appeal, as contained in Ground One of Exhibit E (The Proposed Further Amended Notice of Appeal), within the period stipulated in Section 27(2)(a) of the Supreme Court Act, was occasioned by inadvertence of counsel, and this Court has held in a plethora of authorities that the mistake of counsel should not be visited on his client. He called in aid, the case of Iroegbu Okwordu (1990) 6 NWLR (Pt. 159) 649 at 667, amongst others.

It is the argument of learned counsel for the Applicant that the Applicant, via paragraph 14, has satisfied the first condition laid down in the case of Williams v. Mokwe (supra), adding that the Applicant has demonstrated in paragraphs 12, 13 and 16 of the affidavit that the proposed additional ground of appeal has reasonable chances of success before this Court, especially as it relates to the issue of jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/20, which culminated in this appeal. Reliance was placed on the case of Sebastian Adigwe v. FRN (2015) LPELR- 24694 (SC).

Learned counsel for the Applicant opined that by the provisions of Section 233(2) of the CFRN, 1999 as amended, an appeal from the Court of Appeal to the Supreme Court on grounds of law alone does not require the leave of the Court of Appeal or the Supreme Court.

​According to him, the ground which complains about lack of subject matter jurisdiction to entertain an action, is a ground of law, for which no leave is required. He placed reliance on the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 492.

It is the Applicant’s position that the Applicant’s Ground One of Exhibit E (the Proposed Further Amended Notice of Appeal) is a substantial issue, which has good chances of success. This Court is urged to so hold and grant the application.

Contrariwise, it is submitted for the 1st-4th Respondents that as conspicuously shown in paragraphs 12 and 13 of the 1st-4th Respondents’ counter-affidavit, and as borne out of Exhibits LT2 and LT3 attached thereto, the issue relating to the jurisdiction and/or competence of the Federal High Court to entertain the 1st-4th Respondents’ suit was previously raised by the Applicant/Appellant at the Federal High Court and effectively resolved by the trial Court.

Learned Senior Counsel for the 1st-4th Respondents drew the attention of this Court to paragraph 15 of the Applicant’s Amended Statement of Defence at the trial Court, and noted that the issue of jurisdiction was adequately dealt with by the trial Court and cannot therefore qualify as a fresh issue. He alluded to pages 388-390 in Vol. II of the Record, where the trial Court held that issues relating to the sale and allotment of shares of a public company, fall within the purview of the Federal High Court.

It is the further submission of learned Silk that the purported “fresh issue” sought to be raised by the Applicant in this Court as contained in Ground One of Exhibit E, is not a “fresh issue” at all, as the said issue has been raised, considered and pronounced upon by the trial Court.

He maintained that having failed to appeal to the Court of Appeal, against the interlocutory decision of the trial Court and having voluntarily submitted to the jurisdiction of the trial Court, the Applicant cannot validly appeal against the decision of the trial Court, to this Court, without appealing first to the Court of Appeal. He relied on Section 240 of the CFRN 1999, as amended adding that the ruling of the trial Court on jurisdiction was never put before the Court of Appeal for consideration and therefore ought not to be entertained by this Court.

Reliance was placed, inter alia, on the following cases:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Idagu v. State (2018) LPELR 44343 (SC) Bello v. FRN (2018) LPELR 44465 (SC) Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78

Learned senior counsel for the 1st-4th Respondents opined further that the Applicant’s original Notice of Appeal filed on the 9/3/2018, was void ab initio as the said Notice of Appeal contained grounds of mixed law and facts, for which no leave was sought for and obtained. The case Obayuwana v. Adun (2020) 13 NWLR (Pt. 1741) 371, was cited.

​He maintained that save for Ground one of the original Notice of Appeal filed on the 9/3/2018, all the other grounds of appeal relate to the concurrent findings of fact by the trial Court and the Court of Appeal, for which leave was required, as contemplated by Order 2 Rule 32 of the Supreme Court Rules and Section 233(3) of the CFRN 1999 as amended. The consequence of the foregoing according to him, is that since the original Notice of Appeal filed on 9/3/2018 was void ab initio, this Court lacks the jurisdiction to entertain any amendment to the Notice of Appeal, or the appeal.

Reliance was placed on a host of authorities, including the locus classicus case of Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341, and the case of Tsokwa Motors (Nig.) Ltd V. UBA PLC (2008) 2 NWLR (Pt. 1071) 347.

This Court is urged in the circumstance, to refuse and dismiss the application to further amend the Amended Notice of Appeal.

In reply, it is submitted for the Applicant that the arguments of learned senior counsel on behalf of the 1st-4th Respondents, on the meaning of “fresh issue”, is flawed.

Relying on the case of Olalomi Ind. Ltd v. NIDB Ltd. (2009) 16 NWLR (Pt. 1167) 266 @ 286, learned counsel for the Applicant posited that a fresh issue is an issue which was not canvassed at the lower Court and pronounced upon by the lower Court. He maintained that going by the definition of “fresh issue” by this Court in Olalomi Ind. Ltd v.

N.I.D.B Ltd (supra), the Applicant’s jurisdictional issue relating to the subject matter jurisdiction of the trial Court to entertain Suit No: FHC/L/CS/1383/2012, is a fresh issue because the issue as to the subject matter jurisdiction of the trial Court to entertain Suit No: FHC/L/CS/1383/2012 was not raised at the Court of Appeal.

​On whether the grounds in the Applicant’s original Notice of Appeal filed on 9/3/2018 contained grounds of mixed law and facts, for which no leave was sought for and obtained, learned counsel for the Applicant contended that contrary to the arguments of senior learned counsel for the 1st-4th Respondents, all the grounds in the original Notice of Appeal are grounds of law, for which no leave was required. He relied on the case of Chrome Air Services Ltd & Ors v.

Fidelity Bank (2017) LPELR 43470 (SC), and argued that where there exists at least one ground of law in a Notice of Appeal, such a ground of law is capable of sustaining the appeal. He argued further that as borne out of the records before this Court, the Applicant filed an application for the trinity prayers and this Court granted the Order on 11/02/2020. The effect of the Order, according to him, is that any defective ground in the initial Notice of Appeal has been regularized by this Court.

Consequently, this Court is urged to discountenance the submissions proffered on behalf of the 1st-4th Respondents, and grant the Applicant’s application.

​My Lords, from the foregoing submissions of counsel on both sides, it is apparent that the hurdle before us is a determination of whether or not, the Applicant is entitled to a favourable exercise of our discretion, to wit: granting the Applicant leave to further amend its amended Notice of Appeal, by the addition of a new ground one which reads as follows: GROUND ONE The lower Court erred in law when the lower Court affirmed the judgment of the Federal High Court that lacked the subject matter jurisdiction to entertain the 1st-4th Respondents’ claim. PARTICULARS i.

In paragraph 15 of the Amended Statement of Defence dated 14/01/13, the Appellant raised the lack of subject matter jurisdiction of the Federal High Court to entertain the 1st-4th Respondents’ claim. ii. The Federal High Court is a specialized Court with limited jurisdiction, iii. The 1st-4th Respondents’ claim of rescission of sale of shares transactions on the allegation of fraudulent misrepresentation, as constituted in their Statement of Claim (SoC), is rooted in contract. iv.

The Court of Appeal found that the Appellant and the 5th Respondents were joint tort feasors liable to the 1st-4th Respondents. v. Contractual and tortious claims do no fall within Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. vi. The absence of subject matter jurisdiction renders the whole proceedings of the Federal High Court and the lower Court a nullity.

It has been argued by learned senior counsel for the 1st-4th Respondents that the complaint of the Applicant is not a fresh issue.

According to learned Silk, the issue of the jurisdiction of the trial Court was raised via the Preliminary Objection filed by the 2nd Defendant, now 5th Respondent, and all the parties, including the Applicant herein made extensive arguments thereto, before the trial Court made a pronouncement on the issue of its jurisdiction, as follows: “It is on record that the learned Counsel for the 1st Defendant referred to paragraph 14 of her Statement of Defence (paragraph 15 of the Amended Statement of Defence) which averred that she shall during or before trial contend that this Court lacks jurisdiction to entertain the Plaintiffs’ suit.

He therefore stated, having completely aligned himself with the submissions of the 2nd Defendant (sic)… Upon perusal of the entire reliefs sought by the Plaintiffs as contained in their Statement of Claim in this Suit dated 22nd November, 2012, I hold the respective view that the Plaintiffs’ cause of action borders on allotment of shares of the 2nd Defendant, by way of private placement. This, in my humble opinion is a transaction arising from the operation of CAMA.

To that extent, the subject matter of the Plaintiffs’ claims falls within the purview of Section 251(1)(e) of the CFRN 1999… Pursuant to this Constitutional provision, the Federal High Court is vested with exclusive jurisdiction in respect of such issue as sale or allotment of company shares, which in my humble view, is a transaction that arises from the operation of CAMA …”

As can be garnered from the Applicant’s motion paper, I agree with the arguments of learned SAN that the -issue classified as “fresh issue” relates to the jurisdiction of the Federal High Court to entertain the suit filed by the 1st-4th Respondents. The issue as to the jurisdiction/competence of the Federal High Court was raised and effectively resolved by that Court. The settled position of the law is that a “fresh issue” is a new point of law, which was not canvassed or ventilated by any of the parties at the trial Court and decided upon before it is raised at the appellate Court.

In the instant application, the issue of lack of subject matter jurisdiction of the Federal High Court to entertain the 1st-4th Respondents’ claim was raised and determined at the trial Court and cannot therefore qualify as a fresh issue.

The next point made by learned Silk is that based on the general rule, a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Any ground of appeal that does not relate to the judgment of the Court, is incompetent.

​I am ad idem with learned senior counsel that the well settled proposition of law is that grounds of appeal are not formulated in abstract. For grounds of appeal to be competent, they must be predicated on the ratio of the decision appealed against. In other words, the grounds of appeal must be based on the decision of the lower Court, which should in turn be based on the issues joined by the parties in their pleadings, evidence adduced in support thereof and the submissions of counsel on the law applicable to the facts so established by evidence. See: Sogunro & Ors v.

Yeku & Ors (2017) LPELR 41905 (SC) Egbe v. Alhaji (1990) 1 NWLR (Pt. 127) 546 Chami v. U.B.A. Plc (2010) 6 NWLR (Pt.1191) 474 @ 502. I must however point out that where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision or constitute a challenge to its ratio decidendi. See: FSB International Bank Nig. Ltd v Imano Nig. Ltd (2000)11 NWLR (Pt.678) 620 at 639, A.G. Kwara State & Anor v.

Lawal & Ors (2017) LPELR- 4234 (SC); Madubuike v Madubuike (2001)9 NWLR (Pt.719)698 at 707.

That being said, the proposed additional ground of appeal, being a jurisdictional issue, can be raised at any stage of proceedings, including this Court for the first time. In FHA v Kalejaiye (2010) 19 NWLR (Pt.1226) 149 at 164 para b, this Court, per Rhodes Vivour, JSC said:- “The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time.

Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised, the Court is bound to examine whether it is spurious or genuine ground …”

Another point made by learned Silk is to the effect that the Appellant’s original Notice of Appeal filed on the 9/3/2018, was void ab initio and cannot be a valid plank upon which any amendment can be sought for and granted.

With due deference to learned senior counsel, and as rightly submitted by the Applicant’s counsel, it is impermissible to raise the issue of competence of a Notice of Appeal in a counter-affidavit. The proper approach, where the competence of an appeal is being challenged, is to raise a preliminary objection to the hearing of the appeal, based on the alleged incompetent grounds of appeal. In the instant case, the submissions made on behalf of the 1st-4th Respondents ought to be limited to opposing the prayers sought in the Applicant’s application.

It should not be extended to attack the competence of the Applicant’s appeal.

In the extant application, it is trite law that any Appellant is at liberty either to file additional grounds of appeal on receipt of the records or even to substitute new grounds for the original grounds filed before the receipt of those records. The aim being that an Appellant should feel quite free to urge, agitate and canvass any point or points which he thinks will help the Court to arrive at a just determination of the appeals See:Unilag & Anor Aigoro (1985) LPELR 3418 SC.

It is of utmost importance however that when applications for leave to file and argue additional grounds of appeal or for leave to argue grounds of law and mixed facts and law or facts alone are being entertained, the Court should scrutinise the grounds and satisfy itself that such grounds of appeal are competent, and that the Applicant has adduced cogent reasons for the favorable exercise of the Court’s discretion. See Peters & Anor v. State (1992) LPELR 2914 SC.

​Looking closely at the relevant averments in the Applicant’s supporting affidavit as reproduced above, (particularly Paragraph 14 thereof), it can be said that the Applicant seemed to have attributed his failure to include a ground of appeal bordering on the lack of jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012 in the Appellant’s Notice of Appeal dated 09/03/18 (Exhibit C) and the Appellant’s Amended Notice of Appeal dated 18/02/20 and was filed on 02/03/20 (Exhibit D), to “the inadvertence of counsel”.

It is an established principle of law, that Courts do not normally punish a litigant due to the mistake of his counsel. Mistake or inadvertence of counsel is neither magic nor sacrosanct such that once raised as the cause of a lapse, the Court must accept or waive it in favour of the claimant of such excuse or as reason to condone or overlook such lapse. It however must be proved that it is a genuine mistake.

The Courts must be satisfied not only that the allegation of the fault of counsel is true and germane, but also that it is availing, having regard to the circumstances of the particular case.

​In this instant case, the Applicant has not demonstrated to this Court what occasioned the inadvertence on the part of counsel. Courts of law do not embark on conjecture or guess work as same can hardly produce a just and equitable decision. Where an Applicant prays the Court to exercise its discretion in his favour judicially and judiciously, it is his duty to place before the Court sufficient materials upon which the Court will rely in granting his application.

This Court has held in several authorities that the exercise of discretion is not based on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. In other words, it is not an indulgence of a judicial whim, but the exercise of judicial judgment based on fact guided by the law or the equitable decision. See: Adigwe v. FRN (2015) LPELR 24694 SC; General & Aviation Services Ltd v. Thahal (2004) LPELR 1317 SC.

​Thus, the mere making of whimsical statements which do not supply convincing, satisfactory, concrete and cogent reasons in explaining away the delay or tardiness, can hardly be acceptable to this Court. Even if the complaint of mistake or inadvertence of counsel is correct, the averments of the Applicant in the supporting affidavit clearly showed lack of diligence, carelessness and/or indifference on the part of both Counsel and Applicant.

From the averments of the Applicant, I am not convinced that they constitute special circumstances as would justify this Court to exercise its discretion to grant the application to seek leave to file an additional ground of appeal. With regard to the additional ground of appeal contained in the proposed further amended notice of appeal, even if the grounds of appeal might appear to show prima facie good cause, the failure of the Applicant to meet the other condition of establishing special circumstances will render the application incompetent and therefore liable to be refused.

Accordingly, the application filed on 21/09/2020 has no merit and is therefore dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead ruling of my learned brother Aboki, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead ruling that the application is unmeritorious and deserves to be dismissed. Accordingly, it is dismissed by me. Application dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead ruling just delivered by my learned brother, Aboki, JSC, and I agree with him that this application, which invokes the discretion of this Court, is unmeritorious, and must be dismissed.

A Party applying to this Court to exercise its discretionary power in his favour, must put up a convincing argument showing that in fact and in law, he is entitled to the decision, he applied for – see Re: Alase (2002) 10 NWLR (Pt. 776) 553. It is also important for this Court to scrutinize the grounds of appeal and satisfy itself that such grounds of appeal are competent – see Peter V. State (1992) LPELR-2914(SC).

I have gone through the Affidavit in support of the application, and I agree with my learned brother that though the grounds of appeal show good cause on the face of it, the Applicant has not explained any special circumstances to justify granting this application in its favour.

It is for this and the other persuasive reasons in the lead ruling that I also dismiss this application. I also abide by the order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the ruling of my learned brother HON. JUSTICE ABDU ABOKI, JSC. I agree with the reasoning and conclusion that this application is wholly without merit and should be dismissed.

This is an application brought under the extant rules of this Court for three orders of this Court in favour of the Applicant, granting it extension of time to seek leave to appeal, extension of time to appeal and leave to appeal on a fresh issue of jurisdiction. The main reason given by the Applicant’s counsel for delay in bringing this application is the phrase “inadvertence of counsel” My lords, that phrase since its coinage and acceptance by the Courts has led to a multitude of sins.

All counsel know that since the stand of this Court is that it would not visit the sin of the counsel on the litigant, then counsel is at large to bring appeals to this Court whenever the whims of the litigant dictates as long as it can hide under “inadvertence of counsel”. Justice is a three (3) way stream for society to be at peace. The stream of justice must flow to the Applicant, the Respondent who is the judgment creditor, and the society at large. ​In this particular case, that universal and whimsical excuse without indicating particulars will not avail the Applicant.

I agree with the stern view of my brother in the lead ruling that this Court will no longer tolerate unsatisfactory and whimsical reasons for failure to do the needful within time. No reasons not to talk of special circumstances have been given.

For the reasons given above and more comprehensive reasons given by my learned brother, I dismiss this application as unmeritorious. I abide by the consequential orders in the lead ruling.

TIJJANI ABUBAKAR, J.S.C.: This is an application containing prayers A-F, for order enlarging time to file additional ground, leave to file additional ground, leave to raise fresh issue on appeal dealing with lack of jurisdiction to hear and determine the suit, leave to incorporate the ground on fresh issue and re-number the grounds.

Applicant furnished grounds for the application, affidavit in support and the judgment of the Federal High Court and other exhibits.

The Respondent filed counter-affidavit opposing the application, address in support of the application and reply to counter-affidavit.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

My learned Brother ABOKI JSC, granted me the privilege of reading the comprehensive ruling just rendered dismissing the application. I am in total agreement with the reasoning and conclusion, I therefore adopt the ruling as mine. I also dismiss the application and abide by all consequential orders.

Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgement): The Applicant, who is the first Respondent in the substantive Appeal, is praying the Court for leave to adduce additional evidence on appeal.

The Appellant/Respondent (hereafter referred to as the Respondent), was the plaintiff at the Federal High Court wherein it claimed inter alia: A Declaration that by virtue of a Certificate of Trademark Registration issued to the Plaintiff in Class 9 – and in Class 11 – respectively and particularly the registration since 1996, the Plaintiff is entitled to the exclusive use of the Trademark “LEXUS” in Classes 9 and 11.

The Applicant, as the first Defendant at the trial Court, denied the allegations, and also claimed that it is the registered proprietor and owner of the Trademark LEXUS in Nigeria with respect to vehicles and spare parts in Class 12 of the Fourth Schedule of the Trademarks Act.

But the Applicant failed to tender any proof of registration of its LEXUS trademark registration in the said Class 12, and in his judgment delivered on 21/6/2016, the learned trial Judge, Buba, J., held that – The failure of the 1st Defendant to tender any proof of registration of its purported LEXUS trademark in any Class whether valid or not – shows clearly that the 1st Defendant lacks any legal right whatsoever to properly defend this Suit and should have simply admitted all the averments of the plaintiff in its Statement of Claim – The Court can only adjudicate this matter based on the preponderance of evidence before [it] as proffered by the Parties and same cannot be assumed or inferred.

The trial Court found in favour of the Respondent, and the Applicant appealed to the Court of Appeal. Although its Appeal was successful, the Court of Appeal also observed in its judgment of 29/12/2017 that: Exhibit P4 is a detached car stereo System labelled “LEXUS Premium System”. This fact is undisputed by the parties herein. However, the Appellant argued that it does not fall within the categories of goods in respect of which the 1st Respondent owns a registered Trademark within Classes 9 and 11 under the Fourth Schedule of the Trademarks Act.

That Exhibit P4 is a component part/apparatus of a vehicle in Class 12. Appellant’s Counsel submitted that the Appellant had shown ownership and proprietorship of the Trademark LEXUS for goods in Class 12. This assertion is, however, not borne by the records or traceable to the evidence generated at the trial.

As submitted and rightly too in my view, by learned counsel for the 1st Respondent, there is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, the Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in covers Class 12. Class 12 covers Vehicles; apparatus for locomotion by land, air, or water – Argument of counsel contained in the Brief of Argument cannot take the place of evidence.

At the end of the day, the Court of Appeal found that Exhibit P4 was not used by the Applicant in relation to goods in respect of which the Respondent has a registered Trademark and held that the trial Court erred in concluding that it infringed on the said registered Trademark. ​ The Respondent is the aggrieved Party in the substantive Appeal, but the Applicant is praying this Court for leave to adduce additional evidence on appeal by tendering the following documents as Exhibits: – Certificate of Registration dated 14/1/1997 – for LEXUS & DEVICE in Class 12 – Certificate of Renewal dated 10/1/1997 – for LEXUS & Device in Class 12 – Certificate of Renewal dated 6/12/2010 – for LEXUS & Device in Class 12.

The Grounds upon which the Application is brought are as follows: a) The Registration and Renewal Certificates sought to be tendered would have an important effect on the appeal pending before the Supreme Court, as it would establish the Applicant/Respondent’s statutory rights to the LEXUS & Device Trademark in Class 12.

This fact was admitted by the Respondent/Appellant in its Reply to the Statement of Defence. b) The Applicant had previously pleaded the above-mentioned Registration and Renewal Certificates in its Statement of Defence and had intended to tender same during proceedings at the Trial Court. c) The Applicant was, however, unable to tender the Registration and Renewal Certificate during trial, as they were missing from [its] Solicitors’ records.

Applicant conducted a painstaking search in its office at No. 3 Sinari Daranijo Street, Victoria Island, Lagos to locate the Registration and Renewal Certificates all to no avail. The Certificate could not be located. d) The Applicant’s Solicitors attempted with all reasonable diligence to obtain certified copies of the Trademark registration and renewals from the Trademark Registry.

This was however abortive, as the provision of missing copies of the Registration/ Renewal Certificates were a necessary precondition to obtain certified copies from the Trademarks Registry. e) The Applicant’s Solicitors eventually obtained copies of the Registration and Renewal Certificates in 2017 during the pendency of the appeal at the Court of Appeal. The said copies were obtained from the Applicant, who had also checked its records and only located the said Certificates during the appeal at the Court of Appeal, when the matter was already ripe for hearing.

The Applicant located the certificates from its archive/database and sent same to its Solicitors. [Attached as Exhibits TMC1 to TMC3 are Certified Copies of Certificates for LEXUS & Device in Class 12 registered as of 22/1/1990, and dated 24/1/1997, 10/7/1997 and 6/12/2010] f) The Registration and Renewal Certificates sought to be tendered are credible evidence, which are unlikely to be uncontroverted, as they are Certified True Copies issued by the Trademarks Registry.

The Respondent had previously admitted the existence of this Trademark registration and renewals in its Reply to the Statement of Defence. g) The evidence sought to be tendered would not change the character of the case from what existed at the trial Court and Court of Appeal, as the fact of [its] Trademark registration was pleaded in its Statement of Defence. h) The additional evidence sought to be adduced is weighty and material to the determination of the Applicant’s Statutory rights in the Trademark LEXUS & Device for goods in Class 12. i) The evidence sought to be tendered would have influenced the decision of the trial Judge in the Applicant’s favour, in view of the statutory rights and protection afforded by the trademark registration and renewal for LEXUS & Device trademark in Class 12. j) It would be in the interest of justice and fair hearing to grant this Application.

​In addition to the 16-paragraph Affidavit in support of the Application, 9-paragraph Counter-Affidavit in opposition, and 15-paragraph Reply to the said Counter-Affidavit, the said Parties filed and adopted their respective Written Addresses, and in the Applicant’s Written Address, it was submitted that the two Issues for Determination are as follows: 1. Whether this Honourable Court has the requisite power to grant an Application of this nature; and 2.

Whether the circumstances of the instant case are such as this Honourable Court should exercise its discretion in favour of the grant of the Application, in accordance with established principles of law.

The Respondent formulated the following Issues for Determination – 1. Whether the circumstances of the instant Application are such that this Honourable Court ought to exercise its discretion in favour of the 1st Respondent/Applicant. 2.

Whether this Honourable Court should grant the instant Application, which seeks to challenge the concurrent findings of the lower Courts when the Applicant has not filed a Cross-Appeal. ​ First off, the question of whether this Court has the power to grant this Application or not cannot be an issue, as it is brought pursuant to Order 2 Rule 12(1) & (2) of the Supreme Court Rules, which says that: (1) A Party, who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with any proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal. (2) The Application shall be supported by affidavit of the facts on which the Party relies for making it and of the nature of the evidence or the document concerned. ​Thus, this Court has the power to entertain applications of this nature and grant same in appropriate circumstances, which are well laid out.

What’s more, the Respondent’s contention that the Applicant has not filed a cross-appeal, therefore, this Court cannot grant the Application does not require any in-depth analysis. There is no provision of law or rule of practice that says a Respondent must file a Cross-Appeal before he brings an application under the said Order 2 Rule 12(1) of the Rules. So, the Respondent’s argument that the Applicant seeks to set aside concurrent findings of the lower Courts without filing a Cross-Appeal, is of no moment since this Court is not dealing with the main Appeal.

The position of the law, as decided in a long line of cases, is that this Court is vested with discretion to grant applications of this nature, therefore, the issue that calls for determination is simply whether in the circumstances of this case, this Court should exercise its discretion in favour of the Applicant and grant the said Application as prayed.

The Parties, in their Written Addresses, set out guiding principles or conditions that must be satisfied, and which must co-exist, before an application of this nature is granted. The Applicant cited Asaboro v. Aruwaji & Anor (1974) 1 All NLR (Pt. 1) 140, while the Respondent cited Owata v. Anyigor (1993) NWLR (Pt. 276) 390, Enekebe v. Enekebe (1964) 1 All NLR 42, Asaboro v. Aruwaji (supra) and Obasi v.

Onwuka (1987) 3 NWLR (Pt. 61) 364, wherein this Court held that – (a) The fresh evidence sought to be adduced, must be such that could not have with reasonable diligence, been obtained for use at the trial. (b) The fresh evidence is such that if admitted would have an important, although not necessarily a crucial effect on the case. (c) The fresh evidence must be such as is apparently credible in the sense that is capable of being believed and it need not be incontrovertible. (d) The additional evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court. (e) The fresh or additional evidence sought to be introduced must be material and weighty, although not conclusive.

On (a), the Applicant referred to paragraphs 7 & 8 of its Affidavit and argued that the documents could not with reasonable diligence, have been obtained for use at the trial, and as evidence of its clean hands, “it is on record that it pleaded the (said) documents at the trial Court”.

On (b), it submitted that it would have a fundamental effect on the justice of the case; and when juxtaposed with Respondent’s case that the use of a car stereo in a LEXUS branded car is an infringement of its LEXUS trademark registration in Class 9, this Court will find that the contention cannot stand in the face of the existence of a prior and competing legal right for car fittings, etc., which includes car stereo.

It also contends that the said Certificates are ex facie regular and credible pieces of evidence; that no oral evidence is required as the documents speak for themselves and corroborate and complement the existing evidence in the Record of Appeal; and that if received, they “will have an important, crucial and pivotal effect on the Appeal”.

In response to the Respondent’s contention that the Certificates were not missing, and could have been obtained, it cited Hakair Ltd. v. Sterling Bank (2019) LPELR-47638(CA), in which the Court of Appeal followed the decision of this Court in General & Aviation Serv. Ltd. v. Thahal (2004) 10 NWLR (Pt. 880) 50, and argued that the averments in the Counter-Affidavit are all hearsay evidence and so, incompetent, as the Respondent does not have personal knowledge of its Records.

As to whether the evidence would have influenced the decision of the lower Court, it referred to the trial Court’s statement regarding its failure to tender “any proof of registration”, and argued that if the said pieces of evidence were available at the trial Court, it would have influenced the trial Court’s judgment; that the evidence is weighty and material as the Certificates sought to be adduced in this Court formed “the kernel of the dispute at the trial Court”; that even the dictum of the trial Judge emphasized the importance of the Certificate; and that: The materiality of the evidence sought to be adduced is clearly demonstrated in the statement of the trial Judge – and that this Application is not designed to overreach the [Respondent] or spring a surprise when the Appeal is heard.

If it were so, the Applicant would not have pleaded the Registration and Renewal Certificates at the trial Court.

The Respondent, however, urged the Court to dismiss the Application, as the Applicant has not made out any case to warrant the exercise of the Court’s discretion in its favour. It cited Obasi v. Onwuka (supra) and UBA Plc. v. BTL Ind. Ltd. (2005) LPELR-8065 (SC) and submitted that appellate Courts lean against receiving fresh evidence on appeal, and this Court exercises its discretion in exceptional circumstances.

Furthermore, that the Applicant did not include the Certificate of Registration of its alleged “LEXUS & Device” trademark in Class 12, in the List and Copies of Documents to be relied upon at the trial and did not include it in the Additional List and Copies of Documents, thus, it never intended to tender the Exhibits at the trial, and its decision to seek leave to tender them now in this Court is just an after-thought.

It also contends that the Exhibits do not qualify as fresh evidence and citing Anatogu & Ors v. Iweka II & Ors. (1995) LPELR-484(SC) and Willoughby v.

IMB (1987) LPELR-3495(SC) on what is fresh evidence, it argued that the Exhibits do not qualify as fresh evidence because: – Exhibit TMC1 is the Certification of Registration dated 24/1/1997. – Exhibit TMC2 is the Certificate of Registration dated 10/7/1997. – Exhibit TMC3 is the Certificate of Registration dated 6/12/2010. – These documents were in existence prior to the trial of this matter. – The Writ of Summons commencing this Suit was filed on 12/12/2014. – Exhibits TMC1 – TMC3 do not relate to something that has happened after the trial of this case, and they did not come to the knowledge of the Applicant after the trial of the matter at the Federal High Court. – The Exhibits did not become newly available and obtainable. – The Exhibits have at all material times been in the Applicant’s custody prior to the trial, during the trial, and after the trial of this matter. – The Exhibits were at all material times in the archives/database of the Applicant, who deposed in Paragraph 9 of the Affidavit in support of the Motion on Notice for leave to adduce fresh evidence that the Certificates were located from its archives/database. – The Applicant could have easily obtained certified true copies of the Exhibits from the 2nd Respondent. – There is no evidence that the Applicant ever applied for the certified true copies of the Exhibits during the trial of this case. – The 2nd Respondent is the statutory custodian of the Exhibits, which the Applicant seeks to tender, and the documents have been available to the members of the public at all material times. – The Applicant never tendered to rely on Exhibits TMC1 – TMC3 at the trial of this case as shown in Exhibits P1-P2. – The Exhibits sought to be tendered ought to have been adduced to establish pleaded facts at the trial of this case before the trial Court. – The Applicant had the opportunity to tender Exhibits TMC1-TMC3 at the trial High Court but deliberately refused, neglected, and failed to do so.

It argued, citing Statoil Ltd. v. Inducon Ltd (2018) LPELR-44387 (SC) that Parties are required to adduce the evidence they need at the trial, and where any of them fails to utilize such opportunity, such evidence will hardly find its way into the body of evidence on appeal; and that the Exhibits are not new and were available for use by the Applicant, who failed to utilize the opportunity that it had at the lower Courts.

It further submitted that strangely, the Applicant never searched its archives/database when the matter was at the Court of Appeal, and suddenly discovers the documents after the hearing of the Appeal and now seeks to tender them at this Court as additional/fresh evidence; that it failed to meet the level of reasonable diligence expected from an Applicant; and that it never intended to tender them because they were controversial, and were not included in the Lists of Documents.

Furthermore, that it could easily have obtained them from the 2nd Respondent, who is the statutory custodian of Register of Trademarks in Nigeria, in line with Section 2 of the Trademarks Act; and that the Applicant ought to have done any of the following to establish that it in fact exercised reasonable diligence to obtain the said documents: – Apply for and obtain the Certified Copies of Exhibits TMC1-TM3 from the 2nd Respondent during the trial of this case. – Apply to the 2nd Respondent for an extract of the Register of Trademarks relating to the entries on the registration of the “LEXUS & DEVICE” which it claimed it had in Class 12. – Subpoena the Registrar of Trademarks, who was a party to the Suit, to produce the Certification of Registration. ​ It argued that the Applicant never did any of the above, which shows that this Application is an after-thought designed to repair the bad case that it presented at the lower Courts; and that the procedure for admitting further evidence is not at the disposal of an indolent litigant, and cannot be used for the repair of a bad case at the end of the trial.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

It also contends that the admission of those Exhibits in this Court will not have an important effect on this case because the description of goods in respect of which it, the Respondent, registered “LEXUS” trademarks in Classes 9 and 11 is different from the goods in Class 12 and Applicant’s use of “LEXUS” for goods in Class 9 will still constitute an infringement of its own registered “LEXUS” trademarks in Class 9, thus, the admission or otherwise of the Exhibits in evidence will not have any effect on the outcome of the Appeal, and there is nothing to show that they will assist this Court in resolving issues in the Appeal.

It argued that the Exhibits are not credible as the description of goods for which Exhibit TMC1 was purportedly registered particularly “parts of and fittings, accessories and components for all the aforesaid goods” is extraneous and goes far beyond the description of goods in Class 12 as contained in the Trademarks Act and Nice Convention of 1987, and this discrepancy has impugned the credibility of the Exhibit. ​ It submitted that if it had been tendered at the trial, it would have cross-examined the Applicant’s witness, as well as the 2nd Respondent, on the credibility, validity and compliance of the said document with extant laws, citing Abu v.

Ahmed (2016) LPELR-41327. Furthermore, that the Exhibits would not have influenced the trial Court’s judgment because they were not material and never formed part of the crux of the issues at the lower Courts; and assuming without conceding that the Applicant has a valid registration of “LEXUS & Device” in Class 12, it can still infringe and violate its own LEXUS trademarks in Class 9.

Its contention is that this Application was designed to overreach it, as the Applicant had the opportunity to tender the Exhibits at the trial, where it could have cross-examined its witness, but it failed to tender the documents because of indolence; that the impact of the Exhibits on the case is insignificant; that the credibility of the Exhibits is in issue and will open room for cross-examination before this Court; and that admission of the Exhibits without affording it the opportunity to cross- examine the Applicant’s witness on the credibility of the documents, will violate the principles of fair hearing enshrined in the Constitution.

The Applicant argued in its Reply on Points of Law that the relevant date is not the date of registration and renewal of the Certificates, but the date the Certified True Copies of the said Certificates were issued; that in line with the decision in Dike-Ogu & Ors v.

Amadi & Ors (2019) LPELR-47847(SC), Copies of the Certificates were located during the appeal at the Court of Appeal and certified copies were issued in 2018, when the appeal was pending in this Court; that the said Exhibits are therefore fresh evidence to the extent that they were only obtained after the judgment of the Court of Appeal was issued in its favour in 2018.

It also cited the Court of Appeal’s decision Ombugadu v. CPC & Ors (2012) LPELR-8602(CA) that was affirmed by this Court in CPC & Anor v. Ombugadu & Anor (2013) LPELR-21007(SC), and submitted that the person with custody of the documents was the 2nd Respondent, who declined to issue a certified copy until a photocopy of the document is presented.

Therefore, there was no way that it could by reasonable diligence produce the copies of the certificates that were missing from its records; that it continued with its search until it located the copies from its archives, whereupon, it filed this Application in this Court.

Furthermore, that the evidence would have influenced the decision of the Court of Appeal, which went ahead to hold that the purported evidence of infringement was a good in Class 12 and not a product in Classes 9 & 11; and the implication of that finding is that it would have reinforced a case of non-infringement, citing Hip Foon Hong v. Neotia & Co. (1918) AC 888 that was endorsed in Ombugadu v. CPC (supra).

On whether the documents are credible, it argued that all that the Respondent has done is “to prematurely controvert the documents”, which are credible and believable, being certified true copies of public documents that can be tendered from the bar, and 2nd Respondent, who issued them has not challenged the documents in any manner; and its puerile attempt to controvert facts in the document is not only premature, but an attempt to waste the precious time of this Court.

​In response to the Respondent’s argument on description of goods, it submitted that Class 12 description of goods clearly covers “Parts of and fittings, accessories and components for all the aforesaid goods” with respect to vehicles, which would include a car stereo, and is the evidence that the Respondent is trying with all its strength to endorse, when neither Class 9 nor Class 11 description of goods refers in any way to a car stereo as a good; that a car stereo is an integral part of the apparatus for a vehicle and readily fits into Class 12, and that goods in Classes 9 & 11 does not include vehicles spare parts like a car stereo, therefore, the reference to “parts of and fittings, accessories and components for all the aforesaid goods” in the certified true copies of the said trade mark registrations and renewal is credible and in order.

As to the Respondent’s argument on fair hearing, it submitted that the said Exhibits are certified copies of public documents, which can be tendered from the bar, without cross-examination, citing Kawu v. Minister, FCT (2016) LPELR-41142(CA), Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 & Okiki II v. Jagun (2000) 5 NWLR (Pt. 655) 19.

​I have considered the pros and cons of granting this Application and a major factor that weighs heavily in the Applicant’s favour is that the documents sought to be tendered were pleaded, and the Respondent admitted in its Reply to the Applicant’s Statement of Defence that the Applicant had “registered the Trademark to LEXUS (word) in Class 12”. This is a crucial factor in the scheme of things because the Application would not stand a chance, if this were not the case – see Adeleke v.

Aserifa (1990) 3 NWLR (Pt. 136) 94, wherein Karibi-Whyte, JSC, said: Where evidence is available and could with reasonable care and diligence be made available to the Applicant at the time of the trial, the Court of Appeal will refuse to exercise its discretion to receive such evidence. However, if [he] referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it.

It is trite law that the Court must always consider whether there are exceptional circumstances to warrant granting the Application and, whether this would be in furtherance of the justice of the case – see Owata v.

Anyigor (supra), wherein Karibi-Whyte, JSC, also observed: It is in the interest of justice, the efficient and effective administration of justice, and to minimize prolongation of litigation, to ensure that evidence, which ought to be admitted at the trial, but was not because diligent search did not lead to its recovery, is received in evidence on appeal When subsequently discovered, and is sought to be admitted. The maxim rei publicae ut sit finis litium is not only a statement of public policy, it is a principle of justice of undoubted relevance in all cases.

It will not be justice to refuse to receive relevant and material evidence relied upon by Parties.

In this case, the first question that rears its head relates to “reasonable diligence,” which is an alternate term for due diligence, and it means “the care and attention that is ordinarily exercised by a reasonable and prudent person under the circumstances” – definitions.uslegal.com.

The Applicant averred in paragraphs 7 & 8 of its Affidavit that it’s Solicitors were unable to tender the said Certificates at the trial Court, as they were missing from its records, and though they “conducted a painstaking search in its office”, the Certificates could not be located; and they attempted “with all reasonable diligence” to obtain certified copies from the second Respondent, but did not succeed in doing so, because provision of the missing copies of the said Certificates were a necessary pre-condition to obtain certified copies from the Registry.

The Respondent argued that it could have applied and obtained the certified true copies from the second Respondent or subpoena the Registrar to produce them. But the point being made is that Applicant found itself in a Catch-22 situation, which is described as an impossible situation because you cannot do one thing until you do another thing, but you cannot do the second thing until you do the very first thing.

What is the point of the subpoena if second Respondent had to see copies of the missing Certificates before issuing certified copies? As it is, the Applicant’s assertion that it attempted with “all reasonable diligence” to obtain certified copies of the Certificates is not disputed.

The Respondent also raised a hue and cry over the dates on the said Certificates, but as the Applicant submitted, it is the date that the certified true copies were issued that matters, and they were issued in 2018 when the Appeal was pending in this Court – see Dike-Ogu v. Amadi (supra), cited by the Applicant, wherein this Court admitted the certified true copy of a 1928-1931 Report issued after the trial in 2010.

Of course, the said additional evidence, if admitted, would have an important effect on the case. For starters, it would put the records straight because the two lower Courts commented on the fact that the Applicant did not show the existence of a Lexus Trademark in Class 12.

The trial Court went as far as to say that since it failed to tender any proof of the said registration, the Applicant “should have simply admitted all the averments of the Plaintiff in its Statement of Claim”, and even as the Court of Appeal found in its favour, it observed that: There is no evidence on record, particularly Certificate of Registration, to show the existence of any LEXUS Trademark in Class 12, Appellant did not lead any credible evidence to prove the fact that it is the registered owner or proprietor of the Trademark LEXUS for goods in Class 12.

More importantly, the fact that the Respondent admitted in its Reply to the Applicant’s Statement of Defence that Applicant registered the “Trademark to LEXUS (word) in Class 12”, makes it imperative that the documents, which are “apparently credible” in the sense that they are, thereby, capable of being believable, must be admitted in evidence.

There is no question from the comments of the lower Courts that the said additional evidence, which are indeed material and weighty, could have influenced the judgment of the trial Court, and would paint a better picture of the Court of Appeal’s Judgment in the main Appeal.

Overall, I am not swayed by any of the Respondent’s arguments against the Application. The Application is not an afterthought and far from being used for the repair of a bad case after the trial of the case; it will provide a level playing field for a proper adjudication of this case.

It is, therefore, in the interest of justice that this Application be granted as prayed and it is so granted. The Applicant is granted leave to adduce additional evidence by tendering the following as Exhibits: (a) Certificate of Registration dated 14/1/1997, and numbered RTM 53395 for LEXUS & DEVICE in Class 12. (b) Certificate of Renewal dated 10/7/1997, and numbered RTM 53395 for LEXUS & Device in Class 12. (c) Certificate of Renewal dated 6/12/2010, and numbered RTM 53395 for LEXUS & Device in class 12.

The said Certificates of Registration/Renewal are hereby admitted as additional evidence for the determination of the substantive Appeal.

Application granted as prayed. There will be no Order as to costs.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead ruling of my learned brother Augie, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead ruling that the application has merit and should be granted. I will also grant the application Application granted.

JOHN INYANG OKORO, J.S.C.: I had a preview of the lead ruling just delivered by my learned brother, Amina Adamu Augie, JSC and I completely agree with the reasoning therein and the conclusion arrived thereat. ​ In the application before us, the Applicant/1st Respondent seeks the leave of this Court to adduce additional evidence by tendering a bundle of documents which it refers to as Exhibits TMC1 to TMC3 as fresh evidence and to allow the said fresh evidence to form part of the record for the determination of the substantive appeal.

The Appellant/Respondent vehemently opposed the application which led to the filing of several affidavits by parties for and against the motion. These affidavits are already reproduced by my learned brother in the lead ruling, it would therefore be unnecessary for me to recapitulate save to say that I am in sync with resolution of the issue as meticulously expounded by my learned brother.

The guiding principles which time-honoured practice has established for this Court when considering an application seeking for leave to adduce additional and/or fresh evidence are:- (i) That the evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial; (ii) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; (iii) That the evidence must be such as apparently credible in the sense that it is capable of being believed, though it need not necessarily be incontrovertible.

See Okpanum v. S.G.E (Nig) Ltd (1998) 7 NWLR (pt 559) 537 at 546; Obasi v. Onwuka (1987) 3 NWLR (pt 61) 364; Willaims v. Adold/Stamm Int’l (Nig) Ltd (2017) 6 NWLR (pt 1560) 1 at 35; Congress for Progressive Change v. Ombugadu (2013) 18 NWLR (pt 1385) 66.

After a careful perusal of the documents sought to be tendered as further or additional evidence, I hold the opinion that they seem credible and capable of being believed, notwithstanding that it may be controvertible. They seem to me as important evidence deserving of being looked at in the determination of the substantive appeal.

Furthermore, the law is trite that documents not tendered at the trial Court due to the inadvertence of counsel can be tendered on appeal as fresh evidence in the interest of justice particularly where such document had been referred to by the applicant in his pleadings or evidence. See the contribution of Karibi-Whyte, JSC in Adeleke v. Aserifa (1990) 3 NWLR (pt 136) 94 at 111 – 112. See also Jadesinmi v. Okotie-Oboh (1986) 1 NWLR (pt 16) 264. Here, the documents sought to be tendered were pleaded.

​Accordingly, I also grant this application as prayed. The Applicant/1st Respondent is hereby granted leave to adduce additional evidence in this Court which was not tendered at the lower Court, to wit: (a) Certificate of Registration dated 24th January, 1997 numbered RTM 53395 for LEXUS & Device in class 12; (b) Certificate of renewal dated 10th July, 1997 numbered RTM 53395 for LEXUS & Device in class 12; and (c) Certificate of renewal dated 6th December, 2010 numbered RTM 53395 for LEXUS & Device in class 12.

Application granted as prayed. I also make no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the ruling just delivered by my learned brother HON. JUSTICE AMINA ADAMU AUGIE JSC and I agree that the application has merit and should be granted.

No doubt by Order 2 Rule 12 (1) & (2) of the Supreme Court Rules, this Court has the power to receive fresh evidence on appeal before this Court. It is a discretion that can be exercised favourably in deserving cases to an Applicant in appropriate circumstances. In Obasi v.

Onwuka (1987) 3 NWLR (Pt. 61) pg. 364, this Court held as follows: (i) The fresh evidence sought to be adduced, must be such that could not have, with reasonable diligence been obtained for use at the trial. (ii) The fresh evidence is such that if admitted would have an important, although not necessarily a crucial effect on the case. (iii) The fresh evidence must be such as is apparently credible in the sense that it is capable of being believed.

It need not necessarily be incontrovertible. (iv) The additional evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court. (v) The fresh or additional evidence sought to be introduced must be material and weighty, although not conclusive.

In this application, the affidavit evidence of the applicant shows that it pleaded the documents it wants the appellate Court to admit but could not despite best efforts to get hold of them during the trial. Without a copy, it could not obtain a Certified True Copy nor compel the custodian of the original copies of the documents or the issuing authority to tender them. In Adeleke v. Aserifa (1990) 3 NWLR Pt. 136 Pg. 94, this Court held that in such circumstances, the appellate Court can admit such evidence.

I am convinced by the Applicant’s affidavit evidence that the documents were not available at trial inspite of all reasonable diligence employed by the Applicant to produce them. The Respondent did not come up with any credible evidence to rebut the averments of the Applicant in that regard. See also Owata v. Anyigor (1993) NWLR (Pt. 276) Pg.390. It is my view that it is in the interest of justice for this Court to grant this application.

Application granted. I abide by all orders contained in the lead ruling.

ABDU ABOKI, J.S.C.: I have read in draft, the Ruling just delivered by my learned brother, AMINA ADAMU AUGIE, JSC. I agree with His Lordship’s conclusion that it is in the interest of justice to grant the Application. In support of this stance, let me chip in a few words.

The Applicant herein is praying this Court for leave to adduce additional evidence on appeal, by tendering the following Exhibits: a. Certificate of Registration dated 14/1/1997 and numbered RTM 53395 for LEXUS & DEVICE in Class 12. b. Certificate of Renewal dated 10/7/1997 and numbered RTM 53395 for LEXUS & DEVICE in Class 12. C. Certificate of Renewal dated 6/12/2010 and numbered RTM 53395 for LEXUS & DEVICE in Class 12.

The pith of the arguments of Counsel is whether the circumstances of the instant case are such that this Court ought to exercise its discretion in favour of the Applicant. While the Applicant is urging this Court for a favourable exercise of its discretion, the Appellant/Respondent is of the view that the grant this application would overreach it, as the Applicant had the opportunity to tender the Exhibits at the trial, but it failed to do so.

The grounds upon which the application was brought, as well as the arguments of Counsel on both sides, have been extensively dealt with in the Ruling and I need not repeat them.

I however wish to reiterate the point made by my learned brother on whether this Court can entertain an application of this nature, without the filing of a cross appeal. ​Order 2 Rule 12(1) & (2) of the Rules of this Court provide that: (1) A party who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with any proceeding in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal. (2) The Application shall be supported by affidavit of the facts on which the Party relies for making it and the nature of the evidence or the document concerned. ​It goes without saying therefore, that this Court is vested with the power to entertain applications of this nature, with or without the filing of a cross appeal.

All that is required of an Applicant, in an application of this nature, is to satisfy the following conditions, that is: (a) The evidence sought to be adduced must be such or would have not been with reasonable diligence, obtained for use at the trial. (b) The evidence shall be such as if admitted, it would have an important not necessarily crucial effect on the whole case. (c) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. (d) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgrnent at the trial Court in favour of the Applicant had it been available at the trial Court, and (e) The evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.

The above conditions must co-exist before such leave can be granted. See: Obasi & Anor v. Onwuka & Ors (1987) LPELR-2152 (SC); Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847 (SC). ​The procedure for admitting further evidence on appeal is not at the disposal of an indolent or not diligent litigant. The procedure cannot be used for the repair of a case at the end of the trial. It is not designed to overreach the other party or spring surprise at the other party when the appeal is heard. The fresh evidence sought to be adduced has to be relevant to the suit otherwise it would be rejected.

In the instant appeal, I hold the view that receiving fresh evidence, in this case, the afore mentioned. Exhibits attached to the Appellant’s application would in no way undermine justice rather it would further the course of justice by assisting this Court to resolve the issues in the substantive appeal fairly, justly and equitably.

More importantly, the grounds on which the application is premised, which include a clear description of how the Applicant conducted a painstaking search in its office, and could not locate the Certificates and even attempted with all reasonable diligence, and yet did not succeed in obtaining certified copies of the said, are to my mind compelling enough that this Court cannot gloss over. To this end, I hold the view that the course of justice will better be served by the grant of this application.

I therefore endorse the reasons proffered by my learned brother AMINA ADAMU AUGIE, JSC, allowing the Exhibits, which have met the conditions for adducing fresh and further evidence since it will assist this Court to determine and resolve the issues in the substantive appeal fairly, justly and equitably. ​ Application granted as prayed. I abide by the consequential orders in the lead judgment.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Nimpar, Ogakwu and Obaseki-Adejumo JJCA delivered on the 13th April, 2018 in which the appellant’s conviction and sentence by the trial Court per Ofili-Ajumogobia J. was affirmed by the Court below.

BACKGROUND FACTS The appellant was charged on a one-count charge of dealing in 2.0 kilograms of Cannabis Sativa (otherwise know as marijuana). The appellant pleaded guilty to the charge. The prosecution tendered a confessional statement from Pidgin English language by one Oligbo Okey, an officer/agent of the NDLEA.

On this basis, the trial Court in its judgment delivered on 2nd March 2016 convicted the appellant of the Charge and sentenced him to 25 years imprisonment with hard labour.

​The prosecution called no witness but its Counsel tendered some documents from the Bar which were admitted in evidence as EXHIBITS PD1-PD9. The alleged confessional statement written in the Pidgin English was admitted as EXHIBIT PD3A while the English translation of same was admitted as EXHIBIT PD3B.

Prosecution’s counsel further urged the Court to convict the appellant ” …in accordance with Section 356 (2) of the Administration of Criminal Justice Act 2015″. The trial Court then adjourned to 2nd March, 2016 for judgment and same was delivered on that day.

​SUMMARY OF EVIDENCE The appellant was alleged to have dealt in 2.0 kilogrammes of Cannabis Sative (Marijuana) The evidence upon which other exhibits rested was the alleged confessional statement of the appellant. The story therein painted a graphic picture of how the appellant sold Cannabis Sativa at Tipper Garage Ojodu Berger.

The alleged confession which was transcribed from ‘Pidgin English’ to English language showed that the appellant is an illiterate. The confession was written by one Oligbo Okey who works for the NDLEA, in the absence of the appellant’s counsel. Exhibits PDI, PD2, PD4, PD5, PD6, PD7, PD8 and PD9 which emanated from NDLEA and tried to establish the Charge against the appellant are all evidentially premised on his alleged confession.

​The alleged confession further represented that he, appellant was taken to the NDLEA office where the substance allegedly recovered was found to be Cannabis Sativa. Armed with the purported confessional statement it obtained from the appellant coupled with the guilty plea of the appellant, the Prosecution urged the Court to convict him in line with Section 356 (2) of the Administration of Criminal Justice Act 2015.

In his judgment dated 2nd March 2016, the Learned Trial Judge convicted the appellant of dealing in Cannabis Sativa and sentenced him to 25 years imprisonment with hard labour- Aggrieved by the conviction and sentence, the appellant appealed to the Court below on five (5) grounds of appeal and on the 13th April, 2018, the Court below dismissed the appeal and affirmed the conviction and sentencing of the appellant to 25 years imprisonment.

Again, dissatisfied the appellant has come before the Apex Court on a five grounds of appeal.

On the 3/2/2022 date of hearing, respondent and counsel were absent though served on 31/1/2022 and the appeal was heard on appellant’s brief alone by order made on 14/1/2022.

​Learned Senior Advocate, C.O.P.

Emeka adopted the brief of argument of the appellant filed on 27/12/2018 in which he distilled three issues for determination, viz: (1) Whether the Court below was right to uphold the appellant’s conviction on the strength of Exhibits PD3A and PD3B having misconceived the issue of its legal validity under Section 17(2) of the Administration of Criminal Justice Act 2015 with the issue of admissibility under the Evidence (2) Whether the Court below was right to have affirmed the appellant’s conviction based on his plea of guilty when the mandatory provisions of the Administration of Criminal Justice Act, 2015 were not complied with? (3) Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt notwithstanding his purported plea of guilty?

​Learned counsel for the appellant submitted that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the alleged confessional statements. That those exhibits having been admitted much weight ought not to be laid on them in the light of Section 17 (1) (2) of the Administration of Criminal Justice Act (ACJA). He cited Madubigwe Awelle v The People of Lagos State (2016) LPELR-41395 CA; Mkpa v Mkpa (2010) 14 NWLR (pt.1214) 612 at 647 etc.

It was further contended for the appellant that the Court below wrongly affirmed the appellant’s conviction based on his purported plea of guilty when the learned trial Judge failed to comply with the mandatory provisions of the ACJA

Learned counsel for the appellant submitted that there was nothing on record to show that the charge was read and explained to the appellant in Pidgin English that he understood and so the conviction should fail. He cited State v Gwonto (1983) 1 SCNLR 142.

That the non-compliance with the statutory provisions on arraignment amounted to denying the appellant of his rights and that led to a miscarriage of justice. He cited Udofia v State (1988) 3 NWLR (pt.84) 533.

For the appellant, it was submitted that the prosecution failed to prove the essential elements of the charge beyond reasonable doubt. He cited Udosen v Sate (2007) 4 NWLR (pt.1023) 125 at 161 etc.

RESOLUTION The appellant was represented by counsel at the stage of arraignment and after the reading and explanation of the charge to the accused/appellant by the Court. The appellant pleaded guilty to the one count charge and the prosecution tendered the substance and other relevant materials as exhibits among which was the confessional statement made by the appellant.

The stance taken by the appellant is that Section 17 (2) of the Administration of Criminal Justice Act, 2015 was not complied with and so the conviction a nullity. To fully appreciate the statutory provision I shall quote the stipulation thus:-

Section 17(2) of the Administration of Criminal Justice Act 2015 states thus: “Such statement may be taken in the presence of a legal practitioner of his choice; or where he has no legal practitioner of his choice, in the presence of an officer of a Civil Society Organisation or justice of the peace or any other person of his choice.

Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.” ​The appellant contended that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the confessional statements. That Court had stated thus: “This furthermore makes the word ‘way’ a permissive word and not a mandatory word as used in the section.

Admissibility of a confessional statement is not dependent on the presence of counsel or relation at the time of making the confession, Section 29 (1) of the Evidence Act must be satisfied. The said Section 17 (2) of the ACJCA cannot override the clear provision of the Evidence Act”. In a statute, when ‘may’ is used it is generally accepted that it is permissive but exceptions exist when ‘may’ could be mandatory. I shall refer to the case of EDEWOR V UWEGBA & ORS (1987) LPELR-1009 (SC) where the apex Court gave this explanation, it said: “Generally the word ‘may’ always means ‘may’.

It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 22 S.R.N.S.W 494 per Cullen, CJ at pp 497, 498 it held that the use of the word ‘may’ prima facie conveys that the authority which has the power to do such an act has an option either to or not to do it. See also Cotton, L.I. in Re Daker, Michell v Baker ​(1800) 44 CH.D 282 But it has been conceded that the word may acquires mandatory meaning from the context in which it is used.

See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R, 8& The word may also acquires a mandatory meaning from the circumstances in which it is used, Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts.

In Baker (supra) Cotton L.I. said think great misconception is caused by saying that in some cases “may” means must, It can never mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by ‘may’, it becomes his duty to exercise it”.

In Over v Felton (1966) A.LR. 1088 Jenkyn J, said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation. ” Per NNAMANI, JSC. ​The Court below stated the several options in implementation of Section 17 (2) ACJA and stated that the word ‘may’ used therein cannot by any stretch of the imagination be interpreted to mean mandatoriness, ‘May’ can be interpreted as compulsory in penal provisions and not otherwise, particularly in criminal procedure legislations.

Indeed, the said Section 17(2) of the ACJA is not a penalty section and in any event the issue of evidence is under a substantive law of Evidence and the Evidence Act provides for how to test the voluntariness of a confessional statement. The question may now arise as to whether the Administration of Criminal Justice Act being a Procedural Law can take precedence over the Evidence Act. It is a procedural breach which in most cases would not vitiate the trial.

See Emedo v The State (2002) 15 NWLR (pt.789) 196 wherein the Supreme Court held that an irregularity is not a factor that would justify the setting aside of a verdict or decision unless a miscarriage of justice is established as propelling that decision of the Court. ​The question of whether an extra statement is confessional or not depends on the facts surrounding a given case since the test of voluntariness of a confession must be carried out before its admissibility.

That is what informs the necessity of a trial within trial once the voluntariness of the statement is challenged by the accused that makes the word ‘may’ in Section 17(2) of the ACJA permission and not a mandatory word.

​With respect to the posture of the learned counsel for the appellant that the appellant did not understand the language used in the Court. This point seems to be of no moment since in the realm of criminal justice, it is a cardinal principle of our criminal jurisprudence that the accused or his counsel is duty bound to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted, failure to do so will bring about the presumption that he has no cause for complaint.

To buttress the point, is that the fact that the accused does not understand the language in which the trial is being conducted is within the knowledge of the accused and it is for him or his counsel to take the initiative to cry out and bring to the notice of the Court at the earliest opportunity or so soon as the situation has arisen. If he lets go of that claim of his right to complain at the appropriate time, he loses the right to complain thereafter. See Francis Durwode v The State (2000) LPELR-972; Ibrahim v The State (2013) LPELR-21883 (SC); Madu v The State (1997) 1 NWLR (pt.482) 386.

The point has to be brought out that the appellant was represented by counsel who did not raise the issue of the appellant not understanding the English language which is the language of the Court. Again to be said is that appellant gave his answers on arraignment in English language and so the current grouse of the appellant’s counsel is strange in the conflicting instance of an accused/appellant answering questions in English language and now turning around to claim a lack of understanding of the Court proceedings.

Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.

The circumstances which prevailed at the trial Court belie the posture of the appellant as accused person pleaded guilty to the charge on arraignment, the burden on the prosecution to prove the offence beyond reasonable doubt is lifted. Therefore, the practice of tendering the items recovered during investigation upon that plea of guilt is in fulfilment of the abundance of caution to support the plea of guilty and adds nothing to the requirement upon arraignment and plea of guilty. When there was no objection on any part of the proceedings at that point it is too late to do so later.

See Adeleke v State (2013) LPELR-20971 SC. It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt.1029) 1; Nkie v FRN (2014) LPELR-22877. ​In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty.

Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is. See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt.144) 475; Adeyemi v The state (2013) 14 NWLR (pt.1373) 129. The difference in procedure comes in when capital offences are at play whereat an accused person shall not be convicted on a guilty plea. In such a case a “not guilty” plea is stipulated by law to be entered for the accused person.

In the instance, where the accused is not represented by counsel, the Court is expected to inquire more and be assured that the accused knows what he is doing. If he is represented by counsel, that indulgence is not granted. I rely on Omokuwajo v FRN (2013) LPELR-20184 (SC). In further clarification, I shall cite and quote some guidelines prescribed by the Appellate and Supreme Courts thus:- See Ibrahim v FRN (2016) LPELR-40059 (CA) as follows:- “The law therefore provides for conviction upon a guilty plea without any further formality.

A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR-8475 (CA) where the Court held: “The requirement of the law before there could be a conviction on a plea of guilty are that: i. The Court must be satisfied that the accused understands the charge against him; ii. The Court must be seized of the facts alleged by the prosecution as constituting the offence charged; iii. The Court must ask the accused if he admits all the facts alleged by the prosecution; iv.

The Court must be satisfied that the accused intends to admit the commission of the offence charged; v. The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.

The apex Court on the consequences of a guilty plea held thus: “It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law.” see DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (Pt.II) 43. See also NKIE V.

FRN (2014) LPELR-22877 (SC). ​Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more. Clearly, the Court of trial convicted the appellant properly upon the guilty plea and the other factors mentioned were surplusage and cannot be used as foundation to set aside the judgment. With the trial Judge being satisfied that the plea of guilty was done consciously, the Judge being satisfied, was right to proceed to conviction.

The matter of his satisfaction, not being so recorded would not detract from the fact of the appropriateness of the procedure and that is not open to challenge the issue of satisfaction. Therefore, the burden of proof having been obviated by the plea of guilty as the Court below found and stated, there was no burden on the prosecution to prove the allegation. The case of Ochiba v State (2011) 17 NWLR (pta1277) 663 at 694 does not apply to the case in hand, the scenario existing thereby distinct from the one currently under discourse.

​In conclusion and the foregoing, this appeal definitely lacks merit and I do not hesitate in dismissing it. I affirm the decision of the Court of Appeal which in turn affirmed the judgment, conviction and sentence of the trial Court.

Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered. I am at one with His Lordship that the appeal is devoid of merit and should be dismissed.

This is a case in which the appellant was represented by counsel at his arraignment where he pleaded guilty to the one count charge of dealing in cannabis sativa (otherwise known as marijuana) contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency (NDLEA) Act cap. N30 LFN 2004.

At the trial of the case, the prosecution tendered various exhibits, including the appellant’s confessional statement. His statement made in Pidgin English was admitted and marked Exhibit PD3A, while the English translation was admitted and marked Exhibit PD3B. There was no objection to the tendering of any of the exhibits including Exhibits PD3A and PD3B.

​In the appeal before us, it is the appellant’s contention that his arraignment was invalid because the record does not show that the charge was read and explained to him in Pidgin English, which is the language he understands and also that the statement Exhibit PD3A and its translation, Exhibit PD3B were not recorded in compliance with the provisions of Section 17(2) of the Administration of Criminal Justice Act (ACJA), 2015.

My learned brother has dealt extensively with these issues in the lead judgment. I shall add just a few comments by way of emphasis.

The record of the trial Court on the date of arraignment reads thus: “KALU: One count charge dated 28/11/14. I apply that the charge be read. COURT: Charge read and explained to the accused person. ACCUSED PERSON: I understand (the) charge, I plead guilty.”

As observed earlier, the appellant was represented by counsel. There is nothing on the record to show that he did not understand the charge read to him, Indeed, he stated clearly, “I understand the charge.” As rightly observed by the Court below, if the appellant did not understand the charge, it was his duty or the duty of his counsel to so inform the Court. See: Akeem Vs The State (2017) LPELR-42465(SC) @ 27-30 D-A; 33 C- F; Dibie vs The State ​(2007) LPELR-941 (SC) @ 7-8 C-A.

In any event, the Court is entitled to take judicial notice of the fact that Pidgin English is a specie of “proper” English freely and commonly used in Nigeria. A person who speaks Pidgin English usually understands “proper” English although he may not be able to communicate effectively in “proper” English, In a recent decision of this Court in Olanipekun vs The State (2016) LPELR-40440 (SC), the statement of the appellant was challenged on the ground that it was recorded in Pidgin English and the prosecution failed to tender the English translation.

His Lordship Akaahs, JSC at pages 8-9 D-A (Supra) stated thus: “It is erroneous for anyone to assume that people who communicate in Pidgin English do not understand proper or Queen’s English, especially in Nigeria. The use of Pidgin English allows for free expression without minding the grammar which is usually employed in the proper English. Consequently, a statement that was said to have been recorded in Pidgin does not require translation into proper English and any statement made in Pidgin English can be recorded in proper English.

I therefore agree with my learned brother, Peter-Odili, JSC, that the arraignment of the appellant in the circumstances of this case, was proper and in accordance with the law.

The challenge as to the admissibility of Exhibit PD3A and its translation, Exhibit PD3B, is a non-starter in my respectful view. It is very well settled that the appropriate time to raise an objection to the admissibility of a confessional statement on whatever ground, is during the trial at the stage when the prosecution seeks to tender it in evidence. See:Isong vs The State (2016) LPELR-40609 (SC) @ 28 D-F; Oseni vs The State (2012) LPELR-7833 (SC) @ 37-38 B-E; State vs Ibrahim (2019) LPELR-47548 (SC) @ 19 B–F.

The compliance or otherwise with Section 17(2) of the ACJA ought to have been raised at the time the statement was tendered in evidence. It is too late to raise the issue on appeal either before the lower Court or before this Court.

​Finally, the appellant, duly represented by counsel, having understood the charge read to him and pleaded guilty thereto, the only duty upon the Court was to proceed to conviction.

The procedure to be followed where an accused pleads guilty to a non-capital offence is set out in Section 356(2) of the ACJA as follows: “1356(2) Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or sufficient cause why sentence should not be passed, the Court shall proceed to sentence.” The issue of proof of the charge beyond reasonable doubt no longer arises. See: Sunday Vs FRN (2018) LPELR-46357 (SC) @ 24 C-F; Omoju vs FRN (2008) 7 NWLR (Pt. 1085) 38; (2008) LPELR-2647 (SC) @ 18 E-F.

In Orji vs FRN (2019) LPELR-46534(SC) @ 6-8 F-A, His Lordship, Rhodes-Vivour, JSC held thus: “A plea of guilty in a criminal charge is made by an accused person who does not contest the charge. This arises where an accused person having committed a crime is simply saying by pleading guilty that he is responsible for the crime. A plea of guilty to a charge is conclusive evidence that the accused committed the offence. When an accused person is represented by counsel and the charge is read and explained to him to the satisfaction of the Court, the Court can proceed to convict forthwith.

There is no better evidence than a plea of guilty, It is even better than eyewitness… The appellant was convicted on his plea of guilty. Thereafter, any exhibits tendered are surplusage as the plea of guilty is conclusive proof that the accused person (the appellant) committed the offence.”

In light of my findings above and for the more detailed reasoning in the lead judgment, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court affirming the appellant’s conviction and sentence by the trial Court is hereby affirmed.

Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Mary Ukaego Peter-Odili, JSC obliged me a draft of the lead judgment just delivered and I am in complete agreement with the reasons and conclusion reached therein. The facts giving birth to the appeal has already been summarized in the lead judgment and I shall therefore avoid a repeat of exercise except to recapitulate a point therein as occasion may require in this judgment.

​The main issue in this appeal is whether in view of the Appellant’s confessional statement in exhibit PD3A translated in exhibit PD3B and his plea of guilt, the Court was right to convict him summarily.

Section 274(1) and (2) of the Administration of Criminal Justice Act, 2015 provides that:- “(1) Where a defendant pleads guilty to an offence with which he is charged, the Court shall:- (a) record his plea as nearly as possible; (b) invite the prosecution to state the fact of the case; and (c) enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution; or (2) Where the Court is satisfied that the defendant intended to admit the truth of all the essential elements of the offence for which he has pleaded guilty, the Court shall convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary. (3) …” ​From the above provision, it is clear that where an accused person pleads guilty to a charge and the Court is satisfied that he indeed intended to admit all the essentials of the offence, the only option open to the Court is to convict him summarily, except where the offence is a capital offence where death is the penalty prescribed by law, then a plea of guilt would not be recorded.

See Olabode v State (2009) 11 NWLR (pt,1152) 254; Paulinus Tobi (Udo Abby) v The State (2001) 4 SC (pt. 11) 160. In the words of that provision, admitting the truth of all the essential elements of the offence, presupposes to me, that the accused understood the charge read to him and he intended to plead guilty.

Construing that language of the statute in Section 218 of the Criminal Procedure Act, which is in pari materia with the above provision, Niki Tobi, JSC (of blessed memory) in the case of Omoju v Federal Republic of Nigeria (2008) 7 NWLR (pt.1085) 38 (2008) All FWLR (pt,415) 1656 at page 1675-1676 stated as follows:- “I do not see any language in Section 218 suggesting that the Court must ask the Appellant if he admits all the essentials of the offence of which he pleads guilty.

All that the Section requires is that the Court must be satisfied that the accused person intended to admit the truth of all the essentials of the offence. In the language of the section, the exercise is within the mind of the Judge and does not go out to meet the accused, Whether the Judge is satisfied or not remains his subjective judgment. The moment the Judge is so satisfied he can convict and pass the appropriate sentence.”

In the instant case, in view of the Appellant’s confessional statement in exhibits PD3A and PD3B, the learned trial Judge must have been satisfied that the Appellant intended to admit the truth of all the essential elements of the offence.

Talking about confessional statement which has generally been referenced as the strongest evidence against an accused person, I have stated before in the case of Nkie v Federal Republic of Nigeria (2014) 13 NWLR (pt1424) 305 and I shall reiterate here that a confessional statement is so considered as the best evidence against an accused person because no man in his right senses will make admissions prejudicial to his interest and safety if the facts are not true and correct.

See also Section 28 of the Evidence Act, 2011, Oseni v State (2012) 5 NWLR (pt.1293) 351; Dibie v State (2007) 9 NWLR (pt.1038) page 30.

​The appellant’s contention in this appeal is that there were procedural irregularities before the conviction and sentencing in the sense that his lawyer was not present when he made exhibits PD3A and PD3B as prescribed by Section 17 of the Administration of Criminal Justice Act and also that he was not provided with an interpreter during his arraignment for which reasons the conviction should be upturned. The question then is did he object to the charge being read to him at the earliest opportunity?

The law is trite that once an accused person pleads to a charge before the Court without raising any objection, it presupposes that he understands the charge read to him and the plea is valid. Otherwise, he would have objected to the charge or at least indicated to the Court that he does not understand the charge, especially where he is not represented by counsel. See Okewu v Federal Republic of Nigeria (2012) 9 NWLR (pt,1305) page 327. ​In this case, the record of appeal shows that the Appellant was represented by counsel and he spoke English language during his arraignment.

Having failed to object before his plea, he cannot thereafter complain of any perceived irregularity which occurred before his plea. Again, his plea of guilt foreclosed the procedural step of going into trial. The only thing the Court had to do which it did was to convict and sentence him accordingly. The act of tendering exhibits by the respondent after the plea, was, in my opinion, an exercise in surplusage, to remove any doubt whatsoever in the mind of the trial Court to convict the Appellant.

In the final analysis, I hold that both the appellant’s confessional statement and his plea of guilt obliterates any form of procedural irregularity perceived to have occurred before his arraignment. The Court rightly convicted and sentenced him summarily upon his plea of guilt. This appeal is without merit and is hereby dismissed. The judgment of the Court below which upheld the conviction and sentence of the appellant is hereby affirmed.

Appeal dismissed.

​ABDU ABOKI, J.S.C.: I have had the opportunity of reading in draft, the lead judgment of my Learned Brother, MARY UKAEGO PETER-ODILI, JSC I am in complete agreement with his Lordship’s reasoning and conclusion, and do not wish to add anything more.

Accordingly, the appeal fails and it is hereby dismissed.

The conviction and sentence passed on the appellant is affirmed.

MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning aptly expressed in the judgment just delivered by my learned brother, the Hon. Justice M. U. Petey Odili, JSC, that the instant appeal is lacking in merits. Unhesitatingly, I too hereby dismiss the appeal and affirm the decision of the Court of Appeal, coram Nimpar, Ogakwil and Obaseki-Adejumo, JJCA, delivered on 13/4/2018 in appeal No. CA/L/734c/2016. ​Appeal dismissed

Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgement): The Applicant as Claimant, filed a suit against the Respondent at the Edo State High Court, involving “a piece or parcel of land situate and known as Ward 40/B Aduwawa Area, Benin City”. At the trial Court, the Parties pleaded and tendered separate Certificates of Occupancy issued by the Edo State Government, and the Issue boiled down to whether the Claimant established the identity of the land in dispute.

In its judgment delivered on 31/1/2017, the trial Court held that - A Claimant who fails to prove the exact location or identity of the land it claims, cannot be said to have proved his title to land. After due consideration of the entire evidence adduced, I hold that Claimants have failed woefully to prove their case on the balance of probability as required by law. Accordingly, I hereby dismiss the Claimants’ Suit in its entirety as lacking in merit.

The Applicant appealed and, in its judgment delivered on 4/12/2019 the Court of Appeal compressed the Issues presented by both Parties as well as their arguments into one Issue for Determination; that is: Whether the Appellant had by preponderance of evidence established the identity of the land, subject matter of the suit, and if not, whether the lower Court was right to dismiss the suit.

It resolved the Issue against the Applicant, and concluded as follows: It is not necessary to call the Surveyor, who made the survey plan. In any case, the Claimant instead of pointing fingers at the speck of wood in the Defendant’s eyes, should have taken care of the log of wood in its own eyes by filing a composite plan to prove the identity of the land. The strong contention of the Defendant that there was a previous litigation on the said land further complicated issues for the Claimant.

The Defendant also tendered litigation survey plan with No. 150/ED/151/2013 in respect of the earlier Suit No. B/6/07. The Defendant in his Statement on Oath deposed thus … In the face of all the above, the need to file a Composite Plan by the Appellant should have stared it in the face. It was a glaring need. Yet, it was not filed. I have no hesitation in resolving the sole issue in favour of the Respondent. This Appeal lacks merit. It is hereby dismissed. The judgment of Edo State High Court in Suit No. B/486/2012 delivered on 31/1/2017 is accordingly affirmed.

The Applicant failed to appeal against the said judgment within time, and it has now filed this Application on 6/5/2020, praying this Court for an extension of time to seek leave to appeal; leave to appeal; and an extension of time to file the Notice of Appeal against the judgment of the Court of Appeal. The Grounds for this Application are that – i. The Grounds in the proposed Notice of Appeal contain substantial issues of fact and law that require the consideration of this Honourable Court. ii.

The Grounds in the proposed Notice of Appeal evoke serious issues as to the correctness of the judgment of the Court of Appeal. iii. The failure of the Applicant to seek leave to appeal against the judgment of the Court of Appeal within the time stipulated in the Supreme Court Act Cap S. 15, LFN 2004 was due to inadvertence of Applicant’s Counsel; and that – iv. The inadvertence of Counsel cannot be visited against the Applicant that is seeking to exercise its constitutional right to appeal against the judgment of the Court of Appeal.

The Application is supported by a 20-paragraph Affidavit with three annexures, and it also filed a Brief in Support of Motion on Notice For Leave to Appeal. The Respondent filed a 15-paragraph Counter-Affidavit to which he attached a judgment in another Suit No. B/6/2007 as Exhibit EK, and he also filed a Written Address in Support of Counter-Affidavit. In response, the Applicant filed a Reply Affidavit to the Respondent’s Counter-Affidavit and a Reply Brief.

In its Brief, the Applicant submitted that the sole issue, which arises for determination of this Application is, “whether the Applicant has satisfied the legal requirements to sustain the reliefs sought before this Honourable Court”.

The Respondent, however, submitted that the sole Issue for Determination is: Whether the Applicant has shown good and substantial reason for failure to appeal within the prescribed period, and whether the proposed Grounds of Appeal show good cause while (sic) the appeal should be heard to enable this apex Court exercise its discretion in favour of granting the Application.

​The Issue formulated by the Respondent is a bit of a mouthful and I will adopt the Issue formulated by the Applicant, which is concise and straight to the point. Besides, the Applicant is mindful of its circumstances because it cited the case of Malari & Ors v.

Leigh (2018) LPELR-43823 (SC), wherein this Court held: For the grant of an application for enlargement/extension of time within which to appeal or within which (where necessary) to seek leave to appeal and its (the latter’s) other concomitant/complimentary reliefs i.e., for leave to appeal and for extension of time within which to appeal, the Courts especially this Court, have/has made it abundantly clear that the Applicant must comply with the requirements of the law, Rules of Court and practice – – a) Where a person who intends to appeal has not, for some reasons, filed his appeal within the time prescribed by law/Rules of Court then he has to seek for extension of time to comply with stipulations of those Laws/Rules b) Where an appeal is by the constitutional provision, to be initiated by leave of Court and the time within which to seek for that leave has lapsed, then a person has to apply for: i.

Extension of time within which to seek leave to appeal; ii. leave to appeal and; iii. extension of time within which to appeal/file a Notice of appeal. Reliefs (i) – (iii) are what are generally referred to as “the three-legged prayers”, “or” “trinity prayers”.

The Applicant submitted that it satisfied these principles, and apart from the Trinity Prayers outlined, an Applicant must also satisfy two conditions, namely: i. Good and substantial reasons for failure to appeal within the prescribed period; and ii. Grounds of appeal which prima facie show good cause why the appeal should be heard -FHA V. Kalejaiye (Nig) Ltd (2010) 19 NWLR (R. 1226) 147 and Malari & Ors V. Leigh (supra) cited.

Furthermore; that these conditions must co-exist for an application to succeed, citing FHA V. Kalejaiye (Nig) Ltd (supra), therefore the questions now are – (a) Has the Applicant satisfied the requirements of good and substantial reason for failure to appeal or seek leave to appeal within the time prescribed by law; and (b) Whether the Applicant’s proposed Notice of Appeal discloses Grounds of Appeal, which prima facie show good cause why the appeal should be heard.

It further submitted that mistake or inadvertence of Counsel that necessitates a delay in appealing within time is a special circumstance to warrant an order for extension of time to appeal, citing Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531, and then it referred to the following paragraphs of its Affidavit: 7. The Applicant was dissatisfied with the judgment of the Court below and thereby instructed its Lead Counsel, Dr. T. C. Osanakpo, SAN to appeal against it to this Court. 8.

The Lead Counsel promptly prepared the Notice of Appeal and directed me to prepare a Motion on Notice to seek leave to appeal against the judgment of the Court of Appeal dated 4/12/2019 which is deposed to in paragraph 6 of this Affidavit. 9. I inadvertently failed to comply with the instructions of my Learned Senior in Chambers – Dr. T. C. Osanakpo, SAN, the Lead Counsel of the Applicant. 10. It was on 9/3/2020 when Dr. T. C.

Osanakpo, SAN was reviewing the matters assigned to me to work on that I became seized of the fact that the time to seek leave to appeal against the judgment of the Court of Appeal expired on 3/3/2020.

11. The failure to take appropriate steps to seek leave to appeal within time against the judgment of the Court of Appeal dated 4/12/2019 was entirely due to my inadvertence. 12. It was also on 9/3/2020 in the course of review of the Applicant’s matter with Dr. T. C. Osanakpo, SAN, I realized that the proposed Notice of Appeal of the Applicant contains grounds of mixed law and fact. (Proposed Notice of Appeal attached as Exhibit Cl. 13.

On 9/3/2020 when I was involved in the review of the facts, I realized that the time to seek leave to appeal against the judgment of the Court below expired on 3/3/2020. 14. On 9/3/2020 during the review of the case of the Applicant – Dr. T. C. Osanakpo, SAN, informed me in the conference room of our office at Louis Chambers, 350 Aba Road, Port Harcourt at about 4pm and I verily believed him that the extant Application of the Applicant needs to contain the following reliefs (Trinity Prayers listed).

​It also submitted that the proposed Notice of Appeal (Exhibit C) shows good grounds why the appeal should be heard as discernible in paragraphs 12 and 18 of the Affidavit in support of this Application, wherein it was averred that – I was informed by Dr. T. C.

Osanakpo, SAN also on 9/3/2020 in our conference room and I verily believed him in respect of the following facts namely – (i) That the grounds in the Notice of Appeal exhibited herein as Exhibit C raise substantial issues of fact and law that require the consideration of this Court. (ii) The Grounds in Exhibit C are substantial and cannot be dismissed with a wave of the hand or ascribed to be totally lacking substance. (iii) The Grounds in Exhibit C evoke serious debate as to the correctness of the decision or judgment of the Court below (iv) The Applicant’s Grounds of Appeal are to evoke the intellect and reasoning faculties of the Honourable Justices of the Supreme Court. (v) The Applicant’s Grounds of Appeal are not frivolous.

Respondent cited Elias V. Ecobank (2019) 4 NWLR (Pt. 1663) 381, on discretionary power of this Court, which must be exercised judicially and judiciously, and cited the following cases on the legal requirements: – NNPC V. Samfadek & Son Ltd. (2018) 7 NWLR (Pt. 1617) 1 at 8 – Ikenta Best (Nig.) Ltd. A.G Rivers State ​

– (2008) 6 NWLR (Pt. 1084) 612 – FHA V. Kalejaiye (supra) – Chime V. Onwuegbu (2010) 14 NWLR (Pt. 1373) 58 – Imegwu V. Okolocha (2013) 9 NWLR (Pt. 1359) 347 – Itsueli V. SEC (2016) 6 NWLR (Pt. 1507) 160 – Oloko V. Ube (2001) 13 NWLR (Pt. 729) 161 – In Re: Alase (2002) 10 NWLR (Pt. 776) 563 – Bank of Baroda v Mercantile Bank (1987) 3 NWLR (Pt. 60) 23

He argued that facts deposed to by the Applicant do not disclose any good and substantial reason for its failure to appeal within time, and are only “a disclosure of counsel’s ineptitude, tardiness and ignorance of law erroneously or inadvertently labeled as “Inadvertence of Counsel”; and that when this Court was not bogged down by excessive workload, this could be granted if predicated on counsel’s inadvertence as the cause of the delay or failure to appeal within time, but that those liberal days appear to have gone by and may never return to this Court again.

​Furthermore, that the Court is no longer ready to accept that reason hook, line and sinker, as it has developed a fine tooth-comb to scrutinize any alleged inadvertence to discover whether it actually qualifies as such or it is being used as smokescreen to hide counsel’s ineptitude, tardiness, malfeasance or ignorance of the law, and he quoted what I said in GTB V. Est Master Constr. Ltd. (2018) 8 NWLR (Pt. 1622) 483, as follows – “Inadvertence of counsel is a familiar refrain heard by this Court in Applications of this nature.

It is true that inadvertence of counsel or counsel’s error in judgment, if reasonable, is an acceptable explanation for delay in applying for leave to appeal. As this Court pointed out in Shanu V. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392/403 – “In Akinyede V. The Appraiser (1971) A All NLR 162 counsel’s carelessness was held by this Court to be good reason for failure to appeal within time, provided such carelessness is pardonable. In Doherty v. Doherty (1964) 1 AII NLR 299 and Bowaje V.

Adediwura (1976) 6 SC 143 pardonable inadvertence of counsel was accepted as good and substantial reason for the delay. In Alagbe V. His Highness, S. Abimbola & Ors (1978) NSCC 84; (1978) 2 SC 39 where delay was partly due to counsel and his clerk, the delay was held to be satisfactorily explained”. However, it is not yet uhuru, so to speak, because Nnaemeka-Agu, JSC, warned counsel in Iroegbu V. Okwordu (1990) 6 NWLR (Pt. 159) 643 that notwithstanding the decisions of this Court on the said subject in Akinyede V. The Appraiser (supra), Doherty V. Doherty (supra), and the case of Ahmadu V.

Salawu (1971) 1 All NLR (Pt. 2) 318 – “The Courts will not regard this as universal talisman, the waiver of which will act as panacea in all cases. Courts must be satisfied that the allegation of the fault of counsel is true and genuine, but also that it is availing having regard to circumstances of the particular case”. The 1990 warning of Nnaemeka, JSC, in Iroegbu V.

Okwordu (supra) remained unheeded and because of the frequency of attributing almost all non-compliance with the Law and Rules of Court on the “mistake” or “inadvertence” of counsel, the current trend in judicial practice is to distinguish inadvertence of counsel from the ineptitude of counsel - see a recent judgment of this Court in Appeal No. SC. 113/2013 – Malari & Ors V. Leigh (unreported) (Malari & Ors V. Leigh (2019) NWLR (Pt. 1659) 341 delivered on 12/1/2018 where a similar Application was refused; l. T.

Muhammad, JSC, stated as follows – “This, I believe is one of the few instances where a Party must take a quick, effective and spontaneous decision in relation to the way and manner counsel handles his case. Otherwise, he must bear the consequence of the ineptitude, negligence or any act of God befalling his chosen counsel, mistake, inadvertence and sickness of counsel can always be distinguished from ineptitude, complete ignorance or malfeasance exhibited by counsel”.

Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. The question in this case is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of the Applicant’s counsel in this matter.”

He contends that Applicant’s Affidavit reveals a trinity of ineptitude, tardiness, and ignorance of the law advanced for its failure to appeal within the prescribed period of appeal (three months), and further argued. (i) Paragraphs 7-9: Neither the Applicant nor the learned senior or lead counsel followed up on the alleged instruction to appeal or seek leave to appeal within the time prescribed. In Agbabiaka V.

FBN (2020) 6 NWLR (Pt. 1719) 77, Eko, JSC, cautioned that Rule 16 of the Rules of Professional Conduct for Legal Practitioners 2007, enjoins a lawyer to competently represent his client and not neglect a legal matter entrusted to him. NNPC V.

Samfadek & Sons Ltd (supra) and Adigwe V FRN (2015 18 NWLR (Pt 1490) 105, also cited. (ii) Paragraphs 10 & 11: A demonstration of recklessness and ignorance of the law requiring that leave to appeal must be sought and obtained and the appeal itself must be filed within the statutory three months period as provided in Section 27(1) and (2) (a) of the Supreme Court Act. (iii) Paragraphs 12-15: These depositions contradict the earlier deposition in paragraph 8 that he was given the file and directed to prepare a Motion on Notice for leave to appeal before time to appeal expired on 3/3/2020 and they also evince inexcusable ignorance of the law.

This is doublespeak because from the averment in paragraph 8, it could not be true that it was upon the review of the file on 9/3/2020 that he discovered that leave is needed to appeal on grounds of mixed law and fact. Stanbic IBTC Bank V L.G.C. Ltd (2018) 10 NWLR (Pt. 1626) 96 cited. The Applicant’s inconsistency confirms the deposition in paragraphs 4, 5 and 7 of its Counter-Affidavit that the Applicant never intended to appeal against the said decision until this motion was filed alter the statutory time to appeal has lapsed.

The trinity of ineptitude, tardiness and ignorance of the law is inexcusable.

He referred to Order 2 Rule 32 of the Supreme Court Rules, which says: Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 233 (3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

He also cited Calabar Central Co-op. Thrift & Credit Society Ltd. V. Ekpo (2008) 6 NWLR (Pt. 1083) 362, GTB V. Est Master Constr. Ltd. (supra), Ani V.

Otu (2017) 12 NWLR (Pt. 1578) 30, and referring to the trial Court’s Judgment, Court of Appeal’s judgment and proposed Grounds of Appeal, attached to the Applicant’s Affidavit as Exhibits A, B and C respectively, he submitted that the proposed appeal is one against concurrent findings of fact by the two lower Courts, and the Applicant will only be entitled to leave to appeal by demonstrating exceptional circumstances warranting the appeal but that there is nothing “unusual’ or “much greater than usual”, in this Application, and the supporting Affidavit to warrant granting same.

He cited Obikoya V. Wema Bank (1989) 1 NWLR (Pt. 96) 157, Malari V. Leigh (supra), and Imegwu V. Okolocha (2013) 9 NWLR (Pt. 1359) 347, and after analyzing the proposed Grounds of Appeal vis-a-vis the decision appealed against, he argued that the Applicant has not shown any good and exceptional circumstances and Grounds of Appeal that prima facie show good cause why the appeal should be heard. He cited Ziregbe V. Eyikpimi (2020) 9 NWLR (Pt. 1279) 327, Alex V. FRN (2018) 17 NWLR (Pt. 1618) 228, Tsokwa V. Ibi (2007) 10 NWLR (Pt. 1574) 343, Elias V. Ecobank (supra), Midland Galvanising Ltd. V.

O.S.I.R (2015) 8 NWLR (Pt. 1460) 26, ANPP V. Albishir (2010) 8 NWLR (Pt. 1198) 118, Akinpelu V. Adegbore (supra), and urged this Court to dismiss the said Application.

In the Applicant’s Reply to the Respondent’s Written Address, it pointed out that the three planks of the Respondent’s opposition are essentially that – i. Inadvertence of counsel does not avail the Applicant; ii. The Application does not disclose exceptional circumstances; and iii. That the proposed Grounds of Appeal are not substantial.

On the first plank, it countered that it is inferable from his argument that the Respondent does not dispute that inadvertence of counsel is a good ground to premise an application for extension of time, which is not surprising, as the law has not changed that inadvertence of counsel can sustain an application for extension of time, citing Iyalabani Co. Ltd v. Bank of Baroda (1995) LPELR-1572(SC); that GTB V. Est Master Constr.

Ltd. (supra), which he had cited, does not say that inadvertence of counsel would not avail such an Applicant; that although the Respondent had filed a Counter Affidavit, he does not directly contradict facts in its supporting Affidavit constituting the reason for the delay; and that there is no material inconsistency of any kind in its supporting Affidavit.

On the contention that the decision in Akinpelu V. Adegbore (supra) that it cited no longer represents the law on the inadvertence of counsel, it argued that the said decision has not been overturned, and none of the cases cited by the Respondent decided that inadvertence of counsel is no longer a ground to grant extension of time; that the decisions cited by the Respondent only sought to separate conducts of counsel, which are inadvertence, from conducts that do not qualify as inadvertence; and that as recent as June last year this Court, in Ogunpehin v.

Nucleus Venture (2019) LPELR-48772(SC), held as follows: “It is correct and indeed trite in law that Parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case, the Court would interest and lean towards accommodating the Parties’ determination of the case on the merits.” ​ As to the second plank, the Applicant conceded that the Respondent correctly stated the law that leave to appeal against concurrent findings of the two lower Courts will only be granted in exceptional circumstances but argued that he wrongly applied the law to this Application; that the reproduced portion of the judgment in Obikoya v Wema Bank (supra), cited by the Respondent, omits an important consideration in determining whether a ground of appeal is substantial, which is that the Court will not in the process determine the appeal, citing E.F.P.

Ltd V. NDIC (2007) 9 NWLR (Pt. 1039) 239, wherein it was held. “The duty of an appellate Court in the consideration of grounds of appeal proposed by an Appellant and filed in support of an application for leave to appeal is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. It is not the duty of the Court at that stage to decide the merits of such grounds in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application.

It said it will not fall into the error committed by the Respondent in arguing the proposed grounds of appeal, but it submitted that the grounds raise substantial issues of both law and facts, which cannot be dismissed with a wave of hand.

Now, as the Parties rightly submitted, there are two conditions spelt out by the law that must be satisfied before an Application of this nature is granted - see Order 2 Rule 31 of the Rules of this Court, which provides as follows – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure – – in any other way when this is required in the interest of justice. (2) Every application for an enlargement of time in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal and to apply for leave to appeal within the prescribed period.

There shall be exhibited or annexed to such affidavit – (a) A copy of the judgment from which it is intended to appeal; (b) A copy of other proceedings necessary to support the complaints against the judgment; and (c) Grounds of Appeal which prima facie show good cause why the appeal should be heard. ​Thus, where the time within which to appeal has expired, it is crucial that the Applicant files what this Court referred to in Malari V. & Ors V.

Leigh (supra), as “the Three-Legged Prayers”, “Tripod Prayers” or “the Trinity Prayers” for: (a) Extension of time to seek leave to appeal; (b) Leave to appeal; and (c) Extension of time to appeal. For there to be a valid appeal, the three reliefs must be granted by the Court – Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350.

The Applicant must convince this Court that the delay is neither wilful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and the grounds of appeal must prima facie show good cause why the appeal should be heard at all. The two conditions are conjunctive and not disjunctive, so they must co-exist – Nwora V. Nwabueze (2011) 15 NWLR (Pt. 1271) 467.

​In this case, the essence of the Applicant’s Application is that the delay in filing the said Application was due to inadvertence of counsel because after the lead counsel instructed the deponent, a Legal Practitioner in his Chambers, to prepare a Motion on Notice to seek leave to appeal, the Legal Practitioner did not comply with the instruction, and this oversight was not discovered until 9/3/2020, by which date, time to file the Application had expired on 3/3/2020.

The Respondent made an issue of this reason, inadvertence of counsel, given by the Applicant, and he even argued as follows in his Written Address: “What is even more worrisome about the Application is the attempt by the Applicant and its Counsel to artificially bifurcate responsibility for the delay as the act of the Deponent of the Affidavit in support of the Application, and absolve the Principal in the Chambers. It is one law firm… and the default by any one counsel in the Chambers is the default of all the counsel for which the head must take responsibility as his own act.

We (therefore) urge (this Court) to find that the apparent ineptitude of counsel that seemly resulted in the default to file the appeal within the prescribed time, by their own showing, is not the exclusive act of the Deponent but the default of all the counsel in Chambers and that of the Applicant.” ​ The Applicant countered that this submission does not advance the argument of the Respondent and is made solely to disrespect the Applicant’s counsel; that the law does not make a distinction between inadvertence of a junior and senior counsel; that all counsel in Chambers were inadvertent, as he argued, “is a more cogent reason than if only the junior counsel was inadvertent, not to visit the inadvertence on the litigant, but to grant the Application instead”.

As it is, the hue and cry over this issue is nothing but a storm in a teacup because, as far as this issue is concerned, the Applicant is right on all counts. First off, it is true that the position of the law that inadvertence of counsel can sustain an application for extension of time has not changed. The Respondent quoted what I said in GTB V. Est Master Constr.

Ltd. (supra), but did not add that in that case, I concluded as follows on the issue of inadvertence of counsel: “The question is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of Applicant’s counsel in this matter. In paragraphs 18 & 19 of its supporting Affidavit, it was averred that… The way I see it, this first condition is not a drawback to the Application as the Applicant had filed an initial Application within time before the error in not including the first prayer to extend the time was discovered.

Its counsel ought to have been more diligent, but in such circumstances, I do not think that the said error suggests ineptitude on counsel’s part.”

In this case, Respondent argued that Applicant’s Affidavit “reveals a trinity of ineptitude, tardiness and ignorance of the law”, but as the Applicant submitted, he filed a Counter-Affidavit but did not contradict the facts in its Affidavit. It is an elementary principle that affidavit evidence constitutes evidence, therefore, any deposition that is not challenged is deemed admitted – Owuru V. Adigwu (2018) 1 NWLR (Pt. 1599) 1.

Apart from casting aspersions on the Applicant and its counsel, which is totally uncalled for, the Respondent did not challenge the facts in the Applicant’s Affidavit, and he is deemed to have admitted them. So, the reason for the delay in filing the Application is undisputed and accepted.

​Then again, the second condition, which goes hand in hand with the first, is that the Applicant must also show that there are grounds which prima facie show good cause why the appeal should be heard. But, as this Court said in Nwora V. Nwabueze (supra), this is not the time to enquire into the merit or otherwise of the case because that would certainly amount to deciding the substantive matter in an interlocutory application, which the law frowns upon. See also Obikoya V.

Wema Bank (supra), wherein Obaseki, JSC, explained: “The grounds of appeal required to be exhibited are only to show why the appeal should be heard. The Rule does not require the grounds to show why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground, which raises substantial issues of fact or law for the consideration of the Court.

It is a ground, which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground, which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground, which taxes the intellect and reasoning faculties of appeal Judges. It is a ground, which is not frivolous.” ​In this case, the proposed grounds of appeal without particulars, are as follows: GROUND 1: The Court below erred in law by the application of wrong criteria to rely on Exhibit H to dismiss the Appeal of the Appellant.

GROUND 2: The Court of Appeal erred in law by failure to duly consider and pronounce on all the issues raised by the Appellant before dismissing the appeal. GROUND 3: The learned Justices of Court of Appeal erred in law by the application of wrong criteria to take into consideration Suit No. B/6/07 to dismiss the appeal. GROUND 4: The Court of Appeal erred in law by failure to exercise its judicial duty judicially and judiciously in dismissing the appeal of the Appellant.

GROUND 5: The Court of Appeal erred in law by the inference that Exhibit H is a composite plan in spite of the fact that it was not made by the Respondent’s Witness (i.e., DW2), who was not the maker of the document. GROUND 6: The Court of Appeal erred in law by application of wrong criteria to adjudge that the Appellant failed to prove the identity of the land in the absence of composite plan evidenced in Exhibit H. GROUND 7: The Court of Appeal erred in law by the failure of the Justices of the Court to pronounce on all the issues raised by the Appellant at the Appeal.

GROUND 8: The Court of Appeal erred in law on the inference that Exhibit H is a composite plan legally admissible by virtue of Section 53 of the Evidence Act and accorded evidential value to Exhibit H based on Section 53 of the Evidence Act. The Respondent has argued vehemently that the Applicant has not adduced good and substantial reason for its failure to appeal within the prescribed time. He cited Order 2 rule 32 of the Supreme Court Rules and quoted what I said in GTB V. Est Master Constr.

Ltd. (supra), on this particular point, as follows: “As the Respondent rightly submitted, leave to appeal in this case where the Court of Appeal affirmed the findings of fact of the trial Court can only be granted in exceptional circumstances.

This is clearly spelt out in Order 2 Rule 32 of the Rules of this Court, which provides that – Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 233(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances. The definition of the word “exceptional” is “much greater than usual” – see Cambridge English Dictionary.

In other words, in this case where the Court of Appeal has affirmed the findings of fact of the trial Court, the Applicant has to jump through an extra hoop to convince this Court to grant this Application; how has it fared? Not very good, I must say. There is nothing exceptional about the circumstances of this case to sway this Court to grant this Application in favour of the Applicant.” ​The point made by the Respondent is well taken The Rules of this Court speak of grounds of appeal, which prima facie, show good cause why the appeal should be heard.

Prima facie means “on the face of it, on first appearance but subject to further evidence or information”- see Black’s Law Dictionary, 9th Ed. The proposed eight Grounds of Appeal must show, on the face of it, “good cause” why the appeal should be heard before this Application can be granted. As l. T. Muhammad, JSC (as he then was) observed in Malari V. Leigh (supra): “Even the ordinary man on the street knows what is good. In ordinary usage, it connotes a high standard or quality, which is opposite to bad or poor.

Anything good in law is something, which is valid, sufficient, effectual, unobjectionable, sound and/or responsible.

Thus, an Application for extension of time within which to seek leave to appeal is not granted as a matter of cause.” An Application for extension of time within which to seek leave to appeal is not granted as a matter of cause, and where the Applicant is praying this Court for extension of time within which to seek leave to appeal against the concurrent findings of fact by the two lower Courts, it goes without saying that it is faced with a herculean task because it is only in exceptional circumstances that this Court will grant leave to appeal against such concurrent findings - see Tilbury Constr.

Co. V. Ogunniyi (1988) 2 NWLR (Pt. 72) 64, wherein this Court said: “Exceptional circumstances could be wide and could include misapplication of the facts in evidence, if the evidence available in Court is at variance with the findings or if the findings are patently perverse.” ​In this case, I have examined the Record of Appeal and without mincing words, I will say that there is nothing that could amount to exceptional circumstances to necessitate indulging the Applicant by granting this Application in its favour.

I have also scrutinized the proposed eight Grounds of Appeal vis-a-vis the evidence adduced by the Parties and the concurrent findings of fact by the trial Court and the Court of Appeal, and being a Justice of the Supreme Court, I cannot point to one ground that will tax my intellect and reasoning faculty – see Obikoya V. Wema Bank (supra). The second condition is found wanting.

The result is that this Application lacks merit and it is hereby dismissed. The Applicant shall pay the Respondent costs assessed at N1 Million Naira.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Augie, JSC, obliged me with the draft of the lead ruling just delivered. I entirely agree with His Lordship that this application lacks merit and should be dismissed.

​His Lordship had very, ably, considered the facts, as disclosed in the affidavit evidence before this Court, as well as the Grounds of Appeal, in line with the current position of the law on conditions for the grant of applications of this nature: what has now become known as “trinity prayers.”

I am in complete agreement with the opinions and findings in the lead ruling and thus adopt same as mine in dismissing this application for want of merit, I also abide by the orders as to costs. Application dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading in advance, the draft of the judgment just delivered by my learned brother AMINA ADAMU AUGIE JSC. I agree with the conclusion that the application should be dismissed. The cause of action is a claim of title to land in which the trial Court had held that the Appellant did not prove the reliefs sought in the claim the Appellant appealed.

​The Court of Appeal resolved the sole issue before it in favour of the Respondent to the effect that the Claimant did not file a composite site plan and thus did not establish the precise identity of the land to which any declaratory or executory order could be attached. Judgment was delivered on 4/12/2019 but the Appellant did not file a notice of appeal before 3/3/2020 within time. The issue in this Court is whether this motion for trinity orders ought to be granted to the applicant having fulfilled the conditions precedent to ensure the success of the prayers.

This is a discretionary relief given to prospective applicants who wish to appeal out of the time provided by the rules. The guiding principles established by case law and by the rules are that in considering an application for extension of time within which to appeal, the Applicant must give by affidavit good and satisfactory reasons for the lateness and good, substantial and arguable grounds of appeal. Both conditions must co-exist before leave to appeal should be granted. See CBN v. AHMED (2001) 5 SCNJ 307, (2001) 11 NWLR Pt. 724 Pg. 369, ANACHEBE v. IJEOMA (2014) 14 NWLR Pt. 1426 Pg.168.

By the affidavit in support of this application, the only reason given for the delay in filing the notice of appeal is that of inadvertence of counsel. That old age excuse is no more tenable. As stated by this Court in SC/129/2018 PETGAS RESOURCES LTD v. LOUIS MBANEFO delivered on 20/12/2021, ​My Lords, the excuse of indolence or inadvertence or ignorance has had its day. It should no more be accepted from counsel as a matter of cause. The practice generally accepted in the interest of justice has been that litigants should not be made to suffer for the negligence of counsel.

That indulgence has been so abused that I am of the strong view that such an excuse should no more be tenable. Counsel now habitually give reasons like inadvertence (loosely translated as incompetence) of counsel, mistake of counsel etc. for failure to obey rules of Court when such decisions impact negatively on their clients. It is only in the legal profession in Nigeria that counsel readily admits by affidavit evidence that they were too lazy or ignorant to do their professional duties properly.

In the circumstances of this case, that reason or excuse is not legally acceptable as a matter of cause anymore. Applicant’s attitude to obedience to the rules of Court must change. The liberal attitude of giving access to justice because of sympathy for litigants who have already had their day at the trial Court and already approached the first appellate Court must give way to a more even handed judicial policy. After all, justice is a two-way street.

Where is the justice to the successful litigant at the two lower Courts, who is being deprived of the fruits of judgment by the indolent and careless Counsel of the judgment debtor? It is such a shame that this concession of carelessness and indolence has been the acceptable norm by the superior Courts. It should not be perpetuated.

On the 2nd mandatory and co-junctive condition to grant this application, it has been held in a plethora of decisions by this Court that the Applicant must show good, substantial and arguable grounds of appeal. There must be a prima facie cause, clear from the records and grounds of appeal why the appeal should be heard. See FHA v. ABOLAJI ABOSEDE (1998) 1 SCNJ 133, (1988) 2 NWLR Pt.537 Pg. 177; BIOCON AGROCHEMICALS LTD v. KUDU HOLDING PTY LTD (2001) 12 SCNJ 27, (2000) 15 NWLR Pt. 691 Pg.493; IMEGWU v. OKOLOCHA (2013) 2 SCNJ 514; (2013) 9 NWLR Pt. 1359 Pg.347.

​The previous conventional wisdom had been that in considering an application for extension of time within which to appeal, the Court is not concerned with deciding the merits of the grounds of appeal. See CENTRAL BANK OF NIGERIA v. SAIDU AHMED (2001) 5 SCNJ 307. ​ ​My Lords, that was a judicial opinion developed and entrenched over the years on the basis that at the interlocutory level, the Court cannot deal with substantive issues.

On the other hand, how then does the appellate Court determine what constitutes “substantial and arguable” grounds of appeal if all the Court does is to determine that the ground is properly couched and shows a grievance when it is sometimes patently obvious from the record of the lower Court that the lower Court had properly decided the issues of facts and law in controversy by the application of settled principles of law. The English Dictionary meaning of “substantial” includes tangible, real, of solid character or quality, firm, strong, fundamental.

Where the record reveals that fundamental errors of law or conclusions of facts have been made by the lower Court, it is only judicious and judicial to grant leave to appeal. The dictionary meaning of “arguable” includes susceptible to debate, challenging, capable of being supported by good argument. The synonyms include tenable, defensible, credible etc. In this case, the two lower Courts held that the Applicant did not prove its claim to the disputed land by its failure to identify the land through the filing of a dispute plan.

There are concurrent opinions on the settled position of the law in this regard. Leave to appeal should only be granted in exceptional circumstances. The affidavit in support of the motion for leave did not reveal any such circumstances. If on the face of the record, an appeal is not tenable because the judgment of the lower Court is devoid of any tangible error that has caused miscarriage of justice, why grant leave just for this Court to persistently repeat settled principles of law ad nauseum?

This open arms policy to allow every insubstantial appeal to be heard by this Court has led to the Court being inundated with appeals on matters that should have ended at the lowest rung of the judicial ladder. This Court is fast becoming just another higher litigation Court rather than the Supreme Court which should be a policy Court as envisaged by Section 233(3) -(6) of the Constitution. I much prefer and rely on IROEGBU v.

OKWORDU & ANOR (1990) LPELR-1539 SC to hold that leave should be granted only where the record shows prima facie error of law, the appeal would involve a general principle of law to be decided by the Court for the first time, a novel question of importance, the resolution of which would be to public advantage.

Where the grounds are “substantial” and “arguable” as presently interpreted by the Courts, particularly in concurrent findings of facts by the two lower Courts, where the merits of the controversy has been decided in accordance with settled principles, I see no merit in wasting public resources, precious judicial time and resources to rehash these principles, only to end up dismissing the appeal which would have added nothing to the system. For reasons already well-articulated in the lead ruling, I too dismiss this application as lacking in merit. I abide by the order as to costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have had the privilege of a preview of the ruling just delivered by my learned brother, the HON. JUSTICE AMINA ADAMU AUGIE, JSC. I concur with the reasoning reached therein, to the conclusive effect that the present Application is grossly devoid of merits.

​Hence, having adopted the reasoning and conclusion reached in the ruling as mine, I too hereby dismiss the Application, and abide by the consequential order made. Application dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, AMINA ADAMU AUGIE, JSC. I completely agree with the reasoning, conclusions, decisions therein.

Judgment

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 14th of April, 2008 wherein the lower Court dismissed in limine the appeal filed by the Appellant which was pending before the said Court for want of diligent prosecution. The Appellant’s brief was not before the Court although the Court had granted the Appellant extension of time to file the said brief. A summary of the facts leading to this appeal are as stated hereunder.

​The 1st Respondent (now under liquidation by the Nigeria deposit Insurance Corporation) as plaintiff on 14th July, 1992 commenced an action at the High Court of Lagos State against the 2nd and 3rd Respondents as 1st and 2nd Defendants respectively by a special endorsed Writ of Summons claiming the sum of N5,417,746.43 (Five million four hundred and seventeen thousand, seven hundred and forty-six naira, forty-three kobo only), interest on the said sum at 34% until judgment and thereafter until satisfied, resulting from a credit facility which it extended to the 1st Defendant and was guaranteed by the 2nd Defendant.

Judgment was given in favour of the 1st Respondent but was not satisfied. The 1st Respondent, because of the inability of the 1st and 2nd Defendants (now 2nd and 3rd Respondents) to satisfy their indebtedness, applied and sold the immovable properties of the 3rd Respondent known as 12A and 12B Ladipo Oluwole Street, Lagos, titled number No. 0646.

The Appellant and 4th Respondent, upon becoming aware of the existence of the judgment including steps taken by the 1st Respondent to levy execution upon the properties of the 3rd Respondent, applied and were joined as parties to the suit. The 4th Respondent claimed it had an interest and mortgage over the property.

​Subsequent upon being joined, the Appellant applied to the trial Court for extension of time to apply to set aside the sale of their alleged properties by the 1st Respondent in the execution of the judgment against the 2nd and 3rd Respondents, an order setting aside the sale of the said properties and certificate of sale issued pursuant to the sale. The aforestated application was refused and dismissed by the learned trial Judge on 6th October, 2000.

The Appellant being dissatisfied with the aforesaid ruling of the trial Court, appealed against the said decision to the Court of Appeal, Lagos Division.

At the Court of Appeal, the Appellant filed a motion on notice dated 5th June, 2002 for leave to file additional grounds of appeal, extension of time to bring in a supplementary record of appeal, an order deeming the supplementary record of appeal already compiled and served as duly filed and served, extension of time to file the Appellant’s brief of argument and an order deeming these processes as duly filed and served.

The Court of Appeal on 18th January, 2005 heard the Appellant’s motion dated 5th June, 2002 and extended the time allowed the Appellant to bring in the supplementary record, leave to file additional grounds of appeal which notice should be filed within fourteen (14) days from the date of Court order together with the Appellant’s brief of argument.

​On 25th May, 2006, the Appellant filed a motion on notice dated 22nd May, 2006 praying the lower Court for extension of time to comply with the orders made in favour of the Appellant on 18th January, 2005. When this motion on notice came up for hearing on 3rd July, 2006 the lower Court observed that the 2nd and 3rd Respondents thereat had not been served. The learned counsel for the Appellant applied to withdraw the motion which was granted by the Court below.

On 30th January, 2007, the 5th Respondent filed a motion on notice dated 25th January, 2007 urging the Court to dismiss the appeal for lack of diligent prosecution by the Appellant. The learned counsel for the Appellant filed a counter affidavit to oppose the said motion.

On 25th September, 2007, the Appellant filed an application dated 24th September, 2007 praying the Court to further extend the time within which to file additional grounds of appeal, Appellant’s brief of argument and to deem the processes filed as properly filed. The Appellant also sought to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation (NDIC) and also Spring Bank Plc for the 4th Respondent respectively. This motion was however not served on the 2nd 3rd and 4th respondents and was adjourned to 16th October, 2007 for hearing.

​At the hearing of the motion on 14th April, 2008, the Appellant again, applied to withdraw its motion dated 24th September, 2007, and filed on 25th September, 2007. The other parties did not object to the Appellant’s application to withdraw the said motion. The said prayer was granted by the lower Court and the motion for further extension of time was struck out.

Thereafter, the learned counsel for the 5th Respondent applied to the Court to be allowed to move the pending motion to dismiss the appeal for lack of diligent prosecution. The said motion was brought pursuant to Order 17 Rule 10 of the Court of Appeal Rules 2007. The lower Court acceded to the application of the learned counsel for the 5th Respondent. After the motion was successfully moved, the Court below granted the prayer by invoking the provision of Order 17 Rule 10 of the Court of Appeal for want of diligent prosecution.

Dissatisfied with the decision of the Court below, the Appellant filed Notice of Appeal on 12th May, 2008. The said Notice of Appeal has three grounds out of which the Appellant has distilled two issues for determination to wit:- 1. Whether in the circumstances of the appeal, the decision contained in the ruling of the Court of Appeal dismissing the appeal for want of prosecution was properly made under Order 17 Rule 10 of the Court of Appeal Rules, 2007, 2.

Whether in the circumstances of the appeal, the dismissal of the appeal in limine by the Court of Appeal did not amount to denial of fair hearing to the Appellant.

For the 1st Respondent, its learned counsel, Ogechi Ogbonna Esq, who settled its brief, distilled two similar issues but couched differently as follows:- 1. Whether the Honourable Court of Appeal was right to dismiss the appeal filed by the Appellant for lack of diligent prosecution, 2. Whether the Appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/C/394/2011 filed by the Appellant.

The 2nd Respondent’s counsel, Lawrence C. Ohineme, Esq also distilled two issues thus:- 1. Whether the dismissal of the Appellant’s appeal by the Court below on ground of indolent based on Order 17 Rule 10 of the Court of Appeal Rules, 2007 was proper. 2. Whether the Court below denied the Appellant fair hearing in the dismissal of its appeal,

​Mr. Godson C. Ugochukwu, learned counsel for 3rd Respondent also formulated two issues to wit:- 1. Whether the lower Court was right to dismiss the Appellant’s appeal for want of diligent prosecution in line with Order 17 Rule 10 of the Court of Appeal Rules, 2007. 2. Whether the Appellant was not afforded fair hearing by the lower Court before the appeal was dismissed.

Learned counsel for the 4th Respondent, Chinasa Unaegbunam Esq, married the two issues and rendered them as follows:- “Whether the Court below was right in its decision to dismiss the Appellant’s appeal based on Order 17 Rule 10 of the Court of Appeal Rules, 2007 was proper (sic) given the circumstances of the case including the Appellant’s right to fair hearing.”

In respect of the 5th Respondent, his counsel, Dr. George O. A. Ogunyomi, who settled the brief, adopted Appellant’s first issue and added his own version of issue two as follows:- “Whether the Court of Appeal in dismissing the appellant’s appeal after the Appellant withdrew its pending application for regularization of its brief of argument and in the absence of any appellant’s brief of argument, did not accord the parties fair hearing.”

​Before taking a closer look at the issues submitted for the determination of this appeal, I propose to entertain the preliminary objection raised by the 1st Respondent against the hearing of this appeal. Notice of preliminary objection was filed on 4th January, 2022 and same is argued on pages 5-8 of the 1st Respondent’s brief filed on 30th October, 2020 but deemed properly filed on 17th November, 2020.

Learned counsel for the Appellant C. O. Ekezie, Esq has filed argument in opposition to the 1st Respondent’s preliminary objection. It was filed on 17th November, 2020. And upon receipt of Appellant’s reply brief, the 1st Respondent filed reply on points of law (on the preliminary objection) on 19th November, 2020.

PRELIMINARY OBJECTION:- The kernel of the 1st Respondent’s objection to the hearing of this appeal, is that this Court lacks the jurisdiction to hear this appeal commenced by a Notice of Appeal dated 12th May, 2008 and filed same date.

The objection, according to learned counsel for the 1st Respondent is based upon the failure of the Appellant to seek for and obtain leave of the Court in line with extant provisions of Section 417 of the Companies and Allied Matters Act, 1990 before filing the appeal against the decision of the Court of Appeal delivered on 14th April, 2008 to dismiss the appeal filed by the Appellant to the Court below. That the said Companies and Allied Matters Act, 1990 was the operative law at the time this appeal was filed.

Learned counsel submitted that the Notice of Appeal filed to commence this appeal is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court first sought and obtained.

​It was further contended that the health status of the 1st Respondent including the fact that the 1st Respondent is under liquidation was fully known to the Appellant, which, prior to the dismissal of the appeal by the Court below, had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the motion on notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave of the Court below to substitute the 1st Respondent with its liquidator, the Nigeria Deposit Insurance Corporation, referring to page 412 of the record of appeal.

He submits that Section 650 of CAMA defines Court to include Court of Appeal and the Supreme Court. It is his view that the Appellant ought not to have commenced this appeal without leave first sought and obtained, relying on Onwuchekwa v NDIC (2002) 5 NWLR (pt. 760) 371.

In conclusion, learned counsel submitted that the Appellant failed to commence this appeal by due process of law and failed to fulfill a mandatory statutory condition precedent before filing this appeal. Referring to the case of Madukolu v Nkemdilim (1962) 2 SCNLR 341, he submitted that this Court lacks the jurisdiction to entertain this appeal and that it should be struck out.

​Responding, the learned counsel for the Appellant in their reply brief submitted that the preliminary objection is misconceived and unmeritorious as the said provision of CAMA under which the 1st Respondent brought this objection is inapplicable to the facts of this appeal. He submitted that as shown in paragraph 2 of the 1st Respondent’s brief of argument under “facts of the matter”, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal and secondly, the matter was commenced at the High Court of Lagos State and not the Federal High Court.

He relies on the case of Onwuchekwa v NDIC (supra) also relied upon by the 1st Respondent and the case of Agro Allied Development Ent. Ltd v Northern Reefer & 2 Ors (2009) 5 – 6 SC (pt.1) 110 at 123.

Learned counsel further submitted that Section 417 of CAMA relevant to this issue applies only to matters commenced before the Federal High Court, as “the Court” referred to in that provision is the Federal High Court, not a State High Court.

He contended further that the fact that the Appellant filed Notice of Appeal against the decision of the lower Court in the matter commenced at the trial Court by the 1st Respondent, has not detracted from the fact that this suit was commenced by the 1st Respondent since an appeal is a continuation of an action and not the commencement of a fresh action.

Learned counsel for 1st Respondent filed a reply on points of law. Firstly, he submitted that by Section 650 of CAMA, the Court of Appeal and Supreme Court are part of the Courts envisaged in Section 417 of the Act. Secondly, that an appeal being a continuation of hearing does not remove the duty and burden imposed upon the Appellant by law to comply with mandatory requirements of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA.

He urged the Court to hold that part of the judgment of Onnoghen, JSC (as he then was) in Agro Allied Development Ent Ltd v Northern Reefer & 2 Ors (supra) was at most obiter dicta which does not change the position of this Court inOnwuchekwa v NDIC (supra). He urged the Court to uphold the preliminary objection.

It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate Court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in Court is a question which touches on the jurisdiction of the appellate Court. If no proper Notice has been filed, then there is no appeal for the Court to entertain.

See FBN PLC v TSA Industries Ltd (2011) 15 NWLR (pt.1216) 247, Anadi v Okoti (1972) 7 SC page 57, Central Bank of Nigeria v Okojie (2004) 10 NWLR (pt.882) 488, Olanrewaju v BON Ltd (1994) 8 NWLR (pt.364) 622, Abubakar v Waziri (2008) 14 NWLR (pt.1108) 507.

In the instant appeal, the contention of the 1st Respondent is that the Notice of Appeal dated and filed by the Appellant on 12th May, 2008 is incompetent, being a process filed to commence action against a company undergoing liquidation at the material time but without the leave of this Court being first sought and obtained vide Section 417 of the Companies and Allied Matters Act (CAMA) 1990 being the Act in force at the time of filing this appeal.

Let me quickly state that Section 417 of Companies and Allied Matters Act, 1990 is in all fours with Section 580 of Companies and Allied Matters Act, 2020. Now Section 417 of Companies and Allied Matters Act, 1990 provides:- “…if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court.” ​The above provision is very clear and unambiguous.

It means clearly that if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company undergoing liquidation. The intendment of the said provision is not to stop an aggrieved party from proceeding against the company which has been issued a winding up order or which a provisional liquidator has been appointed, but that leave of Court must be sought and obtained before commencing the action or proceedings.

As was pointed out by the learned counsel for the 1st Respondent, the health status of the 1st Respondent including the fact that the 1st Respondent was under liquidation was fully known to the Appellant, which prior to the dismissal of the appeal by the Court below had admitted that the 1st Respondent was since under liquidation in paragraph 3(a) of the affidavit in support of the Motion on Notice dated 24th September, 2007 and filed on 25th September, 2007 seeking for leave to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation as found in page 412 of the record which states:- “3(a) The 1st Respondent, Pinnacle Commercial Bank Limited has since been under liquidation by the Nigerian Deposit Insurance corporation whose head office is at Mamman Kontagora House, 23A Marina Lagos.

Further, that all the assets and liabilities of the said 1st Respondent have been taken over by the said NDIC ” The above position has not been denied by the Appellant. And in any case, the record of this Court and/or any other Court is binding on the Court and the parties. It is trite that a crucial fact which is admitted does not require further proof as no person would admit a fact which could work against his interest unless it is true.

See Sapo v Sunmonu (2010) 11 NWLR (pt.1205) 374, Adeusi v Adebayo (2012) 3 NWLR (pt,1288) 534 at 558 paragraph B, INEC v Oshiomole (2009) 4 NWLR (pt.132) 607 at 662. It is my well considered view that as at the time the Appellant filed its notice of appeal in this case, it knew that the 1st Respondent was under liquidation and that a liquidator i.e. NDIC had been appointed. My Lords, the Appellant does not say it did not know that the 1st Respondent had fallen into liquidation and that a liquidator had been appointed.

All it is saying is that the Supreme Court is not one of the Courts referred to in Section 417 of the CAMA, 1990. This, with due respect, is not correct.

Section 650 of CAMA, 1990 which is retained in Section 868 of CAMA, 2020, defines “Court” or “the Court” as used in relation to a company under liquidation as ‘the Federal High Court, and to the extent to which application may be made to it as a Court includes the Court of Appeal and the Supreme Court of Nigeria.” Thus the argument of learned counsel for the Appellant that “Court” as used in Section 417 of CAMA, 1990 does not include the Court of Appeal and the Supreme Court, does not fly at all.

It is my well considered opinion that the requirement of obtaining leave stipulated by Section 417 of CAMA, 1990 includes obtaining leave of the appropriate appellate Court to appeal against any decision made in any suit in which a company under liquidation is a party since Section 650 of CAMA defines Courts to include the Court of Appeal and the Supreme Court. Luckily for us, this is not the first time this Section of CAMA is to be considered by this Court. In Alex O. Onwuchekwa v Nigeria Deposit Insurance Corporation (Liquidator of Co-operative and Commerce Bank Nig.

Ltd) (2002) 5 NWLR (pt760) 317, this Court held that by virtue of the provision of Section 417 of the Companies and Allied Matters Act, 1990, if a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company except by leave of the Court. It added that what that section prohibits is action against the company without leave of Court and not the company proceeding against another person.

This decision demolishes the Appellant’s argument that after all, it was the 1st Respondent that commenced the proceedings that gave rise to this appeal. See also Agro Allied Development Ent. Ltd v Northern Reefer & 2 ors (2009) 5-6 SC (pt.1) 110. Learned counsel for the Appellant argued that because an appeal is a continuation of hearing of a case and as such, there was no need to obtain leave. This is, with respect, not tenable.

It is my view that an appeal being a continuation of hearing does not remove the duty and burden imposed on the Appellant by law to comply with mandatory requirement of obtaining leave where the concerned company goes into liquidation as stipulated in Section 417 of CAMA, 1990. ​On the whole, I agree entirely with the learned counsel for the 1st Respondent that liquidation is a special circumstance which affects the concerned company and triggers the provision of Section 417 of CAMA, 1990, now Section 580 of CAMA, 2020 which makes it mandatory (by the use of the word “shall”) for leave of either the Court of Appeal or this Court to be sought and obtained by the Appellant for there to be a valid appeal.

It is trite that where the law has stipulated in a mandatory provision applicable in specified circumstances, same must be given effect to. It is usually referred to as a condition precedent. This Court has properly elucidated the expression “condition precedent” in J.

S Atolagbe & Ors v Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (pt.522) 537 at 565 per Uwais CJN thus:- “Condition is a provision which makes the existence of a right dependent on the happening of an event; the right is then additional as opposed to an absolute right A true condition where the event on which the existence of the right depends is in the future uncertain, A “Condition Precedent” is one that delays the vesting of a right until the happening of an event” ​By the same token in this case in hand, the seeking and obtaining of leave is the condition precedent that would first take place before the vesting of the right to approach this Court.

The condition must be met before the Appellant’s right to ventilate in this Court would inure. See Attorney General of Kwara State & Anor v Alhaji Saka Adeyemo & Ors (2016) LPELR-41147 (SC), Drexel Energy & Natural Resources Ltd & Ors v Trans International Bank Ltd & Ors (2008) 18 NWLR (pt,1119) 388, Capt, Amadi v NNPC (2000) 10 NWLR (pt,674) 76, Niger care Development Company Limited v Adamawa State Water Board & Ors (2008) 8 NWLR (pt.1093) 498.

Finally, the Appellant, having failed to obtain leave as prescribed in Section 417 of the CAMA, 1990 before filing this appeal, the said notice of appeal is incompetent and liable to be struck out. Once the law has stipulated the procedure for achieving an end, same has to be complied with. A litigant who fails to observe such provision cannot activate the jurisdiction of this Court as you cannot put something on nothing and expect it to stand. It will certainly and surely collapse. SeeMacfoy v U.A.C. (1961) 3 All ER 1169, Madukolu v Nkemdilim (1962) 2 SCNLR 341.

This appeal commenced without the leave of this Court is null and void. The preliminary objection to the hearing of this appeal is thus upheld. Accordingly, this appeal is hereby struck out. I make no order as to costs. Appeal struck out.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, John Inyang Okoro, JSC and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.

On the 14th April, 2008, the Court of Appeal, Lagos Division or Court below or lower Court, Coram: Adamu, Mukhtar JJCA and A. Jauro JCA (as he then was), dismissed the appeal filed by the Appellant under Order 17 Rule 10 of the Court of Appeal Rules 2007 (Order 19 Rule 10 Court of Appeal Rules 2016) for failure of Appellant to file his brief of argument after hearing counsel for both parties upon the application of counsel for the 5th Respondent to dismiss the appeal for want of diligent prosecution.

​The fuller details of the facts are well set out in the leading judgment and nothing will be gained in repeating them save for reference to any part when it becomes necessary.

On the 10th day of January, 2022, date of hearing, learned counsel for the Appellant, Celestine O. Ejezie adopted the brief of argument filed on 30/10/2020 and deemed filed on 17/11/2020 and reply briefs to the arguments against the briefs of 1st, 2nd, 3rd, 4th, and 5th Respondents respectively. He crafted two issues for determination as follows:- 1. Whether in the circumstance of the appeal, the decision contained in the ruling of the Court of Appeal dismissing the appeal for want of prosecution was properly made under Order 17 Rule 10 of the Court of Appeal Rules 2007 (Grounds 1 and 3) 2.

Whether in the circumstances of the appeal, the dismissal of the appeal in limine by the Court of Appeal did not amount to denial of fair hearing to the appellant (Ground 2)

Learned counsel for the 1st Respondent, Ogechi Ogbonna Esq adopted the brief of argument filed on 4/9/2019 and raised two issues for determination, in the event of the Preliminary Objection argued in the brief was not upheld. The issues are thus: 1. Whether the Honourable Court of Appeal was right to dismiss the appeal filed by the appellant for lack of diligent prosecution. 2. Whether the appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/L/394/2011 filed by the appellant.

Learned counsel for 2nd Respondent, Lawrence C. Ohineire Esq adopted the brief of argument filed on 4/11/2020 and deemed filed on 17/11/2020 and conceded the appeal.

Learned counsel for the 3rd Respondent, Godson C. Ugochukwu adopted the brief of argument filed on 4/11/2020 and deemed filed on 17/11/2020 and conceded the appeal.

Chinasa Unaegbunam Esq, learned counsel for the 4th Respondent adopted the brief of argument filed on 15/12/2020 and conceded the appeal.

Dr. George O.A. Ogunyomi, learned counsel for the 5th Respondent adopted the brief of argument filed on 16/11/2020 and deemed filed on 17/11/2020 and adopted Appellant’s issue 1 and crafted his on Issue 2 thus: 2. Whether the Court of Appeal in dismissing the appellant’s appeal after the appellant withdrew its pending application for regularisation of its brief of argument and in the absence of any appellant’s brief of argument did not accord the parties fair hearing.

I shall utilise the issues crafted by the 1st Respondent as they are seen simply put together and apt.

ISSUES 1 & 2 1. Whether the Court of Appeal was right to dismiss the appeal filed by the appellate for lack of diligent prosecution. 2. Whether the appellant was granted an opportunity to be fairly heard by the Court of Appeal in the determination of Appeal No. CA/L/394/201 filed by the appellant.

Canvassing the stance of the Appellant, learned counsel contended along the path hereunder stated thus: The fact that the Appellant had filed, albeit out of time, both the Appellant’s brief of argument and Appellant’s Reply Brief at the Court below before the date of the dismissal of the appeal was sufficient evidence of the appellant’s readiness to prosecute the appeal. 1. The Court below failed to properly evaluate the evidence placed before it by the Appellant before arriving at its decision to dismiss the appeal for want of prosecution.

It also gave much weight to irrelevant matters in arriving at its decision. 2. The Court below failed to take cognisance of the fact that the Appellant had filed and served an application for the regularisation of the Appellant’s brief of argument which had been filed out of time which application was withdrawn upon a defect being highlighted by the Court below for the purpose of the correction of the defect on the face of the motion paper after the Court below had refused to allow the Appellant’s counsel to argue only part of the prayers of the motion not tainted by the said defect. 3.

The 5th Respondent’s motion to dismiss the appeal for want of prosecution was heard and granted by the Court below notwithstanding that it had not been served on some of the parties and the hearing notice for same was also not served on all the parties contrary to the order of the Court below given at an earlier sitting of the Court. 4.

By dismissing the appeal in limine for the failure of the Appellant’s counsel to have filed the appellant’s brief of argument within the time extended by the Court below for doing same, which failure was attributed to the inadvertence of the sins of its counsel. 5. Any reasonable man who had watched the proceedings of the Court below on the day that the appeal was dismissed would have left the Court with the conclusion that the Appellant had not been given a fair hearing.

The Court below failed to allow the Appellant any time to correct the error the Honourable Court had spotted on the Appellant’s motion to regularise the processes which had been filed out of time before hearing and granting the motion to dismiss the appeal for non-filing of the Appellant’s brief. The lower Court no doubt mechanically applied Order 17 Rule 10 of the Court of Appeal Rules 2007 in a manner to suggest that the said rule has taken away the discretion of the Honourable Court in the matter. 6.

The general rule that if a principle of natural justice is violated, it does not matter whether, if the proper thing had been done the decision would have been the same, the proceedings would still be null and void is applicable to this appeal. He cited the following authorities among others, thus:- 1. A.G. Anambra State v Okeke (2002) FWLR (pt. 112) 175 at 195-196. 2. Bello Akanbi & Sons V Mamudu Alao & Anor (1989) 5 SC 1. 3. Ibodo v Enarofia (1980) 4-7 SC 42 4. Salu v Egeibon (1994) 6 NWLR (pt.348) 23 at 43 5. Enyibros Foods Processing Co. Ltd & Anor v NDIC (2007) 3 SC (pt.ll) 175 at 210 6.

Ntukidem & Ors v Asuquo & Ors (1986) 3 NWLR (pt.45) 905 at 931.

The slant of the 1st Respondent’s counsel went along the following lines: 1. The Apex Court lacks jurisdiction because of the failure of the Appellant to seek and obtain leave of this Court before filing the appeal in line with Section 417 Companies and Allied Matters Act (CAMA) 2.

The Court of Appeal rightly and correctly invoked the provisions of Order 17 Rule 10 of the Court of Appeal Rules, 2007 on the 18th April, 2008 to dismiss Appeal NO.CA/L/304/2001, upon the application of the 4th Respondent in view of the failure of the Appellant who applied for extension of time to file their Brief of Argument and was granted same prayer on 18th January, 2005; Ukangwu v Pitt (supra), Chinwe v Ude (supra), Kraus Thompson v National Institute for Policy and Strategic Studies (supra), Ogbu v Urum (supra). 3.

The application by the Appellant on 18th April, 2008 to withdraw their motion for further extension of time to among others filed their Brief of Argument which was granted in the absence of any objection by the other parties, and the subsequent moving of the application by the 4th Respondent to dismiss the appeal dated 30th January, 2007 and duly filed before the Honourable Court below, left the Court of Appeal with no other option but to dismiss the appeal in exercise of its powers pursuant to Order 17 Rule 10 Court of Appeal Rules, 2006. 4.

The Appellant cannot complain nor allege that it was denied the right to be fairly heard, since it was given the opportunity to file its brief of argument and related processes but failed to do so even within the extended period allowed by the Court of Appeal for the Appellant to file same sequel to the Appellant’s prayer. We rely on the decision in Buhari vs Obasanjo (2003) 17 NWLR part 850, page 510. 5.

The Appellant exercised their right to fair hearing by failing to file their Brief of Argument even within the extended period, despite being given all opportunity to file their Brief of Argument and related processes, and thereby waived their right to file. We rely on the decision inFasade vs. Babalola (2003)11 NWLR part 830 page 26. 6.

The waiver by the Appellant (failure to file their Brief of Argument within time) estopps the Appellant from alleging denial of their right to fair hearing by the Court of Appeal, having waived the same right by their failure to file their Brief of Argument within 14 days as ordered by the Court of Appeal on 18th January, 2005. 7. The Appellant has come to equity with unclean hands, having failed to obey the Rules of Court, and the ruling of the Court of Appeal to file within time and thereby do equity by filing their Brief of Argument within the extended period ordered by the Court of Appeal.

The Appellant cannot benefit from his wrong. We rely on the decisions in: Ibrahim vs Osunde (2009) 6 NWLR part 1137 page 382, at page 404 paragraphs D-E, Okpala vs Okpu (2003) 5 NWLR part 812 page 183, Ola vs Williams (2003) 5 NWLR part 812 page 48, Ezeanah vs Attah (2004) 7 NWLR part 873 page 468, Oforkire vs Maduike (2003) 5 NWLR part 812, page 166. 8.

The Appellant is guilty of abuse of Court process and that their appeal should be dismissed on that ground since it failed to obey the Order of the Court of Appeal which was granted further to their prayer for extension time to file their Brief of Argument. We rely on the decision in Arubo vs Aiyeleru (1993)3 NWLR 280 at 126.

Learned counsel for the 5th Respondent argued along the lines stated hereunder, viz: – The appellant had before the Court of Appeal when his appeal was dismissed an incompetent brief and reply brief. – That there was proper evaluation of the evidence placed before it by the Court of Appeal, – The respondent moved his application for dismissal of the appeal for want of diligent prosecution when the applicant had withdrawn his application to regularise the brief filed out of time. – That applicant has been negligent in the prosecution of his appeal.

The inadvertence or negligence of his counsel should be visited on the appellant. – The appellant it is submitted has been given a fair hearing. – The Court of Appeal rightly applied the provision of Order 17 Rule 10 of Court of Appeal Rules 2007, did not violate the principles of natural justice or the provisions of the constitution of the Federal Republic of Nigeria in dismissing the appeal.

​He cited the cases thus:- 1. Adehi v Atega (1995) 5 NWLR (pt.398) 65 at 66. 2. Asalu v Dakan (2006) SC (pt.ll) 120 at 127-129. 3. Newswatch Communications Ltd v Atta (2006) All FWLR (pt.318) 580 at 601. 4. Alon v Dandrill (Nig) Ltd (1997) 8 NWLR (pt.517) 495. 5. Chime v Ude (1996) 7 NWLR (pt.461) 379. 6. Zakari v Muhammad (2017)17 NWLR (pt.1594) 181. 7. Asani v Adeosun (1966) NMLR 268.

RESOLUTION In tackling the question of the implication of the Court of Appeal’s right to dismiss the appeal filed by the Appellant for lack of diligent prosecution, the Court is guided by the Court of Appeal Rules which Order 17 Rule 10 of the Rules of 2007 now Order 19 Rule 10 Court of Appeal, Rules, 2016 has provided for.

It stipulated thus:- “Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. (2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may suo motu dismiss the appeal for want of prosecution.” In this instance, the Appellant had neglected to file his brief of argument within time despite the clear provisions of the Rules of the Court and the time and indulgence earlier given to it and the 5th Respondent applied to have the appeal dismissed for want of diligent prosecution.

The Appellant filed a second application for extension of time to file its brief but withdrew the application on the date it came up for hearing. Since time was not further extended by the Court, as the Appellant’s counsel withdrew his second application for extension of time to file its brief of argument out of time, the purported brief filed out of time by the Appellant was incompetent.

Counsel for the 5th Respondent moved his said application to dismiss the appeal for want of diligent prosecution, the Court granted same and the appeal stands dismissed as there was no brief of argument before the honourable Court.

Since the Appellant’s brief, as rightly held by the Court of Appeal, was filed out of time and incompetent, the Respondent’s Briefs of Argument filed served no useful purpose there being no Appellant’s Brief of Argument to respond to. ​The Rules of the Court below on what the Court should do faced with a failure of the appellant to file the brief of argument are clear hence that failure would occasion a dismissal by the Court either suo motu or through the grant of an application by the Respondents for a dismissal.

It needs be emphasised that the appellate Court is empowered and duty bound to ensure that parties comply with the Rules of Court in filing briefs. The implication of a dismissal in circumstances as above described is that the appeal stands dismissed for all time and cannot be relisted. See the cases of Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255;Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632 at 648 paras B-C (SC) Ajayi v. Omorogbe (1993) 6 NWLR (Pt.301) 512 at 534 (SC); UBN Ltd. V. Odusote Book Stores Ltd (1995) 6 NWLR (Pt.421) 538 at 576 (SC), (1995)12 SCNJ 175; Tsokwa v.

UTC (Nig) Ltd. (2000) 7 NWLR (Pt.66) 654 at 660-661.; Adehi v. Atega (1995) 5 NWLR (Pt.398) 65 at 66 (SC), (1995) 65 SCNJ 44; Ajayi v. Omorogbe (1993) 6 NWLR (PT.301) 512. The provision of Order 6 Rules 10 Court of Appeal Rules 2002 is similar toOrder 17 Rule 10 Court of Appeal Rules 2007 and Order 19 Rule 10 Court of Appeal Rules 2016 and the decision of this Court in applying Order 6 Rule 10 Court of Appeal Rules 2002 should guide this Honourable Court in applying Order 19 Rule 10 Court of Appeal Rules 2019 in the instant case. See Asalu v.

Dakan (2006) SC (Pt.II) 120 at 127-129; Chukwuka & Ors v. Ezulike & Ors(1986) 5 NWLR (PT.901) 44 at 59, (2004) 5 SC; Kraus Thompson Org. v. N.I.P.SS (2004) 17 NWLR (Pt.538) 367; Akujinwa v. Nwaonuma (1998) 11-12 SC 112, (1998) 13 NWLR (Pt.583) 63; Ekpeto v. Wanogho (2004) 28 NWLR (Pt.905) 395 at 412-413; Babayagi v. Bida (1998) 1 SCNJ 108 at 116. It is to be noted that sympathy has no place in the hearing of an appeal as there is the need to comply with the rules of the Court. See Asalu v. Dakan (2006) 5SC (Pt. 111) 120 at 129-131.

Where there is non-compliance, an exercise of the Court’s power in accordance with the Rules made for doing justice cannot be labelled as improper or unjust. It is the duty of the Appellant to obey the rules of Court. It is also the duty of the Appellant to prosecute his case diligently. See Nueana v. Feda (2007) ALL NWLR (P.376) 611 at 627 paras E-F(S), (2007) 11 NWLR (Pt.1044) 59 at 79. In reiteration, parties to litigation need be reminded that rules of Court are instruments of justice and when they are applied as the case at hand, pandering to sentiments have no place.

Therefore, a recourse to the doctrine of fair hearing in the situation is akin to pouring water on top of a stone as the fair hearing concept is not available to indolent or lazy litigants who push to foist a fait accomplish on the Court and other parties by willfully disobeying the rules even after indulgences have been granted them as Appellant has done. I rely on Newswatch Communications Ltd v Atta (2006) All FWLR (pt.318) 580 at 601.

The Appellant refused to prosecute the appeal he filed since year 2001 wherefore the Court of Appeal had to put an end to the Appellant’s antics in keeping Order 17 Rule 10 of the Court of Appeal Rules 2007. It was the 5th Respondent that compiled records of appeal and yet the appellant did not file his brief of argument. The 5th Respondent’s counsel letter Exhibit Attached to pages by the 5th Respondent’s counsel to state that the Appellant had refused to comply with the Court Order and that the Respondent was suffering from injustice because of the delay caused by the Appellant’s counsel.

Evidently, the Appellant was in possession of the property in dispute, it is posited that this is an appropriate case in which the indolence of the Appellant’s counsel was visited on the Appellant who stood to benefit from the delay while remaining in possession of the property that had been sold to the Respondents in execution of the judgment of the High Court of Lagos State. The Appellants’ counsel at the Court of Appeal objected to the Respondents’ application for dismissal of the appeal but the Court took the trouble to consider the merit of the application and opposition thereto.

It follows that the Appellant who failed or neglected to file his brief of argument certainly has not complied with the necessary condition for hearing of his appeal and cannot cry that there was a lack of fair hearing. See Chime v Ude (1996) 7 NWLR (pt.461) 379; Oyeyipo v Oyinloye (1987) 1 NWLR (pt.50); First Bank of Nig. Ltd v T.S.A. Ind. Ltd (2007) All FWLR (pt.352) 1719 at 1745 (CA). The Court of Appeal, in applying the provision of Order 17 of Court of Appeal Rules 2007 in this case, ensured that the Appellant had been given the opportunity of being heard.

The Court, in applying the rules of Court, had created for the Appellant an environment of fair hearing but the Appellant failed to utilise the abundant opportunity given by the Rules and the Court. See, Eke v. Ogbonda (2007) ALL FWLR (Pt.351) 1456 at 1479; BCC LT. V. Imani & Sons Ltd & Shell Trustees Ltd (2007) ALL FWLR (Pt.348) 806 at 817. Therefore, the Appellant herein, who refused to make good use of the opportunity for fair hearing but engaged in delay tactics, pranks and antics, cannot complain thereafter of a breach of fair hearing in the circumstances.

The non-compliance with the order of the Court of Appeal by the appellant’s counsel was not due to mistake of law but a factual blunder which the Appellant as owner of the facts of the case must accept full responsibility and not pass the buck to counsel. See National Inland Waterway Authority v. the Shell Petroleum Dev. Co. Ltd (2008) Vol. 49 WRN 1 at 19 lines 25-35 per Tobi, JSC.

The Appellant’s conduct in causing the delay in complying with the Court order was meant to overreach the Respondents, and frustrate the intention of the Respondent to have the appeal determined within a reasonable time so that he can enjoy the fruits of litigation if he wins, especially as the Appellant and the 2nd and 3rd Respondents have clung to possession of the said property sold to the 5th Respondent.

For a fuller appreciation of what ensued in this matter, I shall at the risk of repetition draw attention to what transpired at the Court below, the Court of Appeal was right in what it did. The Respondent moved an application after failing to prosecute the appeal by filing a brief of argument as at the time of dismissal of the appeal is an obvious case of injustice to the 5th respondent. The Appellant who had 14 days to take necessary steps in prosecuting the appeal did not obey the gracious order of Court given at its instance from 18th January, 2005 until 25th day of May, 2006.

The Appellant deliberately filed its brief out of time and withdrew the application to regularise same, thereby putting no argument before the Court to be weighed on the imaginary scale of justice.

​Where the Court has the discretion to dismiss an appeal for want of diligent prosecution, the Court can look into the conduct of the party in breach of the rule right from the time the writ was issued as an appeal in law is a continuation of the original cause of action. Ajayi v Omoregbe (1993) 6 NWLR (Pt.310) 512 at 527. The Learned Justices of the Court of Appeal rightly considered the Appellant’s conduct in their ruling before dismissing the appeal of the appellant in this case.

On the alleged unchallenged affidavit evidence.

At paragraph 5.04 of its Brief of Argument, the Appellant accused the Court below of “failing to make any mention whatsoever of the uncontroverted facts deposed to on behalf of the Appellant as contained in the affidavit of Razaq Oshinaya in opposition to the affidavit in support of 4th Respondent’s motion to dismiss the suit for want of diligent prosecution.” The said accusation is unfair because the alleged “affidavit” is actually a further and better affidavit in support of the Motion dated 24/9/2007 and filed on 25/9/2007 by the Appellant and not a counter-affidavit to the 5th Respondent’s Motion filed on 30/01/2007 and praying the Court below to dismiss the appeal for want of diligent prosecution.

The Court below had no reason to consider a further affidavit filed by the Appellant in support of Appellant’s motion, which had been withdrawn as the further affidavit died with the withdrawal of the motion it was intended to further support.

Again to be said is that the Appellant who had been negligent in prosecuting his appeal, cannot hide behind the principle that counsel’s inadvertence should not be visited on him. This is because that principle is not open ended and not available to the Appellant whose conduct in the Court below fell short of what is expected.

I would take solace in the case of NNPC v Samfadek & Sons Ltd (2018) 7 NWLR (pt.1617) 1 at 10-11 per Eko, JSC thus: “Where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel and his client would take full credit. Neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant The rule cannot be applied to foist injustice on another party.

Nor will the rule apply in a clear case of abuse of Court’s process as in the instant case, Akanbi v Alao (1989) 3 NWLR (Pt.108) referred to.” In this case, the Court below did not fall for the pranks of the Appellant’s counsel law clerk who deposed to an affidavit claiming that the Appellant’s Chief Executive Officer had bad health conditions without attaching a medical certificate or giving cogent evidence for the non- prosecution of the appeal.

The Appellant is a limited liability company who has other principal officers who could prosecute the appeal, but no reason was adduced why any of them did not do so or even explain their failure to furnish counsel with the requisite information for prosecuting the Appellant’s appeal. From all fronts, the Appellant has not only been careless or negligent but engaged in antics to overreach the 5th Respondent. See University of Lagos v Aigoro (195) 1 SC (1985) 1 NWLR (pt. 1) 143.

There is nothing upon which a favourable viewing of the Appellant’s side can be made as the appeal lacks merit. I therefore dismiss it and abide by the consequential orders made.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I agree with him that the Preliminary Objection raised by the first Respondent to the hearing of this appeal must be sustained. A Preliminary Objection is an objection that if upheld, would render further proceedings before a Court impossible or unnecessary – Black’s Law Dictionary, 9th Ed. See also Akpan V.

Bob (2010) 17 NWLR (Pt. 1223) 421, wherein this held – An objection in law portrays a formal opposition of an objector against the happenings of an event which has already taken place or is about to take place now or in the future and the objector seeks the Court’s immediate ruling or intervention on the point. A Preliminary Objection seeks to provide an initial objection before the actual commencement of the thing being objected to.

In this case, the first Respondent’s contention is that the Notice of Appeal filed to commence this appeal is incompetent because the Appellant failed to seek and obtain leave of the Court in line with the provisions of Section 417 of the Companies and Allied Matters Act 1990, which applies in this case. ​The importance of a notice of appeal is enormous as it is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247.

It is also settled that where the language used in the legislation or statute or Constitution is clear, explicit, and unambiguous, the Court must give effect to it as the words used speak for themselves – see Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 227.

The said Section 417 says: If a winding up order is made or a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the Company except by leave of the Court. The operative words therein, as far as this appeal is concerned, are – no action shall be proceeded with against the Company “except by leave of the Court”. The words used in Section 417 of CAMA “speak for themselves”, and it follows, therefore, that since the Appellant failed to obtain leave of Court before filing this appeal, the Notice of Appeal is incompetent, and it must be struck out.

In the circumstances, this appeal commenced without the leave of Court being sought and obtained, is null and void.

The Preliminary Objection raised by the first Respondent to the hearing of this appeal is, therefore, upheld, and this appeal is hereby struck out. I also make no order as to costs.

ABDU ABOKI, J.S.C.: I had a preview of the lead judgment prepared by my Learned Brother, JOHN INYANG OKORO, JSC, just delivered. I am in entire agreement with the reasons and conclusion arrived thereat.

The Preliminary Objection filed by the 1st Respondent herein, attacks the Notice of Appeal for being incompetent and that the defects are fundamental enough to divest the Court of jurisdiction. Jurisdiction is a fundamental necessity for any adjudication and it is a threshold matter which has received judicial attention. See : Idisi vs Ecodriil (Nig.) & ors. (2016) LPELR- 48158(SC), where Nweze, JSC in reemphasizing the importance of jurisdiction said thus: ​”In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication.

As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply a nullity.”

The 1st Respondent, in challenging the jurisdiction of this Court, contended that the Notice of Appeal is invalid, thus divesting this Court of jurisdiction.

It is the law that a Notice of Appeal, being an initiating process, must be valid and competent to bestow jurisdiction on the Court. Thus, a Notice of Appeal is highly fundamental in an appeal as it is the lifeline on which any appeal stands. Once it is defective, it robs the Court of the jurisdiction to hear the appeal. See: Stirling Civil Engineering Ltd v. Fidelity Bank Plc (2013) LPELR-22634.

In this case, by the provisions ofSection 417 of the Companies and Allied Matters Act, 1990, (which was the operative law at the appeal was filed), is apposite. It provides that: “…If a winding up order is made or, a provisional liquidator is appointed, no action or proceedings shall be proceeded with against the company, except by leave of Court.” ​The consequence for not seeking for and obtaining leave, where leave is required, vide Section 417 of the CAMA 1990, is fatal to the instant appeal.

It is on account of this and the fuller reasons of in the lead judgment prepared by my Learned Brother, JOHN INYANG OKORO, JSC, that I also find this appeal to be incompetent and it is hereby struck out. I abide by the Order as to cost.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning eloquently expressed in the judgment just delivered by my learned brother, the Hon. Justice John Inyang Okoro, JSC, to the conclusive effect that the present appeal is incompetent.

Hence, I too hereby strike out the said appeal for incompetence. ​Appeal struck out.

Judgment

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The Respondent’s late father and the Appellant were brothers and sons of late John Akaolisa, who granted to the Appellant a residential portion of land around 1960. The Appellant erected his residential house thereat. The Respondent’s late father, Patrick Akaolisa inherited his own portion from John Akaolisa as the 1st son.

The Respondent, since the death of Patrick Akaolisa, has been residing exclusively with his family on the said land until when the Appellant, because the Respondent relocated to Aba in Abia State, encroached into the compound of the Respondent and pulled down the fence, a building and cut down orange and mango trees with fruits thereon. This caused the suit to be filed at the trial Court by the Respondent as Plaintiff.

​The trial Court awarded the sum of N300,000.00 as special damages and N200,000.00 as general damages to the Respondent as Plaintiff, for trespass. On appeal by the Appellant, the lower Court set aside the award of special damages of N300,000.00 and increased the award of general damages to N500,000.00. This is the basis of the present appeal before this Honourable Court. The Appellant formulated 2 issues for determination as follows: 1.

Whether the Justices of the Court of Appeal were right in their decision to increase the sum of N200,000 awarded by the trial Court as general damages to N500,000.00 in favour of the plaintiff when there was no appeal against the said award by the Plaintiff? 2. Whether the Justices of the Court of Appeal were right to resolve the issue of adequacy of the amount awarded as general damages raised suo motu by them without hearing the parties particularly the Appellant?

The Respondent’s Counsel on the other hand formulated a lone issue for the determination of this appeal thus: Whether the Court of Appeal had the powers to increase the amount awarded to the Respondent as general damages by the trial Court.

The Respondent’s lone issue has appositely and comprehensively captured the issue for determination in this appeal and shall be used.

​It is the submission of the learned Counsel to the Appellant that since the Respondent did not appeal against the award of damages, it is settled law that the Court cannot grant him more than his relief. He relied on METAL CONSTRUCTION (W/A) LTD V. ABODERIN (1998) 8 NWLR (PT.563) 541. Thus, that the Court below was wrong to increase the sum of N200,000.00 awarded as general damages to the Respondent by the trial Court to N500,000.00 without an appeal by the Respondent.

Similarly, he submitted that the increase of the amount awarded as general damages cannot be a substitute for the failed claim of special damage. He cited in support I.B.B. IND. LTD & ORS V. MUTUNC COMPANY (NIG) LTD (2012) 6 NWLR (PT. 1297) AT 498.

Furthermore, it was submitted that for the lower Court to raise suo motu the issue of the adequacy of the award of N200,000.00 and increase same to N500,000.00 without giving the Appellant the opportunity to be heard is against decided authorities. He relied on OSHODI V. EYIFUNMI (2000) 13 NWLR (PT.684) 298. He therefore urged this Court to allow the appeal and set aside the award.

​The Respondent’s learned Counsel on the other hand quoting the lower Court’s judgment and reasoning for the increase in general damages relied on Section 15 of the Court of Appeal Act, Order 4 Rules 3 and 4 and Order 6 Rule 5 of the Court of Appeal Rules, 2011, as the basis for the increase of the award of general damages by the lower Court. He equally relied on EMIRI V. IMIEYEH (1999) 4 NWLR (PT.599) RATIO 7.

On the increase of the award of general damages by the lower Court, he submitted that the primary object of an award of damages is to compensate a party for the harm done to him and it is at the discretion of the Court. He relied on BRITISH AIRWAYS V. ATOYEBI (2014) 13 NWLR (PT. 1424) AT 286. He finally submitted that the lower Court acted within its statutory power and was justified to have increased the general damages awarded to the Respondent to N500,000.00, and has prayed this Court to dismiss the appeal for lacking in merit.

In the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of. Unlike special damages, it is generally incapable of exact calculation. See Per OGUNBIYI, JSC, ELF PETROLEUM V.

UMAH & ORS (2018) LPELR-43600(SC) (PP.27-28, PARAS. C-A). Similarly, where a party is demanding for or claiming general damages, the Court awards same at its discretion. See AKINTERINWA V. OLADUNJOYE (2000) 1 NWLR (PT 659) 93 AT 115. Per Chukwunweike Idigbe, JSC, in WAHABI V. OMONUWA (1976) LPELR-3469(SC) (P. 18, PAR-AS. B-D) stated also that the quantification of general damages in terms of money is a matter for the Court.

The appeal of the Appellant is predicated majorly on the reasoned decision of the lower Court, when after dismissing the claim of special damages by the Respondent, held at page 207 of the record in its judgment thus: “I have dispassionately and deeply considered the circumstances and facts of this case, and I feel that the award of N200,000.00 as general damages to the respondent is ridiculously too low and erroneous. Therefore, I am impelled to intervene and increase it.

Hence, the sum of N500,000.00 (Five hundred thousand Naira) only is awarded as general damages to the respondent against the appellant.”

​It is clear from the formulated issues of the Appellant that his appeal is anchored on nothing more than an exercise of the lower Court’s discretion to award general damages. Similarly, by the judgment of the lower Court, it is deducible that the lower Court judicially, judiciously, reasonably and justifiably exercised this discretion to award the general damages of N500,000.00 to the Respondent.

The Appellant has also queried the exercise of the lower Court’s discretion to award general damages of N500,000.00 to the Respondent suo motu or without calling for the attention or contribution of the parties.

A judicial discretion is the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law. In other words, it is in Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. To make such exercise of discretion look judicial and judicious, it has to be based on prudence, rationality, sagacity, astuteness, considerateness and reasonableness. See Per Ibrahim Tanko Muhammad, JSC, in AKINYEMI V. ODU’A INVESTMENT CO. LTD (2012) LPELR-8270(SC) (PP. 32-33, PARAS. F-B).

In the same case above, page 32, paragraphs B-F, he explicated further that: “Discretion,” they say, “knows no bound.” In its general usage, it is that freedom or power to decide what should be done in a particular situation… the general meaning of the word to include: “analysis, appraisal, assessment, choice, consideration, contemplation, decision, determination, discrimination, distinction, designation, election, evaluation, examination, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, selection, self determination, suffrage, etc.”

​Except on grounds of law, an appellate Court will not reverse a discretionary order of a trial Court merely because it would have exercised the discretion differently. But, if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised, in that due weight was not given to relevant consideration, the order may be reversed. Thus, the guiding principle is that discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials.

Nevertheless, an appellate Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion:- a. Where the discretion was exercised based on wrong in sufficient material or b. Where no weight or insufficient weight was given to relevant consideration or c. Where the Tribunal acted under misconception of law or under misapprehension of fact and d. In all other cases where it is in the interest of justice to interfere. See Per MUHAMMAD, JSC, in AKINYEMI V. ODU’A INVESTMENT CO. LTD (2012) LPELR-8270(SC) (PP. 33-35, PARAS. B-D).

By the excerpted reasoning and decision of the lower Court above, where it dispassionately and deeply considered and assessed the circumstances of the present appeal, it is my firm opinion that an appellate Court has that unfettered power and discretion to assess general damages and to award same suo motu without calling on the parties to address it. I lean on the decision of Per Nnaemeka-Agu, JSC, in ONWUKA & ANOR V. OMOGUI (1992) LPELR-2719(SC) (PP. 49-50, PARAS.

G-D), wherein he held: “The question whether the Court of Appeal itself had the power to have assessed and awarded the damages claimed ought also to have been answered in the affirmative. Section 16 of the Court of Appeal Act, 1976, as indeed Section 22 of the Supreme Court Act, 1960, has given to the Court full jurisdiction and powers over such matters as if it were a Court of trial. As such is the position, there is now no need for this Court or the Court of Appeal to look at an issue of damages as if it were a sacred cow reserved for the Court of trial…” See also ONWUKA & ANOR V.

OMOGUI (1992) LPELR- 2719(SC) (PP. 34-36, PARAS. G-A). ​I make bold to state that the assessment and evaluation of general damages, being a discretionary judicial act or exercise, does not need to be appealed against, provided already it is before the Court to look into it. When award of damages is involved, it is both the case and facts of the Appellant and the Respondent that are considered and not only that of the Appellant. Thus, to insist that there must be an appeal on it before it is considered will work out injustice and will be tangential and one-sided.

For fairness and justice, the Court must look into the appeal of the Appellant and also the case of the Respondent at the lower Court in assessing and awarding damages, Otherwise, the Appellant, who has appealed, will always be right, if the Respondent’s case will not also be considered, assessed and evaluated until there is an appeal on it.

This appeal is therefore grossly unmeritorious, wasteful and fails. It is hereby dismissed.

​Apart from the fact that this appeal is a concurrent decision on damages of the two Courts below, the Appellant intrepidly went ahead to appeal to this Apex Court. While the Appellant got judgment against him at the trial Court in the sum of N300,000 for special damages, N200,000 as general damages and N30,000 as costs, totaling N530,000.00, he appealed to the lower Court and got general damages against him in the sum of N500,000 and cost at N50,000, totaling N550,000.00. Yet, he unacceptably approached the Apex Court. I greatly wonder what he came to seek for in the Supreme Court?

How much has he spent in pursuing and prosecuting this paltry and suboptimal appeal and the time involved? How much time and chance has he blocked for other more important and contentious appeals? How much is he expecting to get from the judgment of this Court? It is glaring that he is not far from frustrating the Respondent and to choke the fast delivery and course of justice. Of course, this is the practice of many, that instead or accepting a defeat, they fight bloody and irrationally for no cause instead of accepting an olive branch.

Consequently, I award the cost of N500,000 against the Appellant.

MUSA DATTIJO MUHAMMAD, J.S.C.: I have read the lead judgment of my lord UWANI MUSA ABBA AJI JSC just delivered. I am in entire agreement with the reasoning and conclusion in the judgment that the appeal, being lacking in merit, be dismissed.

The facts that brought about the appeal are lucidly expressed in the lead judgment. I rely on the facts as so captured to make, by way of emphasis alone, this brief contribution.

The lower Court has revisited the general damages awarded in favour of the Respondent against the Appellant thus the instant appeal. Whereas the Appellant contends that the lower Court lacks the jurisdiction of varying the general damages the trial Court ordered, the Respondent, to the contrary, submits otherwise.

The lower Court’s powers as donated by law, learned Respondent counsel rightly argues, is discretionary and available facts on record does not warrant interference with the Court’s judicious and judicial exercise of its discretion.

Section 15 of the Court of Appeal Act by virtue of which the lower interfered with the trial Court’s award of general damages reads:- “The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks for the determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by the Court of competent jurisdiction.” On the seemingly endless occasions this Court interpreted the section it held that it applies where certain conditions are met.

These are:- (a) That the lower Court as the trial Court have jurisdiction in the matter before the appellate Court. (b) That the real issue raised by the claim of the Appellant at the lower Court or trial Court is capable of being distilled from the grounds of appeal. (c) That all necessary materials are available to the Court for consideration. (d) That the need for expeditious disposal of the case or suit to meet the end of justice must be apparent; and (e) That injustice or hardship will follow if the case is remitted to the Court below.

Once these conditions are manifest, it becomes necessary for the lower Court to interfere with the trial Court’s decision. See AG KWARA STATE & ANOR V. LAWAL & ORS (2017) LPELR-4234 (SC), YUSUF V. FRN (2017) LPELR-43830 (SC) and APC & ORS V. KARFI & ORS (2017) LPELR-47024 (SC).

In the case at hand, the three conditions have been met. The lower Court’s exercise of its discretion in the review of the general damages granted by the lower Court is therefore unassailable. Parties have testified at trial to the facts on which basis the lower Court, having perused the record, concluded on the need to reconsider the award. The Appellant cannot contend that he has not been heard on the facts which, from the record, the lower Court as empowered by law, reconsidered and made its inferences.

I am further unable to discern what miscarriage of justice the decision appealed against occasioned to warrant allowing the appeal.

For the foregoing and more so the detailed reasons contained in the lead judgment I hereby dismiss the unmeritorious appeal.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading before now, the draft of the leading judgment which my Lord, Abba Aji, JSC, just delivered. I agree with His Lordship that, being unmeritorious, this appeal should be dismissed.

This contribution is limited to the question whether, in the instant case, the Court of Appeal, [hereinafter referred to as “the lower Court”] had the power to assess general damages and to award same without calling on the parties to address it.

The rule has always been that a Court is not entitled to raise and determine an issue suo motu without hearing from the parties, Odiase v Agho (1972) 3 SC 71; Adegoke v Adibi (1992) 5 NWLR (pt 242) 410; Atanda v Akanmi (1974) 3 SC 109; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. A violation of this canon is, indeed, an invasion of the right to fair hearing, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566.

It has, actually, been elevated to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207; Wilson v Wilson (1969) ALR 191. ​However, the lower Court cannot be rightly accused of raising the issue of damages suo motu. True, indeed, Section 15 of the Court of Appeal Act and Section 22 of the Supreme Court Act donated these Courts, the Court of Appeal and this Court, respectively, with the jurisdiction and powers over such matters, like general damages, as if they were the trial Court, Ediagbonya v Dumez Nig.

Ltd [1986] 3 NWLR (pt 31) 753; Soleh Boneh (Nig) Ltd v Ayodele and Anor [1989] 1 NWLR (pt 99) 549, 559. There is, therefore, nothing sacrosanct about general damages which only the trial Court can deal with. The correct approach, therefore, ought to be that unless an issue of the credibility of witnesses as to damages arises in the proceedings, the appellate Court, on entering or affirming a judgment in favour of the plaintiff, has the power to assess and award damages to which he is entitled.

The English Law position, per Denning, L.J, in Ward v James (1966) 1 QB 273, 301 – 303, adopted by this Court in Onwuka and Anor v Omogui [1992] 3 NWLR (pt 230) 393; (1992) LPELR -2719 (SC) 49-50; G-D, is still good law.

It is for these reasons which I adopt as part of my reasons in this contribution, and the more elaborate, reasons in the leading judgment that I, too, shall enter an order dismissing this appeal. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (DISSENTING): I have had the privilege to read before now, a draft of the lead judgment of the majority decision of the Court just delivered by my learned brother HON. JUSTICE UWANI MUSA ABBA AJI JSC. With the greatest respect and humility, I have to depart from the reasoning and conclusions contained therein.

This is a case of trespass to land between relatives. The Appellant who is the uncle of the Respondent encroached on a portion of the Respondent’s land while he had relocated with his family to another State. The Appellant pulled down the Respondent’s fence, building, cut down Orange and Mango trees. The Respondent sued the Appellant for trespass and damages. At the trial Court, judgment was in favour of the Respondent who got reliefs of Three Hundred Thousand Naira (N300,000.00) as special damages and Two Hundred Thousand (N200,000.00) as general damages.

At the Court below, the Appellant appealed against the judgment of the trial Court. The Court below held that special damages was not pleaded or proved and set aside the award of special damages. The Court below increased the award of general damages to Five Hundred Thousand Naira (N500,000.00). The Appellant being further dissatisfied has appealed to this Court, solely on the basis of the increase in general damages to the Respondent.

Thus the sole issue in contention in this appeal is whether in the circumstances of this case, the Court below had the power to increase the amount awarded to the Respondent as general damages by the trial Court.

The Appellant’s counsel argued that the Court below was wrong to have granted the Respondent more than what he was given by the trial Court since he didn’t appeal against the award of damages. Counsel submitted that the increase of the general damages to N500,000.00 cannot be substituted for the failed claim of special damages. Counsel cited Metal Construction (W/A) Ltd. v. Aboderin (1998) 8 NWLR (Pt. 563) Pg. 541; I.B.B. IND Ltd. & Ors v. Mutunc Company (Nig.) Ltd. (2012) 6 NWLR (Pt. 1297) pg. 498.

Appellant’s counsel insisted that the lower Court was in error to have raised suo motu the issue of increase of general damages to N500,000.00 without giving the Appellant a right of hearing on the issue. Counsel cited Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) Pg. 289.

​In reply, the Respondent’s learned Counsel argued that the ratio for the increased award of damages by the Court below is the provision of Section 15 of the Court of Appeal Act, Order 4 Rules 3 and 4 and Order 6 Rule 5 of the Court of Appeal Rules, 2011 and therefore the Court below acted within its statutory power. Counsel citedEmiri v. Imieyeh (1999) 4 NWLR (Pt. 559) Ratio 7.

Counsel submitted that the award of damages is at the discretion of the Court and it is to compensate for the harm done to the Respondent. Counsel cited British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) Pg. 286.

OPINION I have dispassionately and deeply considered the circumstance and facts of this, and I feel that the award of N200,000.00 as general damages to the Respondent is ridiculously too low and erroneous. Therefore, I am impelled to intervene and increase it. Hence, the sum of N500,000.00 (Five hundred thousand Naira) only is awarded as general damages to the Respondent against the Appellant. [This appeal is predicated on the increase in the award of general damages by the lower Court suo motu.

A Court is said to raise on issue suo motu when neither of the parties raised it in the pleading as a ground of appeal and as an issue before the Appellate Court.]

It is trite that a Court has power to raise an issue suo motu in respect of any matter before it, however the power of the Court must be exercised judicially in respect of matters relevant and necessary for the determination of the dispute before it. See Sunday Gbagbarigha v. Mr. Adekumo Toruemi & Anor. (2012) 12 SCNJ Pg. 140; Blessing Toyin Omokuwajo v. FRN (2013) 3 SCNJ Pg. 384 ACB Ltd v. Crestline Services Ltd (1991) 6 NWLR Pt. 197, Pg. 301.

In this instant case, the Respondent at the Court below did not cross appeal against the award of general damages or complain against the award of the general damage as being insufficient. This simply means the issue of increase of general damages was not before the Court below, that is, the jurisdiction of the Court below was not activated in respect of that issue. ​Also, the Court below cannot raise the issue of increase in general damages suo motu without giving the parties opportunity to be heard on the issue.

If the Respondent had addressed the issue in its brief, the Appellant would have filed a reply on it. The parties did not address the Court below on the issue and the Court below never sought their opinion before deciding on the issue it raised suo motu. The Court is without power to raise and consider novel issues without hearing the parties. See Okoye v. Commissioner of Police (2015) 17 NWLR Pt. 1488 Pg. 276;Wagbatsoma v. FRN (2018) 8 NWLR Pt. 1621 Pg.199; Shasi v. Anor v. Smith & Ors (2009) 18 NWLR Pt. 1173 Pg. 330.

Thus, the Court cannot go outside the case made by the parties without allowing the parties an opportunity to be heard. When the Court raises an issue suo motu without parties addressing the Court on it, such a procedure is a fundamental flaw in adjudication. Such a proceeding is also a breach of the fundamental rights of parties to fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and should be nullified. Kotoye vs C.B.N. (1989) 1 NWLR (Pt.98) Pg. 419 at 488 C-D; A.G. Rivers State v. Ude & Ors. (2006) 17 NWLR (Pt.1008) Pg. 436.

The two cardinal principles of natural justice are “audi altarem partem” which means the Court must hear both sides and “nemo judex in causa sua” – you cannot be a judge in your own cause. The procedure adopted by the Court below has done violence to the rule “audi altarem partem” – in that the opinions of the parties were not sought which meant lack of fair hearing. In recent Supreme Court’s decision in Mr. Smith Collins v. DHL International Nigeria Limited Appeal No.

SC.629/2017 delivered 7th May, 2021 which has similar facts wherein the Court below also raised an issue suo muto against the quantum of general damages and determined it without allowing the parties address the Court on it, this Court held coram: Dattijo Muhammad, Nweze, Ogunwumiju, Abdu Aboki with Tijjani Abubakar (JJSC) reading the lead judgment as follows: “The law is settled that a Court is not permitted to raise and issue suo motu and resolve it without hearing from the parties.

In the instant case, the decision of the lower Court interfering with the damages awarded by the trial Court was not properly canvassed and argued before the lower Court, the decision obviously overreached the Appellant. It was wrong for the lower Court to take such decision without granting the Appellant the opportunity to give his input. The Appellate jurisdiction of the lower Court is to hear and determine appeals from the High Court or other bodies as provided by law.

A finding or decision of the trial Court can only be set aside by the appellate Court where there is proper appeal challenging same. In the instant appeal since the issue of damages is not before the lower Court, the lower Court has no jurisdiction to embark on logical deduction. The finding of the lower Court is therefore perverse.

A Court has no right to ask question on its own and provide answer without hearing the parties no matter how simple such a question may appear” (underlining mine) It is apparent from this issue that for the jurisdiction of the Court to be activated on a particular issue, the issue must be before the Court. This was also the decision in State v. Kapine & Anor (2019) LPELR-49511 SC Per My Learned brother Abba Aji, JSC at Pg. 22-26, paras.

F-E as follows: “…The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises an issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard.

While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of its decision. This principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not confined mainly to issues of fact. Justice is for all the parties and all must be given fair hearing. For the above reasons and those contained in the judgment of my learned brother, M. D.

Muhammad, JSC, I too, hereby come to the conclusion that the appeal ought to be allowed for retrial by another panel of the lower Court.”

In Akinyemi v. Odu’a Investment Co. Ltd (2012) LPELR- 8270 (SC) Pg. 33-35, Paras B-D this Court considered whether the Court of Appeal was right to set aside the trial Court’s discretion in awarding the pre and post judgment interests. The Supreme Court’s decision in line with what happened at the Court of Appeal reads as follows: “I agree with the Court below’s observation as above. It is true that the trial Court granted the plaintiff’s/appellant’s claim as per paragraph 21 of the statement of claim. Exhibit L portrays the professional scale.

This exhibit according to the findings of the lower Court did not form the basis of the contract between the parties (p. 151 of the record). There is also a finding that the trial Judge found that Exhibit B was the offer and Exh. C a counter offer. The appellant performed the contract bound by his acceptance in Exh. C. Where the trial Court went wrong is the erroneous view held by it on the contents of Exh. C by practically misconstruing the document and that payment should be made based on the computation of Exh.

L while there is evidence that other consultants were paid not strictly guided by Exh. L. The learned trial Judge, thus, drew a wrong conclusion from the evidence of the parties. I am in agreement with the Court below that any discretion exercised in this case based on the computation of Exh. L and interpretation of Exh.

C will obviously amount to a wrongful exercise of discretion which should not be allowed to stand in the interest of justice” This Court went further “…designation, determination, discrimination, distinction, election, evaluation, examination, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, selection, self-determination, suffrage etc.” A judicial discretion however, is the exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law.

In other words, it is a Court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. To make such a discretion look judicial and judicious it has to be based on prudence, rationality, sagacity, astuteness, considerateness and reasonableness. The principles established by our Courts on the attitude of appellate Courts towards the exercise of judicial discretion have been enunciated in several cases such as the case of University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143 where this Court held as follows: “A declaratory judgment is discretionary.

It is a form of judgment which should be granted only in circumstances in which the Court is of the opinion that the party seeking it is, when all the facts are taken into account fully entitled to the exercise of the Court’s discretion in his favour.”See further: Onuoha v. Okafor (1985) 2 SCNLR 244; Ekwurumm v. Ifejika (1960) SCNLR 320; Egbunike v. Muonweokwu (1962) 1 SCNLR 97; The settled law and practice is that except on grounds of law an appellate Court will not reverse a discretionary order of a trial Court merely because it would have exercised the discretion differently.

But, if on other grounds, the order will result in injustice being done or if the discretion was wrongly exercised in that due weight was not given to relevant consideration, the order may be reversed. See: Saffieddine v. COP (1965) 1 All NLR 54, Enekebe v. Enekebe (1964) 1 All NLR, 102; Awani v. Ereiuwa II (1976) 11 SC 307; Odusote v. Odusote (1971) 1 All NLR 219. Thus, the guiding principle is that discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials, See. University of Lagos & Anor v.

Aigoro (supra).” It is clear from the decision of this Court in Akinyemi v. Odu’a Investment Co. Ltd (2012) LPELR-8270 (SC) Pg. 33-35, Paras B-D that the Court which exercised its discretion in granting pre and post judgment interest was the trial Court and not the Appellate Court. Also, the exercise of the discretion of the trial Court was what was in contention before the Court of Appeal. Thus, the jurisdiction of the Court of Appeal was activated by the parties.

The power of the Court of Appeal to do what the trial Court could do but failed to do is provided in Section 15 of the Court of Appeal Act. However, that power can only be exercised when it is asked to do so. Finally, the issue in Akinyemi v.

Odu’a Investment (supra) was not whether the Court below could exercise its discretion suo motu on an issue not before it but it was whether the trial Court which had unfettered discretion rightly exercised its discretion in the award of pre and post judgment interest. ​It is important to re-iterate that the position of the law is that only the trial Court has unfettered discretion in the award of damages. The appellate Court’s interference in the award of damages must be called for. The Court is under a duty not to give over and above what a party has claimed.

Whilst a Court may have jurisdiction to make monetary award less than what a party claims, the Court lacks competence to award more than what is in the claim. See Esso Petroleum Co. Ltd v. Southport Corporation (1956) AC 218; Ebba v. Ogodo (1984) 1 SCNLR Pg. 372; BIMT Ventures Ltd v. Linpark Nig. Ltd (2009) LPELR-8731 (CA); Bellview Airlines Ltd. v. Aluminium City (2007) LPELR- 8465 (CA). In IfeanyiChukwu Osundu Co. Ltd v.

Joseph Akhigbe (1999) 11 NWLR Pt. 625 Pg. 1, this Court held that an appellate Court will not make it its business to interfere with general damages awarded by the trial Court unless it is satisfied that the trial Judge acted, in the award of such damages, upon some wrong principle or that the amount awarded was so large or so small as to make it a completely erroneous assessment of the damages. The jurisdiction of the Court below was activated in Osundu v. Akhigbe (supra) because both parties appealed and cross-appealed at the Court below on the issue of damages awarded by the trial Court.

In Acme Builders Ltd v.

Kaduna State Water Board & Anor (1999) 2 NWLR Pt. 590 Pg. 288 this Court held that where a trial Judge in assessing general damages proceeds upon a wrong principle or on no principle of law and makes an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable in comparison with the greatest loss that would possibly flow from the said breach of contract and without stating whether the amount awarded is for loss of business or loss of profit or anticipated profits and the measure or basis of its assessment, such an award would not be allowed to stand.

However, the jurisdiction of the Court below was activated because the part of the decision of the trial Court appealed against was general damages for breach of contract, loss of profit as well as claims for interests. In Onwuka & Anor v. Omogui (1992) LPELR-2719 (SC) Pgs. 49-50, Paras G-D. The fact that led to the issue of invoking the powers of the appellate Court to look into damages was that the trial Court did not assess damages at all at trial because the trial Court found that the tort of negligence was not successfully established.

The Court below found the appeal had merit and ordered that the case be returned to the trial Court to be heard de novo to assess the quantum of damages. The Supreme Court held that the Court below ought to have exercised its powers pursuant to Section 15 of the Court of Appeal Act to assess and award damages, having found the Appellant’s case was successful and he was entitled to damages.

This Court activated its power as provided in Section 22 of the Supreme Court Act to award damages since it agreed that the tort was established, the Appellant was entitled to damages and the Court below should have exercised its powers under Section 15 of the Court of Appeal Act. There is no doubt that Section 15 of the Court of Appeal Act and Section 22 of the Supreme Court Act each empowers these Appellate Courts to exercise their jurisdiction as if they were the Court of first instance.

In most cases, however, an appellate Court will only be confined strictly to the reliefs sought in the claim. See Osuji v. Ekeocha (2009) 16 NWLR Pt. 1166 Pg. 81; Ativie v. Kabelmetal Nig. Ltd (2008) 10 NWLR Pt.1095 Pg. 39; Cappa & D’alberto Nig. Plc v. NDIC (2021) LPELR- 53379 (SC)Pgs. 6-7, paras. F-A. Thus, the powers in Section 15 and 22 of the Court of Appeal and Supreme Court Acts respectively can only be activated when the relief is sought or claimed. The Court is under a duty not to give more than what is in the claim. The Nigeria Air Force v.

Shekete (2002) 12 SCNJ Pg.35 at 52-53; Ezeonwu v. Onyechi & Ors (1996) 3 NWLR Pt. 438 Pg. 499; Osuji v. Ekeocha (supra). The only exception is where consequential reliefs not specifically stated but flowing from the outcome of litigation are granted through consequential orders which ought to have been granted by the trial Court can be granted by the appellate Court. In Odofin v. Agu (1992) 3 NWLR Pt. 229, Pg. 350 at 372, this Court restated this position of the law in the following terms: “Now a consequential order is one giving effect to a judgment or order to which it is consequential.

See Obayagbona v. Obazee (1970) 5 SC. 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made” ​My lord, an appeal is not at large. The general powers of the Court of appeal and the Supreme Court under Section 15 and Section 22 respectively cannot be exercised at random. See Rt. Ihedioha & Anor v. Owelle Rochas Anayo Okorocha & Ors (2015). See SCNJ 87, Comapgnie Generale De Geographsique (NIGLT) CGG Nig. Ltd V. Moses Aminu (2015) 3 SCNJ 338; Etsako Est L.G. V. Isa Oshiobugie Christopher (2014) 6 SCNJ 538.

This Court has always maintained that Section 15 of the Court of Appeal with power to enter a verdict which on the evidence would have been the correct verdict the trial Court ought to have entered. It empowers this Court to evaluate evidence which the trial Court failed to consider and make correct findings. It enables the Court of Appeal could have made after it allows an appeal. No doubt Section 15 enables the Court of Appeal to consider any issue arising from a decision notwithstanding that there is no appeal against some part of it if the parties had extensively and fully argued upon it.

Dantata & Anor V. Mouktar Mohammed (2000) 5 SCNJ 17, Nnadi Chikere & Ors V. George Okegbe & Ors (2000) 7 SCNJ 128. ​As I explained earlier there is a difference between the discretion exercised by the trial Court and that which can be exercised by an appellate Court while the trial Court had unfettered discretion, the appellate Court cannot interfere with the discretion exercise by the trial Court unless called upon to do so. Even where it decides to do so in the interest of justice, it must hear both parties on the issue.

In the instance of this case, the Respondent did not make an appeal nor were reliefs sought to set aside or review the quantum of damages to which the consequential prayers granted to him can be attached.

In the circumstances, this appeal has merit and the prayer of the Appellant urging this Court to set aside the decision of the Court below on the increase of general damages is hereby granted by me. Consequently, the orders relating to the increase of general damages is set aside. Appeal allowed. No order as to costs.

ADAMU JAURO, J.S.C. (DISSENTING): I had the advantage of reading in draft, the lead judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered. I however wish to respectfully differ from the reasoning and conclusion contained in the judgment. I shall therefore humbly proceed to state my views as follows: The Respondent as Plaintiff filed a Writ of Summons and Statement of Claim in the trial Court against the Appellant as Defendant and sought the following reliefs: a.

“N10,000,000.00 (Ten million Naira being special and general damages for trespass committed in the Plaintiff’s compound which is situate and being at Ndiojukwu Village, Uruagu, Nnewi. Particulars of special damage i. Cost of bags of cement at N1,700.00 per bag – N510,000.00 ii. Cost of 50 lengths of 1/2 inch iron rod at N2,500.00 per length – N125,000.00 iii. Cost of 5 trips of stone at N20,000.00 per trip – N100,000.00 iv. Cost of 10 trips of sand at N5,000.00 per trip – N50,000.00 v. Cost of 10 bundles of zinc at N12,000.00 per bundle – N120,000.00 vi.

Cost of labour nails, polines, planks, binding wire, e.t.c – N150,000.00 vii. Value of orange fruits from the uprooted orange tree for at least ten years at N20,000.00 per year – N200,000.00 viii. Value of mango fruits from the uprooted mango tree for at least ten years at N10,000.00 per year – N100,000.00 TOTAL – N1,355,000.00 GENERAL DAMAGES – N8,645,00.00 GRAND TOTAL – N10,000,000.00 b. PERPETUAL INJUNCTION restraining the Defendant, his servants, agents and/or privies from trespass or further trespass into the said land. c.

ANY OTHER relief the honourable Court may give in the interest of justice.”

Parties exchanged pleadings and the matter proceeded to trial. Upon the close of trial and final addresses by counsel for the parties, the learned trial Judge delivered judgment in favour of the Respondent and ordered as follows: a. “The defendant shall pay to the plaintiff the sum of N300,000.00 (Three Hundred Thousand Naira) being the value of the orange and mango trees uprooted in the plaintiff’s compound, on the items of special damages which have been strictly proved. b.

The sum of N200,000.00 (Two Hundred Thousand Naira) is hereby awarded as general damages in favour of the plaintiff and against the defendant. c. Perpetual injunction is hereby issued against the defendant, his servants, agents and/or privies from trespass or further trespass into the plaintiffs compound which is the subject matter of this suit. d. The defendant shall pay to the plaintiff costs assessed and fixed in the sum of N30,000.00 (Thirty Thousand Naira).”

The Appellant appealed to the Court below and in its judgment delivered on 30th September, 2014, the Court below allowed the appeal in part. In allowing the appeal in part, the Court below set aside the award of special damages granted by the trial Court in favour of the Respondent but increased the sum of N200,000 (Two hundred thousand Naira) awarded as general damages to N500,000 (Five hundred thousand Naira).

It is therefore against the increment of the award of general damages that the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on 11th February, 2015.

The grounds of appeal albeit without their particulars are hereunder reproduced as follows: – “GROUND ONE The Justices of the Court of Appeal erred when it granted to the Respondent a relief which he did not ask or pray by increasing the amount awarded as general damages in favour of the plaintiff from N200,000.00 to N500,000.00 GROUND TWO<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The Justices of the Court of Appeal erred in law by raising the issue of the inadequacy of the amount awarded in favour of the Respondent (Plaintiff) as general damages and resolving it without inviting and hearing the parties on it.”

Flowing from the two grounds of appeal as reproduced above, CHIEF G. OSELOKA OSUIGWE, learned counsel for the Appellant formulated two issues for the determination of the appeal at paragraph 3 of the Appellant’s brief.

The issues are as follows: a) “Whether the Justices of the Court of Appeal were right in their decision to increase the sum of N200,000 awarded by the trial Court as general damages to N500,000 in favour of the Plaintiff when there was no appeal against the said award by the Plaintiff? b) Whether the Justices of the Court of Appeal were right to resolve the issue of adequacy of the amount awarded as general damages raised suo motu by them without hearing the parties, particularly the Appellant?”

​Arguing issue no. 1, counsel submitted that the Respondent stated in his brief before the Court below that he was satisfied with the award of N200,000 as general damages granted by the trial Court.

That the Respondent had the option of filing a cross-appeal before the Court below if he was dissatisfied with the quantum of the award. It was his further submission that a decision of a Court not appealed against remains binding on the parties. Counsel therefore contended that neither a trial Court nor an appellate Court can grant a relief not sought by a party or grant more than a party claims. Reliance was placed on METAL CONSTRUCTION (W/A) LTD V. ABODERIN (1998) 8 NWLR (PT. 563) 541; EKPENYONG & ORS V. NYONG & ORS (1975) 2 SC (REPRINT) 65; OBIOMA V. OLOMU & ORS (1978) 3 SC 1; ABANG V.

EFFIOM (1976) 1 SC 17; EJOWHOMU V. EDOK-ETER MANDILAS LTD (1986) 5 NWLR (PT. 390) 1.

Counsel cited the case of I.B.B. IND. LTD V. MUTUNCI COMPANY (NIG) LTD (2012) 6 NWLR (PT. 1297) 487 and submitted that increase in the amount awarded as general damages cannot be a substitute for the failed claim for special damages. He urged this Court to resolve the issue in favour of the Appellant.

​On issue no. 2, learned counsel submitted that by raising suo motu the issue of inadequacy of the amount awarded as general damages and resolving same against the Appellant, the lower Court breached the Appellant’s right to fair hearing. He submitted that the issue not being one that arose from the appeal before the Court, the lower Court ought to have called on the parties to address it in respect thereof and that the failure to do so occasioned a miscarriage of justice. The cases of OBUMSELI & ANOR V. UWAKWE (2009) 28 WRN 147; UNIVERSITY OF CALABAR V.

DR ESSIEN (1996) 12 SCNJ 304; OLATUNJI V. ADISA (1995) 2 NWLR (PT. 376) 167; ORO V. FALADE (1995) 5 NWLR (PT. 396) 385; OSHODI V. EYIFUNMI (2001) 11 WRN 86; OJE V. BABALOLA (1991) 4 NWLR (PT. 185) 250; IRIRI V. ERHURHOBARA (1991) 3 SCNJ 12; APITRA V. LILGC (2006) QQ ALL FWLR (PT. 3280 755 cited in support.

In final analysis, counsel urged this Court to set aside the increase of the sum of N200,000.00 awarded as general damages by the trial Court to N500,000.00 by the Court below.

IBE OBETA, ESQ., counsel for the Respondent’s on his part formulated a sole issue for the determination of this appeal to wit: “Whether the Court of Appeal had the powers to increase the amount awarded to the Respondent as general damages by the trial Court.”

​On the sole issue, counsel for the Respondent submitted that by virtue of Section 15 of the Court of Appeal Act, Order 4 Rules 3 and 4 as well as Order 6 Rule 5 of the Court of Appeal Rules, 2011, the lower Court while entertaining an appeal before it, has the power like a trial Court to draw inferences of facts from the evidence adduced by the parties and to give and make any order(s) as the justice of the case demands. He relied on the cases of EMIRI V. IMIEYEH (1999) 4 NWLR (PT. 599) 442; ADO IBRAHIM & CO LTD V. BCC LTD (2007) 15 NWLR (PT. 1058) 564; CAPPA & D’ALBERTO LTD V.

AKNTILO (2003) 9 NWLR (PT. 824) 49.

He cited the case of BRITISH AIRWAYS V. ATOYEBI (2014) 13 NWLR (PT. 1424) 253 and submitted that general damages need not be specifically pleaded and that same arises by inference of law. That the Court below having agreed with the trial Court that the Appellant committed serious acts of trespass was thus within its powers to increase the sum granted. Relying on the cases of CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (PT. 1238) 512; A.C.B. LTD V.

B.B APUGO (2001) 5 NWLR (PT. 707) 483, counsel submitted that an appellate Court, though always reluctant to interfere with the award of damages, will be compelled to do so in the following circumstances: (a) where the Court acted under wrong principles of law; (b) where the Court acted in disregard of applicable principles of law; (c) where the Court acted in misapprehension of facts; (d) where the Court took into consideration irrelevant matters and disregarded relevant matters while considering the award; (e) where injustice will result if the appellate Court does not act; (f) where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of damages.

Learned counsel further submitted that the sum of N200,000.00 granted by the trial Court was grossly low and would have been inadequate to put the Respondent back in the position he was in before the Appellant went into his compound and demolished a building, fence and cut down economic trees.

​In response to the contention of the Appellant that the lower Court granted a relief not asked for because the Respondent did not to file a cross-appeal, counsel submitted that Order 4 Rule 4 of the Court of Appeal Rules, 2011 makes it unnecessary for the Respondent to file a cross-appeal or a Respondent’s Notice before the lower Court can exercise its powers.

On the contention of the Appellant that the lower Court raised and resolved the issue of inadequacy of the sum granted as general damages and therefore breached the Appellant’s right to fair hearing, it was submitted that the lower Court had no need to call for the addresses of counsel as it exercised its powers under Section 15 of the Court of Appeal Act. That in the determination of an appeal, the lower Court has the powers to make use of any fact contained in the record of appeal in reaching its decision. He referred to the cases of ADO IBRAHIM & CO LTD V. BCC LTD (supra); BADEJO V.

MINISTER OF EDUCATION (1996) 9-10 SCNJ 51; IBWA V. PAVEX INTERNATIONAL (2000) 7 NWLR (PT. 663) 105.

On the whole, he urged this Court to resolve both issues in favour of the Respondent and against the Appellant.

RESOLUTION The first issue is predicated on whether the Court below was right in interfering with the award of general damages made in favour of the Respondent by the trial Court in the absence of any cross-appeal activating the Court’s jurisdiction to carry out such appellate exercise.

There is no gainsaying that grievance and dissatisfaction with the judgment of a Court is articulated and conveyed to an appellate Court in ground or grounds of appeal. In other words, grounds of appeal are indexes of an Appellant’s complaints against the judgment of a Court. Accordingly, where there are no grounds of appeal, or there are no properly formulated grounds of appeal, an appellate Court will conclude that there is no appeal before it, because one of the vital pre-conditions that must be met before an appellate Court could entertain the appeal, as required by law, is missing.

See C.C.B. PLC. V. EKPERI (2007) 3 NWLR (PT. 1022) 493 AT 511 PARAS A-B.

In the instant appeal, the Appellant appealed the judgment of the trial Court before the Court below. The Respondent in whose favour the award of N200,000 as general damages was made did not complain against the inadequacy of such award by way of cross-appeal. The purpose of a cross-appeal is to correct an error standing in the way of the Respondent in the main appeal. See ANZAKU V. GOV. NASARAWA STATE (2005) 5 NWLR (PT. 919) 448; BUHARI V. INEC (2008) LPELR-814 (SC); UDOM V. MICHELETTI & SONS LTD (1997) LPELR-3310 (SC); ADERIBIGBE & ANOR V. ABIDOYE (2009) LPELR-140 (SC); AWOSIKA V.

STATE (2018) LPELR-44351 (SC); EZUKWU V. UKACHUKWU & ANOR (2004) LPELR-1217 (SC).

In the absence of such complaint by the Respondent regarding the inadequacy of the amount awarded as general damages, I am of the view that the said award made by the trial Court is unassailable, binding and conclusive.

Setting aside the award of special damages granted by the trial Court is not a latitude for the Court below to unilaterally increase the award of general damages granted to the Respondent in the absence of a complaint articulated via a cross-appeal. By so doing, to me, amounted to crying more than the bereaved. If the Respondent felt aggrieved with the sum granted as general damages, the law demands that he files a notice of cross-appeal challenging the said award.

By not so doing, the Court below as an appellate Court whose jurisdiction could only be validly activated by a notice of appeal, had no business to intermeddle with the adequacy or otherwise of the said award.

​The law has crystalized decades before now that a Court not being a charitable organization cannot award more than what is claimed by a party. This Court cannot therefore allow the grant for a litigant, a relief he did not seek in Court. See AYANBOYE & ORS V. BALOGUN (1990) LPELR-668 (SC); AG FED V. A.I.C. LTD (2000) LPELR-628 (SC); OSUJI V. EKEOCHA (2009) LPELR-2816 (SC); SALUBI V. NWARIAKU (2003) LPELR- 2998 (SC); EYIGEBE V. IYAJI (2013) LPELR-20522 (SC); ILONA V. IDAKWO & ANOR (2003) LPELR-1496 (SC); ALIMS NIGERIA LTD V. UBA (2013) LPELR 19768 (SC); OYEYEMI & ORS V.

OWOEYE & ANOR (2017) LPELR-41903 (SC).

The Court below therefore acted without jurisdiction when it increased the award of general damages made in favour of the Respondent by the trial Court in the absence of a notice of cross appeal filed by the Respondent.

​I am also of the view that calling the parties to come address it on the adequacy or otherwise of the sum awarded as general damages cannot arise in the absence of a complaint by any of the parties. Even where the Court below had called the parties to address it on such question of fact, it does not clothe the Court below with the requisite jurisdiction to delve into a question of fact not raised before it by way of cross appeal. It is worthy of note that when an issue is not placed before the Court of Appeal, it has no business whatsoever to deal with it.

A Court of Appeal is not a knight errand looking for skirmishes all about the place. If a party has not complained about the award of damages made by the trial Court, it is not the duty of an appellate Court as such to examine the record of proceedings of the trial Court in order to see if there is any point in favour of the party which will lead to an alteration of the said award of damages.

In my final analysis of the issues raised in this appeal, with all respect, I am also of the view that the increase of the award of general damages without a cross-appeal is wrong, the appeal is meritorious and therefore accordingly allowed. Parties are to bear their respective costs.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant and the respondent herein, entered into a contract on 1/10/2007 wherein the appellant was contracted to provide security for the respondent’s headquarters at NNPC Towers Abuja, Kaduna Depot, Zaria Depot and Zaria Pump stations respectively. The respondent however terminated the contract on 31/01/2014. The appellant was aggrieved and instituted an action before the High Court of the Federal Capital Territory (FCT) seeking the following reliefs: “1.

An order directing the defendant not to terminate the security agreement unless in accordance to the terms of agreement dated 1st day of October, 2007. 2. A perpetual order restraining the defendant from acting on its letter of termination of the security contract for the plaintiff to provide security guards at the defendant’s Kaduna Depot and Zaria Pumping station. 3. An order that the purported letter of termination of contract of security between the parties amounts to a breach of contract. 4.

The plaintiff claims the sum of Twenty Million Naira (N20,000,000.00) from the defendant for breach of contract. 5. The cost of this suit.”

The respondent, upon receipt of the Writ of Summons, Statement of Claim and accompanying documents, filed a notice of preliminary objection challenging the competence of the suit for failure of the appellant to serve one month’s pre-action notice, contrary to Section 12(2) of the Nigerian National Petroleum Corporation (NNPC) Act Cap. N.23, Laws of the Federation of Nigeria (LFN) 2004. In a considered ruling delivered on 5/3/2014, the preliminary objection was overruled on the ground that the Pipelines and Products Marketing Co.

Ltd. is not a wholly owned subsidiary of NNPC and therefore does not fall within the purview of Section 12(2) of the NNPC Act requiring pre-action notice. Consequently, the Court assumed jurisdiction.

The respondent, being dissatisfied with the ruling appealed to the Court below. Allowing the appeal, the Court held, inter alia: Having regard to the fact that the appellant is a corporate subsidiary of NNPC, as can be discerned by the respondent’s Statement of Claim, the respondent’s witness statement on oath, the agreement between the parties and the respondent and the affidavit in support of the appellant’s notice of preliminary objection, the appellant is entitled to be served a pre-action notice as provided for by Section 12(2) of the NNPC Act.

By the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a pre-condition to the competence of the action has not been complied with. The respondent’s action is therefore premature and it is liable to be struck out …Consequent, the respondent’s action with suit No, FCT/HC/CV/160/2014 is hereby struck out for lack of jurisdiction.”

It is the appellant who is now aggrieved. Its notice of appeal filed on 31/10/2015 can be found at page 160-163 of the record. It contains 4 grounds of appeal.

​At the hearing of the appeal on 2nd November 2021, E.J. ESENE ESQ adopted and relied on the Appellant’s brief filed on 23/12/2015 and its Reply brief filed on 4/8/2016, both deemed filed on 2/11/2021, in urging the Court to allow the appeal. M.E. ORU ESQ. drew the Court’s attention to Notice of Preliminary Objection filed on 2/3/2016 and deemed filed on 8/2/2017, which is also incorporated in the Respondent’s brief filed on 29/2/2016 and deemed filed on 8/2/2017.

He adopted and relied on the preliminary objection in urging the Court to strike out the appeal, or alternatively, to dismiss the appeal on the merits based on the arguments therein against the appeal.

The Preliminary objection challenges the hearing of the entire appeal. It must therefore be considered and resolved before delving into the merit of the appeal, should the need arise. The reason is not far-fetched. In the event that the objection has merit, the appeal will be terminated in limine. The grounds of the objection are as follows: 1.

The Notice of Appeal filed on 31st August, 2015 was not signed by any of the solicitors named therein but signed for the solicitor by a person who neither indicated his name and designation nor known to be a legal practitioner contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. L11 LFN 2004. 2. The Notice of Appeal as shown at pages 160-163 of the Record is not stamped and sealed with the stamp of the Legal Practitioner who signed it contrary to Rule 10(1) of the Rules of Professional Conduct, 2007 made pursuant to the Legal Practitioners Act Cap.

L11 LFN 2004. 3. All the grounds of appeal are grounds of mixed law and facts and leave of Court was not sought and obtained before filing, thus rendering the grounds null and void.

On the first ground of objection, learned counsel for the respondent observed that the Notice of Appeal was not signed by any of the counsel stated at page 163 of the record. He noted further that there is a signature above the name Emmanuel Esene Esq. with the letters “PP” written beside the name, signifying that someone signed on behalf of Emmanuel Esene. He submitted that there is nothing to show that the person who signed for Emmanuel Esene Esq. is himself a legal practitioner as provided for in Sections 2(1) and 24 of the Legal Practitioners Act.

He submitted that the letters “PP” stand for “per procurationem” meaning “by authority” or “representing” in Latin.

​He submitted that all legal processes must be signed by identifiable legal practitioners whose names are on the roll of Legal Practitioners at the Supreme Court. He submitted further that being the foundation or substratum of an appeal, any defect in the Notice of Appeal will render the appeal incompetent and the Court would lack the requisite jurisdiction to entertain it. He referred to: Uwazurike Vs A.G.

Federation (2007) ALL FWLR (Pt.367) 834 @ 846; Shellim Vs Gobang (2009) ALL FWLR (Pt.496) 1866 @ 1880- 1881; Tukur Vs Government of Gongola State (1988), NWLR (Pt. 68) 39; Okafor Vs Nweke (2007) ALL FWLR (Pt.368) 1016 @ 1025-1027; (2007) 1 NWLR (Pt.1043) 521.

On the importance of it being clear who signed a process and the identity of such person as a Legal Practitioner whose name is on the roll of Legal Practitioners in Nigeria, he referred to Ministry of Works & Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt.1351) 481; (2013) ALL FWLR (Pt.694) 23 @ 36 F-H; SLB Consortium vs NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 – 338, and a host of other authorities.

​On the second ground of objection, learned counsel submitted that there was non-compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, in that the person who prepared the Notice of Appeal did not affix his stamp and seal thereto. He submitted that the provision is mandatory and therefore legal practitioners are not afforded any discretion in the matter. On the effect of the word “shall” when used in a statute, he referred to Okereke Vs Yar’adua (2008) 12 NWLR (Pt.1100) 95 @ 127 F – G; Ugwu Vs Ararume (2007) ALL FWLR (Pt.377) 807 @ 857 C – F.

He argued further that where the law prescribes the procedure for doing a particular thing, the prescribed procedure must be complied with. He referred to: Dongtoe Vs CSC Plateau State (2001) ALL FWLR (Pt.50) 1637 @ 1663A; Amaechi vs INEC (2008) ALL FWLR (Pt.407) 1 @ 98 C – D. On the need for a legal practitioner to comply with the directives of the Nigerian Bar Association (NBA), he referred to: Chinwo Vs Owhonda (2006) 2 NWLR (Pt.1074) 341.

On the third ground of objection, learned counsel submitted that the grounds of appeal before this Court question the evaluation of facts established before the trial Court and are therefore grounds of mixed law and fact, for which prior leave of this Court or the Court below ought to have been sought or obtained, in accordance with Section 233(3) of the 1999 Constitution, as amended. He referred to: Opuiyo Vs Omoniwari (2007) ALL FWLR (Pt.378) 1093; Oluwole Vs LSDPC (1983) SC 1; Adejumo Vs The State (1983) 5 SC 24; Ogbechie Vs Onochie (1986) 1 NWLR (Pt.23) 484 @ 491.

He submitted that having failed to obtain leave, the grounds of appeal are liable to be struck out. He cited several authorities, including Njemanze Vs Njemanze (2013) 203 MJSC (Pt. II) 30 @ 59 – 60; Oforkire Vs Maduike (2003) 5 NWLR (Pt.812) 166; Oluwole Vs LSPDC (supra). He urged the Court to uphold the objection and strike out the appeal.

In response, learned counsel for the appellant reiterated the well settled principle that only a person whose name appears on the roll of Legal Practitioners at the Supreme Court and who is eligible to practice law as a barrister and solicitor, can sign a Court process. He submitted that in the instant case, the “PP” appearing beside the name Emmanuel Esene, Esq. at page 163 of the record, means “principal partner” and not “per procurationem” in Latin, as asserted by learned counsel for the respondent.

He submitted that the process was signed by Emmanuel Esene, Esq., who is the principal partner in the law firm of Emmanuel Esene & Co.

​He urged the Court to compare the signature with the one appearing at particular pages of the record, which he argues, are the same. On the manner in which a process should be signed by a legal practitioner, he referred to: Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570. He submitted that the appellant’s counsel fully complied with the requirements. He referred to Nigerian Army Vs Samuel (2013) 14 NWLR (Pt.1375) 460; FBN Plc Vs Maiwada (2013) 5 NWLR (Pt.1348) 444; Okafor Vs Nweke (supra); SLB Consortium Vs NNPC (supra) and urged the Court to hold that the notice of appeal is competent.

On the failure to affix learned counsel’s stamp and seal to the notice of appeal, he submitted that the said notice of appeal, dated 27/7/2015 was filed on 31/8/2015 prior to the decision of this Court in SC.22/2015: Yaki & Anor Vs Bagudu, delivered on 13/11/2015, where it was held that the affixing of their stamp and seal on legal processes by Legal Practitioners is mandatory. He submitted that prior to the decision, compliance was not strictly enforced. On this issue, he urged the Court to lean in favour of substance and not technicalities.

​On the competence of the grounds of appeal, he submitted that they are grounds of law alone and not grounds of mixed law and fact, as contended by the respondent’s counsel. He submitted that all the grounds of appeal are seeking the interpretation of Sections 12(2) and 22(1) of the NNPC Act and therefore do not require leave. On how to determine whether a ground of appeal is a ground of law alone or one of mixed law and facts, he referred to Ekunola Vs C.B.N. (2013) 15 NWLR (Pt.1377) 244; Jim-Jaja Vs C.O.P.

Rivers State (2013) 6 NWLR (Pt. 1350) 225 B – C; NNPC Vs Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 and several other cases in urging the Court to dismiss the preliminary objection.

Resolution of the Preliminary Objection Sections 2(1) and 24 of the Legal Practitioners Act provides as follows: 2. (1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. 24.

In this Act, unless the context otherwise requires, “legal practitioner” means a person entitled to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceeding.” These provisions have been interpreted in a plethora of decisions of this Court to the conclusive effect that only a legal practitioner whose name is on the roll of legal practitioners at the Supreme Court, is competent to sign legal processes. See: Okafor Vs Nweke (2007) All FWLR (Pt.368) 1016; (2007) 1 NWLR (Pt.1043) 521; SLB Consortium Ltd.

Vs NNPC (2011) 9 NWLR (Pt.1252) 317; (2011) 4 SC 86; FBN Plc vs Maiwada (2013) 5 NWLR (Pt.1348) 444; SPDC vs Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt.1514) 318, to name just a few. In SLB Consortium Ltd. Vs NNPC (supra), His Lordship, Rhodes-Vivour, JSC, held, inter alia: “What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process, it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act).

All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm. In this case, there is signature of counsel but no name of counsel. A signature without a name is incurably bad.” (Underlining mine)

The notice of appeal in the instant appeal can be found at pages 160 – 163 of the record. At the top of page 163 there is a contraption above the name Emmanuel Esene Esq. The letters “pp” are handwritten beside the name Emmanuel Esene Esq. Beneath Emmanuel Esene Esq., is another name, Peace Ojemen (Miss). The next line states Emmanuel Esene & Co., followed by “Counsel to the Appellant” and the address of Emmanuel Esene & Co. The bone of contention is “who signed the process?” The contraption above Emmanuel Esene & Co. is indecipherable.

One must therefore move to the next line to determine the owner of the signature and to ascertain that it belongs to a legal practitioner whose name is on the roll as required by the Legal Practitioners Act.

​The letters “pp” when placed before a name on a document, are an abbreviation of the Latin term “per procurationem” or “per pro.” It is universally known to be used when signing a letter or document on someone else’s behalf. Black’s Law Dictionary, 8th Edition page 1177 defines “per procurationem”, “per pro” or “pp” to mean “By Proxy.” Osborne’s Concise Law Dictionary, 8th Edition at page 246 defines it to mean “as an agent”, “on behalf of another.”

“pp Emmanuel Esene Esq.” means the contraption or signature above that name belongs to an unidentified person who signed the document on Emmanuel Esene’s behalf. For the process to be competent, it must be shown that the person who appended his signature on behalf of Emmanuel Esene Esq. is himself a person who is entitled to practice as a legal practitioner in Nigeria and whose name is on the roll in compliance with Sections 2 (1) and 24 of the Legal Practitioners Act.

There is no such indication on the process. ​Learned counsel for the appellant has ingeniously argued that “pp” means Principal Partner. I say ingeniously because, if indeed that were the case, the words would have been written in full and would have appeared immediately beneath the name of the said principal partner. On the face of the process as it stands, the notice of appeal was signed by an unknown person on behalf of Emmanuel Esene Esq. It is incurably defective. In R.A. Oliyide & Sons Ltd.

Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt.1622) 549; (2018) LPELR-43711 (SC) @ 30 – 31 D – F, this Court per Sanusi, JSC, held: “It seems to me that the issue at hand relates to the non-signing of a process by a legal practitioner, which is purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court, which can be waived as a mere irregularity. I do not share that view of his.

This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named legal practitioner as opposed to an unknown proxy who is obviously not a legal practitioner known to law.”

A notice of appeal is an originating process. It is the foundation/substratum of any appeal. Any defect therein deprives the Court of jurisdiction and vitiates the appeal. See: Madukolu vs Nkemdilim (1962) 2 NSCC 374; Nigerian Army Vs Samuel & Ors. (2013) 14 NWLR (Pt.1375) 466; (2013) LPELR-20931 (SC) @ 17 – 18 F – C; Uwazurike & Ors. Vs A.G. Federation ​(2007) LPELR-3448 (SC) @ 14 D – F; Ikuepenikan Vs The State (2015) 9 NWLR (Pt.1465) 518; (2015) LPELR-24611 @ 48 A- D.

The first ground of objection is resolved in the appellant’s favour. Having held that there is nothing to show that the person who signed the notice of appeal per pro Emmanuel Esene Esq. is an identifiable legal practitioner and that the notice is accordingly incompetent, the issue of affixing the unknown legal practitioner’s stamp and seal to the process in compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, becomes otiose.

The final ground of objection is the competence or otherwise of the grounds of appeal. While the respondent contends that all the grounds of appeal raise questions of mixed law and fact, for which leave is required pursuant to Section 233 (3) of the 1999 Constitution, as amended, learned counsel for the appellant asserts, relying on Section 233 (2) of the Constitution, that the grounds are grounds of law alone for which no leave is required.

Section 233 (2) (a) and (3) of the 1999 Constitution, as amended, provides: 233 (2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal. (3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” In the case of: Ogbechie Vs Onochie (1986) LPELR – 2278 (SC) @ 8 C – E, His Lordship, Eso, JSC, provided a guideline for determining whether a ground of appeal is one of law alone or of mixed law and fact, to wit: “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact.

The issue of pure fact is easier to determine.” In Chrome Air Services Ltd. & Ors. Vs Fidelity Bank (2017) LPELR-43470 (SC) @ 23 – 24, His Lordship, Nweze, JSC referred to an earlier decision of this Court in ACB Plc. Vs Obmiami Brick & Stone Nig. Ltd. (1993) LPELR – 206 (SC) @ 27 E – F, to wit: “It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law.

Where, on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion.” See also: The State Vs Omoyele (2017) 1 NWLR (Pt.1547) 341; Global West Vessel Specialist Nig. Ltd. vs NNLG Ltd. & Anor. (2017) 1 – 2 SC (Pt. II) 39; (2017) LPELR-41987 (SC) @ 27 – 28 F – D; Fasuyi & Ors. Vs PDP & Ors. (2017) LPELR-43462 (SC) 32 B – D.

It is also trite that the mere labeling of a ground of appeal as a ground of law does not make it so. The Court must examine the grounds along with their particulars in order to make a proper determination of the issue. See: Nwadike & Ors. Vs Ibekwe & Ors. (1987) 12 SC 14; Brittania-U Nig. Ltd. vs Seplat Petroleum Devt. Co. Ltd. & Ors (2016) LPELR – 40007 (SC) @ 52 – 54 E – A; Briggs Vs C.L.O.R.S.N. & Ors. (2005) 4 SC 89; (2005) LPELR-805 (SC) @ 10 C- F.

The four grounds of appeal contained in the Notice of Appeal filed on 31/8/2015 are as follows: Ground One The lower Court erred in law when it held that the Respondent is a corporate subsidiary of the Nigerian National Petroleum Corporation which falls under Section 22 (1) of the NNPC Act 2004 Particulars of Error The respondent failed to prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation.

Ground Two The lower Court erred in law when they held that Section 12 (2) of the Nigerian National Petroleum Corporation Act applies to the Respondent and as such they are entitled to be issued a pre-action notice before instituting the suit against the respondent and failure to do so has made the appellant’s suit premature and liable to be struck out.

Particulars of Error The respondent is a private limited liability company incorporated under Part A of the Companies and Allied Matters Act and not a statutory body as well as not a wholly owned subsidiary of the Nigerian National Petroleum Corporation as claimed by the respondent, without proving same by way of evidence. Ground Three The lower Court erred in law when he held that the appellant’s action with Suit No. FCT/HC/CV/160/2014 was struck out for lack of jurisdiction. Particulars of Error It is trite that one cannot put something on nothing and expect it to stand.

The respondent did not adduce any material evidence to show or prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation for Section 12 (2) of the Nigerian National Petroleum Corporation Act to be applicable. Ground Four The lower Court erred in law when he held that the Nigerian National Petroleum Corporation is itself a corporation it (sic: its) subsidiary corporation is a subsidiary corporation and the use of the word wholly owned subsidiary in Section 22 (1) of the Nigerian National Petroleum Corporation Act is a misnomer and a mere tautology.

Particulars of Error That in accordance to (sic) Section 22 (1) of the Nigerian National Petroleum Corporation Act, before the respondent can be a subsidiary of the NNPC it must be wholly owned. (Underlining Mine)

A careful perusal of the grounds of appeal and their particulars shows clearly that they raise issues of mixed law and facts, as the alleged error of law complained of is founded on disputed facts calling into question the correctness of the facts determined. The facts are in contention to the extent that the appellant is inviting the Court to determine whether the respondent established by evidence that it is a wholly owned subsidiary of NNPC to bring it within the purview of Section 22 (1) of the NNPC Act.

Having failed to obtain the requisite leave of this Court or the Court below before filing the appeal, the notice of appeal filed in breach of Section 233 (3) of the 1999 Constitution, as amended, is incompetent, null and void. It is accordingly hereby struck out.

In light of my several findings above, I find merit in the preliminary objection raised by the respondent. It is hereby sustained. The appeal is hereby struck out for incompetence. Costs of N1 million are awarded against the appellant in favour of the respondent.

EJEMBI EKO, J.S.C.: The question: who signed the Notice of Appeal strikes at the very foundation the appeal is predicated on. The Notice of Appeal appears to have been signed or settled by an unknown proxy of the named Legal Practitioner – Emmanuel Esene, Esq. of Emmanuel Esene & Co. ​There is a hand written prefix- “pp” to the name Emmanuel Esene, Esq. The prefix “pp” suggests prima facie that it was the unnamed and unknown proxy or agent of the said Legal Practitioner Emmanuel Esene, Esq., who signed or settled the said Notice of Appeal.

The contraption clearly renders the Notice of Appeal a suspect document. “Who signed this Notice of Appeal?” is a question of fact. In the Appellant’s Reply Brief, Mr. Esene of Appellant’s Counsel suggests, by way of unverified evidence from the Bar, that “pp” means Principal Partner” and that he is the said Principal Partner. A bare statement from the Bar, unverified, has no force of legal evidence: ONU OBEKPA v. C.O.P. (1980) 1 NCR 113.

Accordingly the said bare statement from the Bar, not having any force of legal evidence, does not satisfy the requirements of Sections 131 & 132 of the Evidence Act, 2011 to the effect that the burden of proof lies on he who asserts the existence of a fact on which depends any legal right he claims to prove that the said fact exists. It is not a notorious fact that the abbreviation “pp” means “principal partner”. On the other hand, the letters “pp” is universally known in law to mean “by proxy”: Black’s Law Dictionary 9th Ed.

Page 1256; Earl Jowitt: The Dictionary of English Law, 1965 second impression at pages 1328 & 1419. Generally, the Court does not know abbreviations and therefore will not rely on its personal information (which may well be mistaken) to venture meanings: RAGO KURA v. C.O.P (1976) NWLR 148 at 149. Thus as Rhodes-Vivour, JSC held in SLB CONSORTIUM LTD v.

NNPC (2011) 9 NWLR (pt. 1252) 317: Once it cannot be said who signed a process, the process is incurably bad. ​The instant Notice of Appeal signed by an unknown and unnamed proxy of Emmanuel Esene, Esq as Appellant’s counsel is incurably defective. I agree with my Lord, K. M. O. KEKERE-EKUN, JSC, in the judgment just delivered that the appeal be, and is hereby struck out for incompetence. I also adopt orders as to costs made therein. Appeal struck out.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, K. M. O. Kekere-Ekun, JSC, in this appeal and completely agree with the views that there is merit in the Preliminary Objection raised by the Respondent on the competence of the Notice of Appeal filed by the Appellant on 31st August, 2015, which is at pages 160 – 163 of the Record of Appeal.

A calm look at the Notice of Appeal would easily show that it was signed by an unknown proxy, for Emmanuel Esene, Esq. and not by an identified or even identifiable Legal Practitioner whose name is or can be on the Roll to be entitled to practice as a Barrister or Solicitor, either generally or for the purpose of any particular office or proceeding, as prescribed by the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act (LPA). ​In all the appellate Courts in Nigeria, a Notice of Appeal is the originating process which is used to invoke the constitutional jurisdiction to hear and determine appeals against the decisions of lower Courts vested in the appellate Courts.

The validity of such a Notice of Appeal is therefore sine qua non to the competence and jurisdiction of the appellate Courts to entertain and adjudicate over the appeals. See Amadi v. Okoti (1972) 7 SC, 57, Olanrewaju v. BON Ltd (1994) 8 NWLR (pt. 364) 622, Uwazurike v. A.G. Federation (2007) 8 NWLR (pt. 1035)1.

A material defect on the Notice of Appeal such as non-compliance with the provisions of the Legal Practitioners’ Act (LPA), as in the present appeal, is fatal and will render it legally invalid and incompetent to be incapable of properly invoking the requisite jurisdiction of the appellate Court. See Dambam v. Lele (2000) 11 NWLR (pt. 678) 413, Abiola v. Olawoye (2006) 13 NWLR (pt. 996) 1, Re: Otuedon (1995) 4 NWLR (pt. 392) 655, FBN Plc v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 247, CBN v. Okojie (2004) NWLR (pt. 882) 488.

In addition, all the four (4) grounds contained on the Notice of Appeal, at best, raise and involve issues or questions of mixed law and facts, which, as a condition precedent for their validity, require the prior leave of either the Court below or this Court by dint of Section 233 (2) (a) and (3) of the 1999 Constitution (as amended). The Notice of Appeal was filed as of right and so the condition precedent for its validity was not fulfilled, thereby rendering it incompetent and depriving the Court of the requisite jurisdiction to entertain and adjudicate over the appeal on the merit.

See Ikweki v. Ebele(2005) 2 SC (pt 11) 96, REAN, Plc v. Anumnu (2003) 6 NWLR (pt. 815) 52, Abalaka v. President, FRN (2012) 5 NWLR (pt. 1292) 102.

The above restatements of the law on the requirements of the Legal Practitioners’ Act (LPA) on the signing of documents to be filed in Court and for leave in respect of grounds of appeal which raise or involve questions of mixed law and facts in this Court, are now common knowledge to require citation of more judicial authorities than referred to in the lead judgment.

For the above and better reasons in the lead judgment, I join in striking out the Notice of Appeal for being grossly incompetent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having previewed, before now, the judgment just delivered by my learned brother the Hon. Justice M.K.O Kekere-Ekun, JSC, I have no hesitation whatsoever, in concurring with the reasoning reached therein, to the effect that the present appeal is grossly incompetent.

Undoubtedly, by failing to seek and obtain the necessary leave of the Court prior to filing the appeal, the notice of appeal filed on 31/08/2015 in blatant contravention of the mandatory provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, is rendered grossly incompetent.

Hence, I too hereby strike out the appeal for incompetence. I abide by the consequential order in regard to costs of N1 million awarded against the Appellant, in favour of the Respondent.

TIJJANI ABUBAKAR, J.S.C.: This appeal is against the decision of the Court of Appeal Abuja Division delivered on the 12th day of June, 2015 in favour of the Respondent in this appeal. The Appellant became aggrieved and therefore brought this appeal.

​The facts grounding the appeal are that, the Appellant herein was providing security for the Respondent in Kaduna and its pipelines pump station in Zaria. The agreement was terminated by the Respondent and the Appellant commenced action at the trial Court challenging the termination.

The Respondent filed preliminary objection contending that the Appellant must serve it pre-action Notice being an agency of the NNPC, the trial Court disagreed, the Respondent therefore appealed to the Court of Appeal where the lower Court agreed that it was necessary to serve the Respondent pre-action Notice and therefore struck out the action for incompetence. The Appellant therefore lodged an appeal before this Court against the decision of the lower Court.

The Respondent filed Notice of preliminary objection contending that the Notice of appeal was not properly signed and the grounds of appeal are grounds of mixed law and facts, the Appellant therefore needed leave of Court to bring the appeal. The learned Counsel for the Respondent therefore argued that the appeal was not initiated by due process.

​My Lord and learned brother, KEKERE-EKUN, JSC who graciously granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal, carefully and meticulously resolved all the issues submitted for determination, I must admit that the resolution of the issues by my lord is in accord with my views, I therefore adopt the Judgment as my own.

I entirely agree that the four grounds of appeal filed by the Appellant are grounds of mixed law and facts, the Appellant ought to have sought for and obtain leave of Court before bringing the appeal, and having failed to do so as required by Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the appeal must be held to be incompetent. Respondent’s preliminary objection is therefore meritorious and is hereby sustained. Appellant’s appeal is accordingly struck out. I also abide by all consequential orders including the order on costs.

Judgment

TIJJANI ABUBAKAR, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of appeal sitting in Makurdi delivered on the 15th day of December, 2021. The judgment of the Court affirmed the ruling delivered by the High Court of Justice Nasarawa State on the 8th day of October, 20211 wherein the trial Court struck out the action filed by the Plaintiff/Appellant for want of jurisdiction.

Just by way of summary of facts grounding this appeal, the Appellant commenced action against the 1st to 4th Respondents (as 1st- 4th Defendants) by originating summons challenging the primary elections conducted by the 1st Respondent on the 26th day of July, 2021 for the position of chairman Nasarawa Eggon Local Government of Nasarawa State.

The Appellant felt aggrieved by the way the primaries were conducted because he satisfied all the requirements for participation in the primary elections to contest for the office of the Chairman Nasarawa Eggon Local Government but to his utter surprise and chagrin the Primary elections were conducted behind him through some manoeuvres and intrigues, he was side-lined, the primary elections produced the 3rd Respondent as the successful candidate of the 1st Respondent, the name of the 3rd Respondent was therefore submitted to the 4th Respondent as the successful candidate of the 1st Respondent.

The Plaintiff /Appellant took out originating summons on the 9th day of August, 2021 at the High Court of Justice, Nasarawa State, asking for some declarations and questions to be determined by the trial Court, the declarations and questions are therefore reproduced as follows: 1. A DECLARATION that the Primary Election organized and conducted by the 1st and 2nd Defendants in Nasarawa Eggon Local Government Council is null, void and of no effect whatsoever arising from an illegal structure of the party. 2.

A DECLARATION that the 3rd Defendant is not validly nominated for Local Government General Elections scheduled for 6th October, 2021, as such any certificate issued to him by the 1st Defendants is null, invalid and of no effect whatsoever. AN ORDER directing the 1st and 2nd Defendants to immediately withdraw the nomination of 3rd Defendant as candidate for Nasarawa Eggon L.G.C. in the proposed Local Government elections. 3.

AN ORDER OF INJUNCTION restraining the 1st and 4th Defendant from dealing with, recognizing or continuing to recognize in any manner howsoever, acting on the name of the 3rd Defendant or holding out the 3rd Defendant as the candidate of the 1st Defendant for chairmanship of Nasarawa Eggon – Local Government Area for 6th October, 2021, Local Government, Elections. 4.

AN ORDER restraining the 3rd Defendant from holding out or parading himself as the candidate of the 1st Defendant for Nasarawa Eggon Local Government Council for the Local Government Council General Elections scheduled for 6th October, 2021. 5. A DECLARATION that Caretaker Committees of Local Government Area and wards are not legally and democratically elected executives of the 1st Defendant, as such they cannot elect candidate for any election, therefore the exercise conducted by them is illegal, unconstitutional, null, void and has no effect whatsoever. 6.

AND FOR SUCH FURTHER ORDER(s) as this Honorable Court may deem fit to make in the circumstance.

The Plaintiff then asked for the determination of the following three questions: i. Whether having regard to the provision of Article 20(iv) (a) of the APC Constitution, the Caretaker Committee of the Local Government Area and wards constitute the electoral college of delegates democratically elected by members of the party for the purpose of nominating a candidate for an election. ii.

Whether there was at any time voting at the ward congresses to elect the members of the Electoral College to empowers them to participate at the nomination of candidate for election into the Local Government Council in compliance with Article 20(iv) (c & d). iii. Whether by virtue of Article 20(iii) of the APC Constitution, the nomination of candidate for Local Government Council Elections can be done by consensus and not direct primary given the circumstance of the party at the moment.

At the trial, the 1st and 2nd Respondents filed notice of preliminary objection seeking to strike out the suit on four grounds.

The grounds of objection at the trial were that, the Plaintiff had no locus standi to institute the action, that the suit was filed outside the 14 days period required, the action was therefore statute barred, that the plaintiff failed to include his National Identification Number in the originating summons thereby rendering the processes filed invalid, and that the Plaintiff had not exhausted the internal remedies for dispute resolution in line with the party Constitution. The 4th Respondent also filed notice of preliminary objection contending that there was no cause of action against it.

The matter was heard by the trial Court, the trial Court held that it had no jurisdiction to entertain the appeal, it was accordingly struck out. The Appellant became nettled by the decision of the trial Court and appealed to the lower Court, the Court of Appeal Makurdi Division. On the 15th day of December, 2021, the lower Court rendered a decision holding that it had no jurisdiction to entertain the appeal, the appeal was therefore accordingly struck out. The Appellant again became aggrieved and further appealed to this Court against the concurrent findings of the trial and lower Court.

The appeal to this Court premised on three grounds of appeal was filed on the 22nd day of December, 2021.

The brief of argument of the Appellant was filed by learned Counsel M.M. Hirse, Esq., on the 25th day of January, 2022. In the Appellants brief of argument, learned Counsel nominated and argued three issues for determination, the issues are: a. Whether the Court of Appeal was right in holding that it did not have the Jurisdiction to hear and determine an appeal challenging the primary election of the All Progressive Congress to the position of the Chairman of Nasarawa Eggon Local Government of Nasarawa State. b.

Whether having regards to the reliefs endorsed on the Originating Summons and the facts in the affidavit in support thereof, the Court of Appeal was right in striking out the Appeal against judgment of the trial Court on the ground that the Court of Appeal did not possess jurisdiction without hearing the parties and entering a decision on the Appeal before it. c. Whether a dissatisfied contestant to a primary election can approach the Court for redress (Distilled from Ground 3).

The 1st and 2nd Respondents’ brief of argument was filed by learned Counsel Usman on the 8th day of February, 2022. In the brief of argument, Counsel argued the 1st and 2nd Respondents’ preliminary objection and adopted the issues submitted for determination by the Appellant as their issues for determination, I am sure it is needless reproducing the issues again, it is sufficient to mention that the 1st and 2nd Respondents adopted Appellants issues for determination in arguing this appeal.

Learned Counsel Nalaraba filed the 3rd Respondent’s brief of argument on the 8th day of February, 2022 and nominated sole issue for discourse in the determination of this appeal, the sole issue is also reproduced: Whether the Court of Appeal was right in holding that it does not have jurisdiction to hear and determine appeal of the Appellant as filed before it (distilled from grounds 1 and 2).

Learned senior Counsel Hassan Liman SAN filed the 4th Respondent’s brief of argument on the 7th day of February, 2022, in the brief of argument Counsel incorporated argument on the preliminary objection of the 4th Respondent. The fulcrum of the 4th Respondent’s preliminary objection is that this Court lacks the requisite Jurisdiction to hear and determine this appeal.

Learned Counsel also reacted to the substantive appeal by crafting sole issue for determination, the issue reads as follows: Whether in view of the provision of Section 285 (14) (a) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017 and the settled position of the law, the Court of Appeal was right to have struck out the Appellant’s appeal for lack of jurisdiction.

From the processes filed in this appeal, it is clear that the 1st, 2nd and 4th Respondents filed preliminary objections to the hearing and determination of the appeal.

The law is well settled on a chain of seemingly endless decisions of this Court that, where a preliminary objection to the hearing of an appeal is raised, the Court must deal with it before proceeding to hear and determine the substantive appeal if so doing is eventually found to be necessary, where preliminary objection to the hearing of an appeal is sustained, the necessity to hear and determine the substantive appeal becomes obviated, in other words, the appeal comes to the end, where the objection is held to be without merit it will be discountenanced, the Court will then proceed to the hearing and determination of the appeal on the merit.

See the decision of this Court in UDENWA & ANOR V. UZODINMA & ANOR (2012) LPELR-22283 (SC), where my law lord and brother ARIWOOLA, JSC held as follows: “Preliminary objection in a case is an objection that, if upheld would render further proceedings before the Court impossible or unnecessary. An objection to the Court’s jurisdiction is an example of a preliminary objection. See Black’s Law Dictionary 9th Edition page 1299. Generally, the Rules of this Court allow a respondent to rely on a preliminary objection to the hearing of the appeal.

The purpose of this is to bring the appeal to an end having been discovered to be incompetent and or fundamentally defective. It will therefore be unnecessary to continue with an appeal once an objection is raised without disposing of same. In other words, the Court is expected to deal with and dispose of a preliminary objection once raised by a respondent before taking any further step in the appeal. See General Electric Company V. Harry Ayoade Akande & Ors (2010) 12 (Pt.2) SCM 96 and Lamidi Rabiu V. Tola Adebajo (2012) 6 SCM 201.”

In absolute obedience to the settled position of the law therefore, will tackle the preliminary objections first before delving into the substantive appeal if so doing turns out to be necessary.

THE PRELIMINARY OBJECTION The 1st and 2nd Respondents filed notice of preliminary objection on the 8th day of February, 2022, in the notice of preliminary objection, the Respondents contend that: 1. “The Court lacks jurisdiction to entertain this appeal. 2. The suit was filed outside the required period of 14 days as provided by Section 285(9) of the 1999 Constitution (as amended) and same is statute barred.”

The 4th Respondent also gave notice of preliminary objection contending that the Court lacks the requisite jurisdiction to entertain the appeal.

The contention of the 1st and 2nd Respondents is that the suit was filed at the trial Court outside the 14 days provided for in Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999, 4th Alteration Act. Learned Counsel submitted that once a statute provides for the way a particular act shall be done, it must be done in such manner, that Section 285 (9) of the Constitution provides that every pre-election matter SHALL be filed not less than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.

Learned Counsel relied on the decisions in ACN V. INEC (2013) NWLR (Pt. 1370) Pg. 161, INEC V. ONOWAKPOKO (2018) 2 NWLR (Pt. 1602) pg. 134, YAKI V. BAGUDU (2015) 18 NWLR (Pt. 1491) pg. 288, and CBN V. HARRIS (2017) 11 NWLR (Pt. 1575) Pg. 541 to submit that the provisions of Section 285 (9) limited the rights of the Plaintiff to file any action once he did not meet up with the requirement of the 1999 Constitution (4th Alteration) Act.

Learned Counsel then submitted that suit no. NSD/LF55/2021 was filed on the 9th day of August, 2021 and the cause of action arose on the 26th day of July, 2021, that between 26th July, 2021 to 9th August, 2021 is 15 days, from this computation therefore Counsel said the suit was filed outside the 14 days limited by the provisions of Section 285 (9) of the Constitution of Nigeria 1999 (4th Alteration) Act, the action is therefore statute barred. Counsel therefore urged that the suit be struck out for want of jurisdiction.

The learned Counsel for the 4th Respondent referred to the decision of this Court in UDENWA & ANOR V. UZODINMA & ANOR (2012) LPELR-22283 (SC) to submit that appeals coming from the Court of appeal that border on Local Government Elections are not among the items listed under Section 233 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) he therefore urged this Court to hold that it lacks jurisdiction to hear and determine this appeal.

In the reply brief filed by the Appellant on the 11th day of February, 22, Counsel submitted that the Appellant has consistently, constantly and persistently challenged the conduct of the primary elections held by the All Progressive Congress at Nasarawa Eggon Local Government on the 26th of July, 2021, so doing Counsel said falls within the rights of the Appellant under Section 87 (9) of the Electoral Act. Learned Counsel urged this Court to discountenance the objections.

RESOLUTION In resolving the objection to the competence of this appeal, it is necessary to examine the basis of striking out the suit at the trial Court and the lower Court, since the grievance of the Appellant is that he was unlawfully excluded from participation in the primary elections to contest for the office of the Chairman of Nasarawa Eggon Local Government, the Appellant in reaction to the contention of the Respondents as set out in the Appellants reply filed on the 26th of July, 2021, sought refuge under Section 87(9) of the Electoral Act.

What does the section of the Electoral act say?

Let me reproduce the provisions of Section 87 (9) of the Electoral act 2010 (as amended) the section provides as follows: “87(9) Notwithstanding the provisions of this Act or Rules of a Political Party, an aspirant who complains that any provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High or the High Court of a State or FCT, for redress.” From the above provision of the law, Appellant brought himself under the provisions of the Electoral Act and insisted that he came to the trial Court pursuant to the provisions of Section 87(9) of the Electoral Act to ventilate his grievance by so doing, he subjected his claim to the provisions of Section 285 of the Constitution of the Federal Republic of Nigeria (4th Alteration) Act, thereby making his suit incompetent having been filed outside the 14 days provided by law.

A litigant cannot choose to impose himself on any provisions of the law, rather, it is the facts and circumstances of his case that will determine the law applicable to his case, this is in accord with the settled position of the law that parties cannot confer jurisdiction on the Court.

Again a point of want of jurisdiction being fundamental to the process of adjudication can be raised by the Court suo motu even where the parties fail to do. See IJEBU-ODE L. G. V. BALOGUN & CO LTD (1991) SC. In the instant case, from the onset, the Respondents consistently challenged the jurisdiction of the Court from the trial up to and including this Court, in effect therefore point of jurisdiction has been central to the determination of the case between the contending parties in this appeal.

Before coming to determination of the infantry of objections lined UP by the Respondents, let me find out why the trial Court held the view that Appellant’s action at the Court was incompetent. At page 331 of the records of appeal in the judgment of the trial Court, the learned trial Judge held as follows: “The Court will not allow a political party to act arbitrarily or as it likes, a political party must obey its own constitution. A corollary of the foregoing is that Courts are confined by the four walls of the agreement entered into by parties.

Once same is voluntary, the Courts cannot rewrite it for the parties. The Plaintiff is a voluntary member of the APC and as such is bound by the Constitution of the APC. It is on record that the plaintiff did not exhaust the procedure laid down by the constitution of his party the APC in seeking redress for any received wrongdoings against him by the party. Jurisdiction is not conferred on Courts by ingenious arguments or semantics. It is either Court has jurisdiction or not.

From the originating summons of the plaintiff before me, and orders he seeks from Court, can be grantable, only if I have the jurisdiction to adjudicate. The plaintiff not having exhausted the procedure laid down by the constitution of his party the APC robs me of the jurisdiction to entertain the main suit. The Plaintiff should seek redress under his political party constitution, and if that fails, then he can approach the Court. But for now, I decline jurisdiction and refuse the prayers of the Plaintiff, the suit is hereby struck out.”

The trial Court held the view that since the Plaintiff Appellant failed to exhaust the internal dispute resolution mechanism of his political party, his action was adjudged incompetent having failed to satisfy condition precedent to commence an action in Court.

The Appellant became aggrieved by the decision of the trial Court and therefore rushed to the lower Court at page 416 of the records of appeal containing the judgment of the lower Court, the Court held as follows: “Similar issues as in contention here in this appeal had cropped up before the Court for determination and upon consideration of Sections 240, 241, 242 and 243 of the 1999 Constitution (As Amended); it was held beyond any iota of doubt that this Court is not endowed with Appellate jurisdiction to entertain Appeals bothering on decisions of the lower Court on the Election of Chairman, and/or Councilors of Local Governments… the Apex Court held that there is no such right of appeal on decisions bothering on Local Government Elections from a Court to the Court of Appeal.

By virtue of Section 285(14) (a).”

Further in the judgment of the lower Court at page 4171, the lower Court again held as follows and I quote: “our jurisdiction is limited to pre-election matters regulated by the Electoral Act or any Act of the National Assembly as the Local Government Electoral Law of Nasarawa State or any other State except that of the Federal Capital Territory cannot confer jurisdiction on this Court. See the case of Chief (Mrs.). Olufunke Victoria Ehuwa vs.

Ondo State Independent Electoral Commissioner & Ors. (2006) 10 NWLR (Pt.1012) 544 at 576 para, G; where the Legal Sage and Emeritus Law Lord of the Apex Court Onnoghen, JSC (later CJN) at pages 589 para. H to 591 para. A; aptly posited on the vexed issue of the jurisdiction of the Court of Appeal in appeal from the High Court on Local Government Elections thus: “It is settled law that jurisdiction is creation of statute or that jurisdiction is always donated by the Constitution or Statute and is never inferred or implied.

Looking closely at the relevant constitutional provisions; I have no hesitation in holding that no Section of the 1999 Constitution expressly conferred on the Court of appeal jurisdiction to hear Appeals Court of from appeals from the High Court emanating from decisions of that Court on appeal from Local Government Tribunals …”

Both Courts clearly distanced themselves from the case of the Appellant, while the trial Court was of the view that the Plaintiff/Appellant was hasty in packaging his claim to the Court having omitted to address condition precedent, the lower Court held very clearly that it had no jurisdiction to hear and determine the appeal.

It is very clear that jurisdiction is donated to this Court and all other Courts by statutes, why must the Court deliberately open flood gate to endless frivolous litigations? Does the Constitution talk about Local Government elections? Does the Electoral Act talk about Local Government elections?

To address this issue in support of the position taken by the lower Court, I must embark on navigation into the Electoral Act to unveil where the Appellant thought he could find solace in clothing himself with the right to approach the Court of Appeal in his bid to contest for the office of Chairman in a Local Government.​ I will refer to part VI of the Electoral Act in particular Sections 103 (1) of the Electoral Act which provides for election into Local Governments as follows: “103(1) The conduct of elections into the offices of Chairman, Vice-Chairman and a member of an Area Council and the recall of a member of an Area Council shall be under the direction and supervision of the Commission in accordance with this Act. (2) The register of voters compiled and the polling units established by the Commission and other regulations, guidelines, rules or manual issued or made by the Commission shall be used for elections into the Area Council or recall of a member.” From the provisions of Section 103 of the Act, it is very clear to me that the case of the Plaintiff/Appellant is wholly and exclusively regulated by the Nasarawa State Electoral Law, the National Electoral Commission or the Electoral Act have no place in the election, the elections contemplated by the Electoral Act, are elections into local area Councils as defined under Section 156 of the Electoral Act.

Section 156 of the Act defines area Councils as: “Area Council” means Area Councils recognized and existing by virtue of Section 3 (6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly in accordance with Section 8 (5) of the Constitution.” Section 3(6) of the Constitution provides for 778 Local Governments and six area Councils as set out in the I and II Schedules to the Constitution of the Federal Republic of Nigeria (1999) (as amended), the Appellant in the instant appeal falls within the 778 Local Governments, (Nasarawa Eggon Local Government) he does not come within the schedule to the Constitution where the Electoral Act applies, in other words, he does not belong to a local area council.

For the avoidance of doubt, the II schedule to the Constitution where Area Councils are provided is also reproduced as follows: FEDERAL CAPITAL TERRITORY, ABUJA Area Councils Area Council Headquarters Abaji Abaji Abuja Municipal Garki Bwari Bwari Gwagwalada Gwagwalada Kuje Kuje Kwali Kwali​ From the provisions of Section 103 of the Electoral Act, it is very clear to me that elections into Local Government offices conducted under State Laws cannot find their way to the Court of Appeal or Supreme Court under any guise, this is therefore so as rightly found by the lower Court.

Politicians operating under the State Electoral laws must begin and end their squabbles and skirmishes within the State, such wrangling must not extend to this Court. The Appellant has no business whatsoever taking his grievance before the lower Court. It is necessary to sound a note of counsel to politicians to learn to respect their Constitution so doing will enrich internal democracy and promote the culture of voluntary compliance, not every irritating claim is deserving of judicial time and attention.

Politicians must begin to have faith in their own internal dispute resolution mechanism, they must graduate into managing their internal domestic affairs without running for judicial intervention at all times.

I must just go by the settled position of the law, that this Court cannot exercise jurisdiction once the trial Court or the lower Court is without jurisdiction. An Appellate Court can only exercise its appellate jurisdiction to correct errors of the lower Court. Having decided that the lower Court had no jurisdiction to tinker with the decision of the trial Court, it follows automatically therefore that this Court has no jurisdiction of its own to exercise. See AKINBOBOLA V. PLISSON FISKO NIG LTD & 2 ORS (1991) 1 NWLR (Pt. 167) 270 AT 285.

The Jurisdiction of the lower Court as rightly found by the Court is limited to matters regulated by the Electoral Act or any Act of the National Assembly. The Local Government Electoral Law of Nasarawa State or any other State except that of the Federal Capital Territory as it relates to area Councils cannot confer jurisdiction on the lower Court or this Court.

On the whole therefore, the preliminary objection is meritorious and is accordingly sustained, this Court has no jurisdiction to entertain Appellant’s appeal, it is therefore struck out.

Parties shall bear their respective costs.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Tijjani Abubakar, JSC, obliged me with the draft of the leading judgment just delivered. I entirely agree with His Lordship that the preliminary objection is meritorious and should be sustained. ​ Arguing on its preliminary objection, the fourth respondent submitted that this Court is a Court of limited jurisdiction as provided under Section 233 of the Constitution of the Federal Republic of Nigeria. He relied on the case of Udenwa and Anor v Uzodinma and Anor (2012) LPELR-22238 (SC) 58-60.

He posited further that appeals emanating from the Court of Appeal that bother on Local Government Elections are not among the listed items provided under Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In response, learned counsel for the appellant, in his reply brief, submitted that the fourth respondent’s position is misleading and a misconception of the law. He contended that the matter before this Court is an appeal against the decision of the lower Court declining jurisdiction to entertain a matter brought to it by the appellant. See Western Steel Works Ltd v Iron and Steel Workers Union [1987] 1 NWLR (pt. 49) 284.

He submitted further that the matter before this Court is a pre-election matter that centered on the interpretation of the law of a political party. This, in his submission, is the purpose of Sections 78 and 98 of the Electoral Act, 2010 and the Constitution.

RESOLUTION OF THE ISSUE My Lords, as it is well-known, the right of appeal to this Court neither exists in vacuo nor in nubibus. It [the said right of appeal] is either created by statute or by the Constitution. It thus, does not derive from any other source such as the Court’s inherent jurisdiction or the common law.

See W.A.E.C v Adeyanju [2008] 9 NWLR (pt. 1092) 270, Adigun and 2 Ors v The Attorney-General of Oyo State and 18 Ors [1987] 2 NWLR (pt. 56) 197; [1987] 3 SCNJ 118, Ugwuh v Attorney-General East Central State [1975] 6 SC 13, National Bank of Nigeria Ltd v Weide and Co, (Nig,) Ltd and Ors[1996] 10 SCNJ 147.

The legislative competence of the Nasarawa State House of Assembly, under Section 7 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), is limited to matters within its jurisdiction. As such matters, like appeals to this Court, are not within its competence, it [the said House of Assembly] is incapable of conferring a right of appeal on this Court. Neither this Court nor the lower Court, therefore, has any jurisdiction to entertain the appellant’s appeal.

It is for these, and the more elaborate reasons in the leading judgment, that I too hold that this appeal be dismissed.

I also abide by the order as to costs in the leading judgment.

AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead judgment just delivered by my learned brother, Abubakar, JSC and I totally agree with his reasoning and conclusion.

The action that led to this appeal was predicated on the primary election conducted by a political party for the position of Chairman of a Local Government, and as my learned brother clearly said, elections into such offices cannot find their way to the lower Court or this Court.

The law is that once a Court has no jurisdiction, a party cannot use any statutory provision or common law principle to impose it since absence of jurisdiction is irreparable in law. The matter ends there. So, this Court cannot entertain appeals, which it has no jurisdiction to adjudicate upon – Onuaguluchi V. Ndu (2001) 7 NWLR (Pt. 712) 309.

Simply put, this Court has no jurisdiction to entertain this appeal, and it is for this and the other eloquent reasons in the lead judgment that I also uphold the Preliminary Objection and strike out this appeal. I also order that the parties shall bear their respective costs.

HELEN MORONKEJI

OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother, TIJJANI ABUBAKAR JSC. I am in complete agreement with his reasoning and conclusion that there is merit in the preliminary objection by the 1st and 2nd Respondents and that the preliminary objection to this appeal should be sustained and the appeal should be struck out.

The complaints of the Appellant and the cause of action at the trial Court is against the primary elections conducted by his party for the purpose of selecting candidates for the Local Government Council elections to be conducted by the Nasarawa State Independent Electoral Commission. The trial Court, the Court below and consequently, this Court has no jurisdiction to hear and determine any cause of action or petition emanating from the conduct of election to posts in the Local Government Councils of the Country.

Such cases end at the State level in accordance with the electoral law of the State.

Whereas in this case, it is a complaint about the conduct of party primaries precisely about the conduct of the political party, the Appellant cannot complain against the manner in which a party primary in which he did not participate was conducted. He has no locus to do so. The Court will not interfere on the conduct of the internal affairs of a political party to choose for the party the candidates at its primaries.

The Court can only come in circumstances provided by law where the candidate having been allowed to participate at the primaries complains about the conduct and outcome of the primary he participated in. As stated earlier, since the jurisdiction of the Court below cannot be activated, then the jurisdiction of this Court cannot also be activated. Appeal struck out. I abide by the order as to costs in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, TIJJANI ABUBAKAR, JSC. I agree with the reasoning conclusions, decisions, including the orders therein.

I agree with the sound restatement of my learned brother that political parties and their members should have faith in the internal dispute resolution mechanisms prescribed in their party constitution. A member of a political party has by his membership of that party agreed to be bound by the Constitution of the political party and the majority decision of the party. Having subscribed to the membership of the political party he has agreed to be bound by the Constitution and the decision of the party contained in its guidelines and other of its documents.

So that he must comply with the provisions of the party Constitution on how disputes over the internal affairs of the party can be resolved in keeping with the legal doctrine that the internal affairs of a political party are non-justiciable and therefore not subject to the judicial powers of Courts. Even where a statute expressly confers on him a right of action in Court over any aspect of the internal affairs of the party, he cannot exercise that right without first invoking and exhausting the internal dispute resolution mechanisms of the party prescribed in the political party Constitution.

With respect to elections under the Electoral Act, Section 87 (9) of the Electoral Act 2010 (now Section 84 (14) of the Electoral Act 2022) gives an aspirant in a primary election of the candidate of a party, the right of action in Court to complain that the Constitution or Guidelines of the political party was not followed in selecting or nominating his co-aspirant as candidate of the party for a general election and gives the Court jurisdiction over a very narrow part of the internal affairs of a political party relating to nomination or selection of its candidate for an election.

An aspirant cannot exercise that right of action without first exhausting the internal mechanisms for resolving disputes arising from primary elections over nomination or selection of the party’s candidate prescribed in the Guidelines or Constitution of the party as part of its process of selection of its candidates. This is because the internal mechanisms for resolving disputes arising from party primaries is part of the process of selecting the party’s candidates for general elections.

Local Government Council election in Nasarawa State conducted under the Nasarawa State Local Government Elections Law is not an election under the Electoral Act. In the absence of any provision of the Nasarawa State Local Government Election Law or any statute creating such a right to sue concerning the selection or nomination of a candidate of a political party for a State Local Government Election or giving a Court the jurisdiction to entertain such a suit, the right to bring such suit and the jurisdiction to try such suit does not exist.

A personal right of action over the internal affairs of a political party does not exist except in respect of violation of contractual rights. A right of action in Court over the refusal of a political party to nominate or select one as its candidate for an election does not exist unless it is expressly created or given by statute. Also the judicial power of a Court does not extend to the determination of disputes over internal affairs of a political party as a voluntary organization, except where a statute expressly extends such power to such matter.

So unless jurisdiction is expressly conferred on a Court over the selection or nomination of a political party’s candidate for an election, which is part of its internal affairs, it has no such jurisdiction. See Onuoha v Okafor (1983) 2 SCNJ 244, PDP & Ors V Sylva & Ors, Dalhatu V Turaki (2003)15 NWLR (Pt843) 310, Ugwu V Ararume (2007) 12 NWLR (Pt 1048) 367, Akpan V Bob (2010) (1) NWLR (Pt 1223) 421 and Adeogun V Fasogbon (2011) 2 & 3 M3SC (Pt. 2) 103 at 134.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Section 87(9) of the Electoral Act 2010 as amended (it is now Section 84(14) of the Electoral Act 2022) has created a right of action over the selection of the candidate of a political party for an election under the Electoral Act and vested it on an aspirant who is not satisfied with the selection or nomination and also extended the judicial power of the Court to entertain an action brought by such aspirant challenging such selection or nomination of a candidate for an election under the Electoral Act.

The right of action and the jurisdiction of Court is limited to the part of the internal affairs of a political party concerning the selection or nomination of its candidate for an election under the Electoral Act. This case is about the primary election or selection or nomination of APC candidate for the 6-10-2021 general election of chairman of Nasarawa Eggon Local Government Council held under the Nasarawa State Electoral Law.

Since the nomination of candidate is not for an election under the Electoral Act, Section 87(9) of the Electoral Act 2010 as amended (it is now Section 84(14) of the Electoral Act 2022) is not applicable to it.

Judgment

EJEMBI EKO, J.S.C.(Delivering the Leading Judgment): The Respondents were the Plaintiffs, at the trial Court. At their suit, inter alia, for declaration of title; the trial Court (per S. A. Adebajo, J.) on 21st July, 2001 affirmed the title of the Respondents in and over the disputed land. The Appellants were the defendants at the said trial High Court of Lagos State holden at Ikeja.

Notwithstanding the trial Court adjudging the Appellants as trespassers on the disputed land and its order of perpetual injunction restraining them jointly and/or severally from committing further acts of trespass on the land the subject matter of this appeal, the Appellants, as defendants, remain on the land defiantly, albeit contemptuously.

In January, 2002 the learned trial Judge, S. A. Adebajo, J, finding that the defendants/Appellants were adjudged trespassers refused to grant an order staying the execution of his judgment in their favour. The application for stay of execution pending appeal was then dismissed.

The purported appeal, on which the application for stay of execution pending the determination of the appeal, was premised on the Notice of Appeal filed on 10th August, 2001 containing only one ground; the omnibus ground complaining that “the judgment delivered on 27th day of July, 2001 is against the weight of evidence” as the only or sole ground of appeal. The Notice was settled by “TAIWO AJALA & Co”.

After Adebajo, J dismissed the application for stay of execution pending the determination of appeal; the lower Court on 28th October, 2002, upon further application of the Appellants, granted them a stay of execution for one year only to enable them expeditiously prosecute their appeal. The order for conditional stay had since November, 2003 lapsed. The Appellants later again, approached the Court of Appeal (the lower Court) to extend the said order.

The lower Court, satisfied that the Appellants had “not shown seriousness to prosecute this appeal” and that (‘it is not in the interest of justice to extend the earlier grant” of conditional stay of execution, dismissed the application on 1st December, 2003. The Appellants continued to stay put on the land in dispute in defiance of the order of perpetual injunction slammed on them by the trial Court.

​The Appellants would not pursue the diligent prosecution of their appeal. They had not, in 2008, transmitted Records for the hearing of the appeal. On 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of the Court of Appeal Rules, 2007, dismissed the appeal for indiligent prosecution: the Record of Appeal for the hearing of appeal (notice of which was filed on 10th August, 2001) having not been transmitted 7 years after. The order dismissing the appeal remains extant; subsisting and binding on the parties just like the judgment and orders of the trial Court.

The Appellants, subsequently, resorted to filing multiple applications on 5th February, 2009, 14th April, 2009, 7th July, 2009, 30th September, 2009 etc; which motions were freely withdrawn, and accordingly they were struck out by the lower Court on 19th January, 2010. The two motions filed on 14th April, 2009 seeking leave to amend the Notice of Appeal and extension of time within which to compile and transmit Records were in the first place filed in pretension that the appeal had not been dismissed for indiligent prosecution.

​Several motions were since filed by the Appellants at the lower Court. It is in respect of the motion filed on 26th September, 2012 that the lower Court’s ruling on it has become the subject of this appeal. The Appellants in the said motion sought the following reliefs: 1. “An order of this Honourable Court for extension of time within which the Applicants/Appellants may seek the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No.

ID/2595/92 between the above parties. 2. An order of this Honourable Court granting the Applicants/Appellants the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties. 3. An order of this Honourable Court for extension of time within which the Applicants/Appellants may appeal against the decision delivered by Honourable Justice S. A.

Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties. 4. An order granting leave to this Honourable Court to the Applicants/Appellants to raise a fresh ground of appeal in the Notice of Appeal.

The lower Court delivered its decision on the said motion, filed on 26th September, 2012. C. E. Iyizoba, JCA expressing the unanimous opinion of the Court stated inter alia: The reasons given by the applicants for the delay are simply too frivolous to be given any serious consideration. They compiled record of proceedings that were not legible and waited for the Court to say so before they went back to compile legible records; another motion for departure filed on the 15th March, 2005 was thrown out for the same reason that some pages of the record were not clear.

As submitted by learned counsel for the respondent in his written address, the same reasons were adduced and totally rejected when the said Notice of Appeal originally filed was dismissed by this Court. Adamu JCA, OFR observed as follows:- “After hearing the parties, we are of the view that the appellants in the present appeal (which is 2002 appeal) have not been diligent in the prosecution of the Appeal.

The appellant counsel have admitted that this Court in refusing his application to extend our order for stay of execution in their favour had since 2002 directed them to be diligent in the prosecution of their appeal which up till now they have not complied with; the other reason for their delay in the compilation of record namely that they could not obtain a legible copy of the newspaper exhibits they annexed to the said proposed record is shallow excuse because as it is they do not need to make it as part of the record.

If they want to refer to it, they can do so as an exhibit, the original of which is normally forwarded to the Court when the record have been compiled either through the registry or by a departure from the rules …” The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal while they continued selling the property already adjudged not to belong to them.

I agree with the Respondent that granting this application for extension of time within which to apply for leave to appeal after the applicants had frittered away the 13 years available to them to pursue their appeal would be greatly prejudicial to the respondent. l am of the firm view that the applicants failed to show good and substantial reasons for failure to appeal within time. Although a proposed Notice of Appeal was exhibited which on the face of it may satisfy the second condition, having failed to satisfy the Court on the first condition, I hold that this application lacks merit.

It is hereby dismissed with N20,000.00 costs against the Applicants and in favour of the Respondent.

The decision was delivered on 18th November, 2014. Against the decision the Appellants appealed as of right on four (4) grounds of appeal. Out of these 4 grounds of appeal only Ground 3 complaining that the Appellants were denied fair hearing appears to be valid and competent for the purpose of invoking the jurisdiction of this Court by dint of Section 233(2)(c) of the Constitution – enabling an appellant complaining that his right guaranteed under Chapter IV of the Constitution has been violated to appeal as of right.

​Grounds 1, 2 & 4 in the purported Notice of Appeal filed on 24th November, 2014, raising questions of pure facts, require leave first sought and obtained under Section 233(3) of the Constitution to be competent. The said grounds filed as of right, without the mandatory leave, are incompetent and accordingly struck out. Issues 1 and 2 formulated from the incompetent grounds 1, 2 & 4 are therefore incompetent and are hereby struck out.

​My Lords, I had earlier in this judgment pointed out that on 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of its extant 2007 Rules, had dismissed the appeal of the Appellants (filed on 10th August, 2001). The appeal dismissed was appeal No. CA/L/37/2002, notice of which was filed to challenge the decision of the trial Court delivered on 27th July 2001 in the suit No. ID/2595/1992.

Notwithstanding the several numbers appearing on the Appellants’ processes; that is CA/L/37/2002; CA/L/619/2020, CA/L/619M/2002 and CA/L/704/2018 the fact remains that this appeal is the continuation of the suit No. ID/2595/1992 in respect of which the High Court of Lagos State, sitting at Ikeja (coram: S. A. Adebajo, J.), delivered its final judgment on 27th July, 2001.

In its judgment, particularly at pages 759 & 760 of the Record, the lower Court was not in any doubt that its decision delivered on 18th November, 2014 was in relation to the judgment of the trial Court delivered on 27th July 2001 (in the suit No. ID/2595/1992).

The effect of the lower Court’s order dismissing the appeal No. CA/L/37/2002 on 25th February, 2008 is that the life of that appeal had been extinguished and terminated and that the said appeal had been removed from the cause list of the lower Court: KRAUS THOMPSON ORGANISATION v. NIPPS (2004) 17 NWLR (pt. 901) 44 (SC) at 59. Unless the order of dismissal was set aside or quashed by a Court of competent jurisdiction, no Court has jurisdiction to revive or resuscitate it: BABAYAGI v. BIDA (1998) 2 NWLR (pt. 538) 367; INEC & ORS v. PRINCE CHIJIOKE B.

NNAJI & ANOR (2004) 16 NWLR (pt. 900) 473 at 482; ASALU v. DAKAN (2006) ALL FWLR (pt. 325) 90, KRAUS THOMPSON ORGANISATION v. NIPPS (SUPRA).

In the instant case the lower Court having become functus officio, by its earlier order dismissing the appeal; it lacked jurisdiction to deal with the matter vide of the Appellant’s subsequent application filed on 26th September, 2012 – the ruling on which is the subject of the instant appeal:OLOWU v. ABOLORE (1993) 5 NWLR (pt.293) 255 (SC) at 270; FBN PLC v. TSA IND. LTD (2010) LPELR – 1283 (SC).

In effect, the appeal having, on 25th February, 2008, been dismissed, and the dismissal order subsisting having not been set aside, there was no longer any lis pendens on which any interlocutory application may be predicated upon: YONWUREN v. MODERN SINGS (NIG) LTD (1985) LPELR -3529 (SC). It may be argued, though puerile in the circumstance, that the Appellants, by their motion filed on 26th September, 2012, seeking inter alia extension of time within which to appeal against the decision of trial Court delivered on 27th July, 2001 in the suit No.

ID/2595/1992, were seeking leave to lodge fresh appeal. An appeal within an appeal is bad enough particularly both appeals are against a single final decision. The latter may be an abuse of process. It becomes worse when the latter appeal hangs on the earlier incompetent appeal. Like a coat on a hanger, once the hanger collapses the coat falls with it. It was held in ADERIBIGBE v. ABIDOYE (2009) LPELR – 140(SC) that once the notice of appeal is incurably defective or incompetent, no additional grounds of appeal can hang on it.

A defective or incompetent notice of appeal cannot be remedied or redeemed since it is dead on arrival, that is void ab initio. The application filed on 26th September, 2012 was brought in the appeal that had since been dismissed and notionally removed from the cause list of live appeals. The Appellants naturally should expect a new sprouting wine to burst the old discarded wine skin bottle.

The Appellants could not legitimately bring this application in or under the appeal that had since been dismissed, the lower Court having become functus officio by the fact that the same lower Court had on 25th February, 2008, dismissed the earlier appeal against the same decision involving the same parties. The dismissal order, remaining extant, subsisting and binding on the parties herein had foreclosed the steps being taken in the said application. By that fact the application was, itself, clearly an abuse of the process of the Court.

The lower Court seemed to acknowledge the fact that the Appellants’ earlier appeal had been dismissed and there was no longer any pending appeal. It alluded, at page 770 of the Record in its ruling, to the fact that “the appeal originally filed was dismissed by this Court”. Commenting on the despicably reprehensible conduct of the Appellant, the lower Court continued – The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal.

The motion filed on 28th September, 2012 was filed in the appeal that had since been dismissed for want of prosecution. (i.e. failure to transmit Record for the hearing of the appeal). The Appellants did not avail themselves of Order 8 Rule 20 of the Court of Appeal Rules, 2007 for the appeal to be restored. The Appellants motion filed on 28th September, 2012 was brought in nicodemusly, or in surreptitious manner, to revive the dead appeal. In the circumstance the dismissal order remains final. They were thus placing something upon nothing and expecting it to stand. It will not.

​The net summary of all I have been saying is that from the incompetent application (of 28th September, 2012) no competent decision arose therefrom to warrant the complaint of the Appellants that they were denied fair hearing (which even on the merits it does not lie in their mouth to so complain as the Records clearly show that the lower Court duly and fairly considered the affidavits and written addresses of the parties, respectively filed and exchanged, in its ruling the subject of this bogus appeal).

The findings of fact by the lower Court, at pages 851 – 855 of the Record, that the application was frivolous, mischievous and that for 13 years after the judgment of the trial Court, the adjudged trespassers had engaged themselves in one frivolous application or the other which they repeatedly withdrew while at the same time or contemporaneously they were continuing their illegal occupation of the disputed land, parts of which they were illegally selling in the pretext of a pending appeal were not challenged in any viable ground of appeal.

​Even if this appeal were competent; the Appellants did not establish, in any satisfactory manner, that they were denied fair hearing by the lower Court in the procedure, the application was filed on 28th September, 2012 and the decision on it was delivered on 18th November, 2012.

It is incumbent on every appellant to establish the error of the Court below he complained of in his appeal; the burden being an extension of the principle of law placing the burden on whoever asserts the existence of facts he alleges to establish same in order to be entitled to judgment on the said assertion: Sections 131 and 132 of the Evidence Act, 2011. Every judgment, prima facie being correct on the presumption of regularity the burden of showing the contrary is on the appellant: BHOJSON PLC v. DANIEL – KALIO (2006) 2 SC (pt. II) 91 citing with approval WILLIAMS v.

JOHNSON (1937) 2 WACA 248; KISOEDU & ORS v. DOMPREH & ORS (1935) 2 WACA 264; FOLORUNSHO v. ADEYEMI 1 NMLR 128. The Appellants throughout the whole gamut of their brief of argument failed to show or establish in what way(s) the decision complained of (if any) violated their right to fair hearing.

In view of all I have been saying; this appeal is a mere exercise in gross and frolic, some abuse of the Court’s process and accordingly it is hereby dismissed. The down right shenaniganism of the Appellants and their counsel, Chief Taiwo Ajala which smacks of outlawry has got to stop. Accordingly, the Appellants, their agents, privies and predecessors-in-title, in respect of or in relation to the land in dispute, shall forthwith vacate the land.

Their counsel, Chief Taiwo Ajala shall within 21 days from today depose, under his hand, on affidavit verifying the Appellants’ compliance with the order directing them to forthwith vacate the disputed land and the affidavit, filed at the trial Court in the suit No. ID/2595/1992, shall be served on the Respondents through their counsel.

The Respondents are entitled to the needless costs they had been made to throw away defending this mischievous and malevolent appeal. Accordingly, costs assessed at N3,000,000.00 shall be, and are hereby, awarded against the Appellants, jointly and severally, in favour of the Respondents. The appeal, a clear and gross abuse of Court’s process is dismissed in its entirety.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The popular adage is that you cannot place something on nothing and expect it to stand. See: Skenconsult Vs Ukey (1981) 1 SC 6; Madukolu Vs Nkemdilim (1962) 1 SCNLR 341; U.A.C Ltd vs Mcfoy (1961) 3 ALL ER 1169. The appeal filed by the appellants at the Court below against the judgment of the trial Court in ID/2595/92, was dismissed on 25/2/2008 under Order 8 Rule 18 of the Court of Appeal Rules, 2007, for failure to compile and transmit records. Order 8 Rule 20 of the said Rules provides: “20.

An appellant whose appeal has been dismissed under this rule may apply by notice of motion that the appeal be restored, and any such application may be made to the Court, who may in its discretion, for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.” A careful perusal of the record of appeal reveals that the appellants, in an attempt to comply with Rule 20 above, brought an application filed on 30/9/2009 to restore the appeal.

The said application was struck out for incompetence on 19/1/2010, as there was no competent notice of appeal upon which the record could be predicated. No other effort was made to restore the dismissed appeal. The order of dismissal therefore remains valid and subsisting. ​As noted by my learned brother, Ejembi Eko, JSC, in the lead judgment, with the dismissal of the appeal on 25/2/2008, there was no appeal in existence in respect of which subsequent applications could have been filed.

The series of applications filed, seeking extension of time to seek leave to appeal, including the motion on notice filed on 26/9/2012, which gave rise to the ruling now appealed against, were all exercises in futility. It is evident, as elaborately chronicled by my learned brother, that the appellants had no desire for the appeal to be heard. They remained defiantly on the land in dispute, disposing of same, while filing numerous frivolous and incompetent motions to revive what was already dead.

It smacks of unethical conduct for counsel to continue to clog the Court’s docket with useless applications aimed at frustrating the respondents from reaping the fruit of their well-earned judgment. Such conduct must be and is hereby deprecated in no uncertain terms. I agree with my learned brother that this appeal is an abuse of the Court’s process and deserves to be dismissed with substantial costs. I also dismiss the appeal with N3,000,000.00 costs awarded against the appellants and in favour of the respondents.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, Ejembi Elco, JSC, in this appeal and completely agree that for the reasons set out therein, the appeal is undoubtedly vexatious, oppressive and deliberately used, on the pretext of exercising the right of appeal, to pervert the course of justice and over-reach the Respondents, by the Appellants who have been in an unmitigated contempt of the extant judgment of the trial High Court for about twenty (20) years now.

Enough is enough and it is now finally over as I join in dismissing the appeal in terms of the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having read, before now, the draft of the judgment just delivered by my learned brother the Hon, Justice Ejembi Eko, JSC, I have no hesitation whatsoever in concurring with the reasoning reached therein to the conclusive effect that the instant appeal is clearly a gross abuse of Court process. Hence, I too hereby dismiss the appeal in the entirety thereof, and abide by the consequential orders made in the judgment.

TIJJANI ABUBAKAR, J.S.C.: Following judgment of the lower Court, the Appellants filed endless applications for leave to appeal, all the applications had one defect or the other, the Appellants/Applicants exhausted a total number of thirteen years trying to package one valid appeal.

The Appellants/applicants were granted one year stay of execution to file their appeal, they failed to appeal and kept on filing frivolous and vexatious applications for leave to appeal, while at the same time selling the land, subject matter of litigation. The suit at the trial Court started on the 16th day of October, 1992, up to the 24th day of November, 2014, they were still at the stage of obtaining leave to appeal.

I read the judgment of the lower Court thoroughly and the part of the judgment delivered by IYIZOBA, JCA reads as follows: “The story told by the applicants differed. They claimed that after the Notice of appeal was struck out, they filed a trinity application praying for extension of time for leave, leave and extension of time to appeal against the Judgment of Adebajo J, on 27th July 2001, via a motion on notice dated the 22nd of February, 2010 with appeal No. CA/L/162M/2010 barely a month after the notice of appeal was struck out.

They claimed that the Court saw the application was defective the prayer not having included the name of the Judge at the trial Court and same was withdrawn and struck out on the 9th of June 2010. Another trinity application date 11th June 2010 was filed in accordance with the Courts directive and same Was also held to be defective having not contained the suit number at the trial Court and the parties involved in the prayer. The applicants also withdrew the same application and same was struck out on the 6th of March 2011.

They claimed that being desirous to see the end of the appeal on the merit, they filed another application dated the 25th of March 2011 which was also withdrawn and struck out on the 24th if September 2012 for not containing the grounds on which the application was brought. They finally filed the present application on the 26th day of September, 2012.

Above is the conduct of the applicants, they made every effort to irritate the lower Court, they exhausted the patience of the Court, they filed several frivolous applications for leave deliberately defective just to retain their hold over the properly.

At page 770 of the records of appeal, the lower Court finally held as follows: “…The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal while they continued selling the property already adjudged not to belong to them. I agree with the Respondent that granting this application for extension of time within which to apply for leave to appeal after the applicants had fritted away the 13 years available to them to pursue their appeal would be greatly prejudicial to the Respondent.

I am of the firm view that the applicants failed to show good and substantial reasons for failure to appeal within time.

My learned brother, EKO, JSC clearly set out the outrageous conduct of the Appellants in this appeal, I entirely agree with the lucid Judgment and adopt it as mine. I also endorse all consequential orders including the order on costs. I also agree that Appellants’ appeal is a gross abuse of process deserving of instant dismissal. It is dismissed.

Judgment

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): On 16th May, 2018 the Court of Appeal, Ado-Ekiti Division (the lower Court) delivered judgment in the appeal of the Appellant in which the said lower Court affirmed the conviction of the Appellant, and death sentence imposed on him, for murder. The opinion of the lower Court prepared and delivered by AHMAD O. BELGORE, Presiding Justice, was unanimously concurred by FATIMA OMORO AKINBAMBI and PAUL OBI ELECHI, JJCA. This further appeal is against the said decision.

The uniqueness of the judgment appealed warrants my having to set it out, clearly, in its three active components. Firstly, at pages 204 – 207 of the Record, the Notice of Appeal against the decision of the trial Court containing 4 grounds of appeal, was set out verbatim thus: It is against the decision of the High Court, that the appellant has appealed to this Court. Pursuant to the leave of this Court granted on the 16th day of October, 2017, on Amended Notice of Appeal contained four Grounds of Appeal was filed on the 26th day of October, 2017.

The four grounds of appeal are – GROUND 1 (ONE) ERROR IN LAW ​The learned trial Judge erred in law when he relied on the evidence of Prosecution witnesses who are not eye witnesses to the commission of crime in convicting the Appellant of the offence of Murder. PARTICULARS OF ERROR 1. The only eye witness was PW3 whose evidence was not corroborated by any other person. 2. The evidence of PW3 before the Court shows that PW3 is a tainted witness having alleged that she was almost killed by the Appellant who in any event did not assault, bear or done any harm to PW3. 3.

There was no legally admissible evidence on which the Court could hinge the guilt of the accused person for which reason the Court did not consider the evidence before the Court but decided the guilt of the accused person hearsay evidence. GROUND 2 (TWO) The learned trial Judge erred in law when he convicted the Appellant of Murder despite the failure of the Prosecution in discharging the burden of proof beyond reasonable doubt as the evidence adduced is insufficient to ground or sustain the ingredient of a Murder charge. PARTICULARS OF ERROR 1.

It is evidence that the alleged crime for which the Appellant was convicted was not witnessed by any of the Prosecution witnesses, yet the Court convicted the Appellant on the evidence of PW3 without corroboration. 2. The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police discharges the Prosecution of Mandatory burden of proof beyond reasonable doubt in a criminal trial. 3. The evidence adduced by the Prosecution against the Appellant which the Court believed and based its decision no conclusion based on law.

GROUND 3 (THREE) ERROR IN LAW The entire trial as it relates to the Appellant is a nullity, the trial having been conducted against the Appellant’s right to fair hearing. PARTICULARS OF ERROR 1. The law is that the Court is bound to consider any defence offered by any accused person in a criminal trial, this the Court failed to do in this case. 2.

The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police make their evidence not reliable and therefore liable to rejection in clear breach of law and judicial authorities that an accused person cannot be condemned unheard.

The second phase of the judgment of the lower Court has therein set out and reproduced the respective issues distilled from the 4 grounds of appeal at pages 207 – 208. That is – ISSUE No. 1 Whether the Court was right in convicting the Appellant of Murder in the absence of any legally admissible evidence. This issue covers ground 1 (one) of the grounds of Appeal. ISSUE No. 2 Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder. This issue covers ground 2 (two) of the grounds of appeal.

ISSUE No. 3 Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. The issue cover ground 3 (three) of the grounds of appeal. The Respondent distilled a sole issue for determination, viz – Whether the Appellant was not properly convicted of the offence as charged by virtue of the evidence adduced and admitted at his trial before the lower Court? [ground 1]

​Then comes the consideration and the brisk, albeit brief and foggy decision on the issues, as follows at pages 208 and 209. That is- Issue No. 1 The lower Court (sic – was) right in convicting the Appellant of murder, based on legally admissible evidence. Issue No. 2 The prosecution discharged the mandatory burden of proof imposed on it by law and the conviction of the Appellant for murder is justified. Issue No. 3 The learned trial Judge considered the evidence of the Appellant and his witness. He appraised same and came to right decision.

I do not see any reason whatsoever to annul the trial and the convicting (sic) of the Appellant.

All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed. The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed. ​ It is this brisk and brief judgment (in a style most unusual of a superior Court) that the complaints of the Appellant, in this further appeal, are directed. The Notice of Appeal has 4 grounds of appeal. In the Appellant’s Brief, Mr.

Tunde Adeoye of the Appellant’s Counsel formulated three issues from grounds 1 – 3, ​abandoning ground 4 – the omnibus ground. I hereby adopt the 3 issues formulated by the Appellant’s Counsel. They read: 1. Whether the Court of Appeal was right in affirming the conviction of the Appellant for murder by the trial Court in the absence of any legally admissible evidence? This issue covers ground 1 (one) of the grounds of appeal. 2. Whether the Prosecution discharged (the) mandatory burden of proof imposed on it by law so as to justify the conviction of Appellant for murder?

This issue covers ground 2 (two) of the grounds of appeal. 3. Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and the evidence by his witness? This covers ground 3 (three) of the grounds of appeal.

​Ground 3 of the grounds of appeal, from whence issue 3 was allegedly distilled, does not have particulars of “any defence offered by” the Appellant at the trial which “the trial Court failed to do (consider) and the learned Justices of the Court of Appeal held that the right of the Appellant was not breached by the trial (Court)”. The Appellant’s counsel does not appear learned enough in this type of “jedi-jedi” advocacy. In the Appellant’s Ground 3, in the Amended Notice of Appeal at the lower Court, Mr.

Tunde Adeoye of the appellant’s counsel made the bald statement of complaint that “the entire trial as it relates to the Appellant is a nullity, the trial having been conducted against right to fair hearing”. The said Ground 3 was without particulars, albeit insufficient, that would have put the Respondent on the notice of this alleged infraction of the Appellant’s right to fair trial by the trial Court. ​ The notice of the case a party is going to meet for him to plan adequately how to answer or defend it is the very essence of audi alteram partem principle in fair hearing or natural justice.

As the prosecution has no right to deny the defence audi alteram partem so also the latter the former. Denial of a party of his right to audi alteram partem is, no doubt, an infringement of the other’s right to fair trial or hearing guaranteed by Section 36 of the 1999 Constitution, as amended. The Courts of law and justice frown at a party in litigation laying ambush on his adversary. It is jurisprudentially unwholesome.

On this note, I am of the firm view that the ground of appeal, from which issue 3 has been formulated for the determination of this appeal is, like the said issue 3, incompetent. Both the ground 3 and issue 3, shall be, and are hereby, struck out. No where in the judgments of the trial Court and the lower Court did this bogus issue of alibi and the defence evidence on it arise. In any case, the credible evidence of PW.1, PW.2, PW.3, PW.4 and PW.5 – eye witnesses, believed by the trial Court would not let any alibi being flaunted by the Appellant fly. The issue is a non-starter.

The remaining two issues come down to whether the guilt of the Appellant was established beyond reasonable doubt at the trial Court to warrant the lower Court affirming it. Clearly, the further appeal is against the concurrent findings of fact. The Appellant, in the circumstance, is enjoined to show that the concurrent decisions were perverse or unreasonable. The Apex Court will not, as a principle, lightly interfere with concurrent findings of fact: OMETA v. NUMA (1934) 11 NLR 18.

In otherwords, in the absence of special reasons the Apex Court will not review concurrent findings of fact or the facts at the trial the third time:-ASSACHERE v. DADIASE (1945) 11 WACA 1. It is on this principle that a derivative principle evolved to the effect: that concurrent findings for facts of the Courts below prima facie entitle the respondent to an order dismissing the appeal against findings of fact: ADANSI v. BRENASE P. C. No. 23 of 1953; (1956) 1 W. A. L. R 6 (Ghana).

Putting it rather bluntly: except where there are special circumstances, the Apex Court will not permit a question of fact to be re-opened where there had been concurrent findings of fact on it: DAWODU v. DANMOLE (1962) 1 ALL NLR 702.

This, instant appeal, however, is an appeal challenging the conviction of the Appellant for murder that the lower Court had affirmed. Section 233(2)(d) of the Constitution, as amended, offers constitutional exception to this general principle when it confers on the appellant the right to appeal as of right to this Court, the Apex Court, to challenge his conviction for capital offence and/or death sentence. I shall, therefore, do evaluation of some of the salient or material facts.

​The summary of the five material witnesses called by the respondent is that the Appellant, as the 1st Accused, was fixed physically to both the scene, the locus criminis, and the alleged murder.

The PW.1, a Police Inspector, who was at the scene at the material time, testified, undiscredited, that the Appellant and the co-accused were among the lynch mob that invaded the Police Station to lynch the PW.4 and the two Fulani men.

The three had been rescued and put into the Police cell in a protective custody. The mob led by the Appellant and the co-accused, over powering the police personnel, broke into the cell. The PW.2, another Police officer, was categorical and undiscredited. He testified that the Appellant was at the scene of the mob attack at all material times.

The PW.5, the investigating Police officer, recorded the Appellant’s extra-judicial statement, Exhibit 3.02. It was a confessional statement admitted in evidence inspite of objection. The Ruling dismissing the objection, not appealed, remains unchallenged, extant, subsisting and binding on the Appellant, just as the confession Exhibit 3.02. ​ The PW.3, the mother of PW.4, rushed to the police station on hearing that the PW.4 was being attacked by the mob at the Police station. She saw the Appellant lead the lynch mob.

The PW.3 was categorical that the Appellant, The 1st Accused hit the man with the white and black T-Shirt with the axe … The man with the White and Black T-Shirt was beaten to death by the 1st Accused and others.

She was not discredited under cross-examination nor by any other piece of evidence. The trial Court believed her, and the lower Court affirmed the finding of fact. The concurrent findings are not perverse or unreasonable. They are premised on credible legal evidence. ​ The PW.4 was conveying the two Fulani men (including the one wearing “white and black T. Shirt). The three were waylaid and thoroughly beaten. They were rescued and taken to the police station. He saw the 2nd Accused lead the lynch mob into the police station. The mob later brought out the two Fulani men from the cell.

He saw the 2nd Accused personally smash the head of one of two Fulani men in the most, horribly, gory manner. The man died. The Appellant and the said 2nd Accused remained active in the criminal partnership throughout. The Appellant, in this further appeal, does not contest the fact that the two Fulani men were brutally killed. The fact of their death through some unlawful or illegal mob action is not in dispute.

The cumulative of the totality of the evidence of the PW.1, PW.2, PW.3, PW.4 and PW.5, together with the Appellant’s confessional statement, Exhibit 3.02, constitute the corpus of the legal evidence believed by the trial Court in the conviction of the Appellant for the gruesome murder of the two Fulani men alleged. The Appellant admitted to the PW.5 that he was at the scene of crime – that admission actively should discredit any unfounded alibi.

The totality of the evidence established that the Appellant had the opportunity of committing the alleged crime, and he did actually commit it: UBANI v. THE STATE (2004) FWLR (Pt.191) 1533 at 1546.

I agree with the learned Attorney-General of Ekiti State, Mr. Fapohunda, that the proof of the guilt of an accused person can be sustained on the following evidence, jointly and/or severally, that is – i. the confession of the accused; ii. circumstantial evidence; and/or iii. evidence of eye witnesses of the crime;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

LORI v. THE STATE (1980) 8 – 11 SC 81 MAIGARI v. THE STATE (2010) FWLR (Pt. 546) 505.

I find neither perversity nor unreasonableness in the concurrent findings of fact this appeal is directed against. The Appellant has also not been able to show any miscarriage of justice occasioned by the concurrent findings of fact. His conviction for Murder affirmed by the lower Court in the unusually very foggy brisk, brief and scanty judgment is hereby further affirmed.

The appeal, lacking in substance, is hereby dismissed in its entirety. Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to register the support in the reasonings from which the decision arose, I shall make some comments. ​ This is an appeal against the judgment of the Court of Appeal, Ado Ekiti Division or lower Court or Court below, Coram: Ahmad O. Belgore, F.O. Akinbami and P.O. Elechi JJCA, delivered on the 16th day of May, 2018 affirming the conviction and sentence to death of the appellant by the High Court sitting at Omuo after on the 16th June 2016 per A. Adesodun J.

The detailed facts leading to this appeal are well set out in the lead judgment and I shall not repeat them save for when a reference to any part thereof becomes necessary.

On the 23rd September, 2021 date of hearing, learned counsel for the appellant, Tunde Adeoye Esq adopted the brief of argument filed on 3/1/2019 and therein raised three issues for determination, viz: ISSUE NO. 1 Whether the Court of Appeal was right in affirming the conviction of the Appellant for murder by the trial Court in the absence of any legally admissible evidence. This issue covers ground 1 (One) of the grounds of Appeal. ISSUE NO. 2 Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder.

This issue covers ground 2 (Two) of the grounds of Appeal. ISSUE NO. 3 Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. This issue covers ground 3 (Three) of the grounds of Appeal.

​I shall utilize Issue 2 of the respondent as a sole issue since it is sufficient in itself to encapsulate all the questions raised on either side.

SOLE ISSUE Whether the respondent has proved its case against the appellant beyond reasonable doubt.

Learned counsel for the appellant submitted that the evidence of PW2, PW4 and PW5 are not the evidence of eye witnesses as they gave evidence based on what they heard which make their evidence hear-say. That the evidence relied upon by the trial Judge are not legally admissible evidence since they were hearsay evidence and cannot sustain the charge of murder. He cited Iniabasi Okon Uweh v. The State (2013) All FWLR (pt. 679) 1089 etc.

That the evidence of PW3 is unreliable and ought not be used or relied upon in linking the death of any of the deceased person to the appellant. He referred to Alhaji Muazu Ali v. The State (2015) All FWLR (pt. 796) 559. Learned counsel for the appellant contended that the PW3 is a tainted witness and his evidence cannot be corroboration of the evidence of the PW1, PW2 and PW5 which evidence is inadmissible. He cited State v. Gwangwan (2015) 13 NWLR (pt. 1477) 609-610.

​He stated that there was no independent evidence to corroborate that of the PW3, and doubts exist which make it difficult for the Court to hold that the prosecution has proved its case beyond reasonable doubt. He cited Sheidu v. The State (2014) 9 SCM 195 etc.

For the appellant, it was contended that the failure of the trial Court to consider the defence of alibi raised by the appellant is a grave error on which account it is a breach of fundamental right of the appellant to fair trial and therefore fatal. He relied on Tajudeen Iliyasu v. The State (2015) All FWLR (pt. 793) 1965 etc.

Learned Attorney General for the respondent submitted that the scenario painted by the appellant and the respondent’s witnesses showed the appellant attacked and killed the victim in the crowd though he was specifically identified as being responsible for the death of the deceased. He cited Ubani v. State (2004) FWLR (pt. 191) 1533 at 1546 etc.

That the mere fact that PW3 was a blood relation of the deceased did not render his evidence inadmissible or have him termed a tainted witness. He cited Nwaogu v. The State (1992) 7 NWLR (pt. 254) 421 at 439 etc.

​For the respondent, it was submitted that the defence of alibi is unassailable not only that it was raised for the first time at appellant’s defence but the fact that the available evidence of the prosecution witnesses pinned the appellant at the scene of crime at the time material.

In the Court’s duty of resolving the question of whether an accused is guilty of the offence charged, it has been guided by certain parametres which are the following: a. The confession of the accused b. Circumstantial evidence; and c. Evidence of eye witness of the crime. See Lori v. State (1980) 8 – 11 SC 81; Maigari v. State (2010) All FWLR (pt. 546).

Placing in context the case in hand in relation to the guides above stated, the appellant has by the strength of his confessional statement marked exhibit 3.02 not only put himself at the scene of crime but admitted participating in the death of the deceased particularly the killing of the Fulani man dressed in white and black t-shirt as strongly maintained by PW3 who did not shift her position under cross-examination. I shall quote excerpts therefrom thus:- “On getting to Iluomoba, I thought it was my son that was being killed.

I came down from the car and pleaded that my son should not be killed. I saw the 1st accused person (appellant), he carried an axe and a small wood… it was the wood that he used to hit the head of the victim … that victim that was being killed then had on a t-shirt with white and black colour. I can identify the victim’s photograph if shown to me”.

The appellant in the confessional statement mentioned the names of other participants in the perpetration of the killing of the two Fulani men. The appellant testified on oath while giving evidence on behalf of himself and stated that while he was riding his motorcycle towards Ijanmodu, he saw a large crowd and on getting closer, he was informed that an okada rider (commercial motorcyclist) had been arrested. The okada rider (PW4) said “sir! Don’t you know me? I then slapped him and we took them to the police station where I dropped them”.

The PW3 who was also the victim of the appellant, gave and painted a clear account of what she saw and experienced in the hand of the appellant. She stated copiously how she rushed to the police station and was able to recognize the appellant lynching the deceased who was wearing white and black t-shirt while she thought it was her son PW4.

On the evidence of eye witness, add that the PW3 was able to identify the respondent among the crowd while she thought it was her son (PW4) that was being killed. The appellant further made himself known better and clearer to the PW3 when he left the deceased and wanted to attack the PW3 who at the critical time, took pain to notice that the deceased was having the same hair cut with her son PW4, in her words. “on getting out of the vehicle, the victim being hit had on punk haircut, same haircut with my son and was wearing white sweater so I thought it was my son.

I rushed out shouting the 1st (appellant) made attempt to hit me with the axe in his hand.”

This made his identity to be unshaken as she was able to identify him again in the open Court while in the dock.

​The scenario painted by the appellant and the respondent’s witnesses showed that the appellant attacked and killed the victim in the crowd though he was specifically identified as being responsible for the death of the deceased. It is shown that the appellant had the opportunity to commit the crime and he did commit it. See the case of Ubani v. State (2004) FWLR 191 page 1533 at 15. On a similar scenario, the Supreme Court had held per Mbanefo JSC that: “any who knew the purpose of such a crowd and joined it could not escape responsibility for its action.

It is clear that if two or more persons had formed a common intention to attack another or others with intent to kill or do grievous harm or in a matter likely to endanger human life and have in fact taken together in such an attack or other resulting in death as a probable consequence, all are guilty of murder.” See the case of Amoo v. State (1959) NSCC 91. Clearly, it was the appellant that was responsible for the death of the deceased that was dressed in white and black t-shirt and he cannot exculpate himself from that responsibility. In the case of Ubani v.

State (2003) 18 NWLR (pt. 851), the appellants were charged with the murder of the deceased. The deceased was attacked by the appellants with gun butt, cudgels and cutlass in the presence of his wife and daughter.

As a result of the attack, the deceased died, Edozie J.S.C while dismissing the appeal of the appellant in the lead judgment, had this to say at page 244 of the report:- “that it was the act of his assailants that caused his death and judging from the nature of his attack and the lethal weapons used, the attackers had intention to kill or at least cause grievous bodily harm on the deceased.” (emphasis nine)

It is crystal clear from the facts and evidence of PW3 which is inviolable that the hostile attack and merciless beating of the deceased with the wood in the appellant’s hand culminated in the instant death of the deceased.

On the issue of PW3 being a tainted witness, the appellant admitted that the PW3 and PW4 had no grudge against him. He stated further that he did not know PW3 and PW4 before that day of incident. Record showed that the PW3 was almost a victim of the appellant as he attempted to attack her. Moreover, the PW3 is a competent and compellable witness. ​ The appellant had the opportunity to cross-examine the PW3 on this fact, the PW3 is the mother of PW4.

The mere fact that they share the same blood will not make her a tainted witness unless she has a purpose to serve in the circumstance of this case. The PW3 maintained in her testimony that she saw the appellant lynching the deceased and afterwards he wanted to attack her. That circumstance will not make her a tainted witness to what she felt with her sense organs.

On the strength of the above, the fact that a witness for the prosecution has relationship with the deceased or the victim of the crime charged does make his evidence inadmissible in law. See the case of Nwaogu v. The State (1992) 7 NWLR pt. 254 page 421 at 439.

The argument that the appellant dwelt on that the trial Court based its decision in convicting the appellant has no foundation in law. It is the duty of the Court to ensure prudence in acting on evidence of a single witness and nothing more. The Court has over the years instructed and has given a judicial clarity on evidence of a single witness in the case of Mbenu v.

The State (1988) 3 NWLR pt.84 page 615 at 627 where Nnamani JSC held that: “the requirement that a trial judge should warn himself before convicting on the evidence of a witness tainted by some relationship with the deceased or the victim as one would in the case of accomplice is one dictated by prudence and not by law.” The failure of the trial judge to warn himself will not vitiate the conviction of the appellant. I place reliance on Ekang v. The State (2001) 11 NWLR (pt. 723) page 1 at 25.

I agree with learned counsel for the respondent that the appellant had admitted that the respondent had proved and established two ingredients out of three ingredients to sustain a case of murder against the appellant, whose grouse is that the third ingredient is yet to make the appellant fully responsible for the offence charged. It is easy to conclude that the facts admitted are taken to be the time true state of affairs. See Jammal v.

State (1998) ACLR 530 at 535; Section 123 Evidence Act. ​ On the third ingredient, that the appellant had a grouse against which is the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm would be its possible consequence, the answer rests with exhibit 3.02 which is confessional in nature and shows that the appellant and others conspired and killed the two deceased. That assertion was corroborated by PW3. Therefore the involvement of the appellant to the killing of the deceased was evident. See Oguno v.

The State (2011) 7 NWLR (pt.1246) 314 (CA); Ebeinwe v. State (2011) 7 NWLR (pt. 1246) 402. The appellant clearly knew in the circumstance where and when he was hitting the deceased with wood that caused grievous bodily harm or death of the deceased is possible. See the case of Gira v. State (1996) 4 NWLR (pt. 443).

The appellant had sought to anchor on the defence of alibi which he raised for the first time during the trial. This defence of alibi is one which the accused uses to posit he was elsewhere at the time of the commission of the offence and so could not be at the scene of crime at the material time. See Garba v. State (1999) 11 NWLR (pt. 627) 422 at 439 (CA).

​Inspite of the lateness in bringing up the defence at the trial, there is a surfeit of evidence which has demolished that plea as the available evidence on record fixed him at the scene and precinct of the crime hence he was well trapped to the offence charged. That PW1 had testified that he knew the two accused persons including the respondent and that on the 13/9/2013 after which he had served in that community for 1 year 8 month saw the appellant among the mob that attacked the police station.

He also maintained that the appellant knew him very well and there was no animosity that existed between them. The straw that broke the camel’s back came during the cross examination of the PW1 when he responded that the appellant trekked to the police station carrying a stick.

Further to the above, PW3 was emphatic in her testimony that the appellant flogged her with his belt and showed the Court the mark. She remarked that the appellant on 8/7/2014, 6/7/2014 and 8/7/2014 came with a woman to her house and pleaded that she should not say that he was part of the people that committed that offence and also the Appellant stated he was the one that prevented other people from killing the PW4 (the son of PW3).

PW4 who was able to recognize the Appellant when he came to their house on 6/7/2013 stated that he was there to beg not to implicate him. ​ It is to be noted that the above piece of evidence was not punctured during the blast of cross examination. The appellant did not bring any material evidence to dislodge those assertions. The law is that anybody who fails to cross examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See the case of: OLUDAMILOLA v. STATE (2010)15 WRN 1, ALI v. STATE (2003) 3 ACLR 581.

On the issue of the Court not considering the defence of alibi by the Court. I posit that on the strength of the evidence on that line of argument cannot be considered in law as the law concludes that it is an afterthought or an attempt to ambush the prosecution and same cannot be considered as a serious defence. At best it is liable to be regarded as an afterthought. See the case of IKEMSON v. STATE (1989) 3 NWLR pt. 110 page 455 and the case of GARBA v. STATE (supra).

​The evidence adduced by the PW1, PW3 and PW4 particularly the damaging evidence given against the appellant by PW3 which was not dislodged even under cross examination fixed the appellant to the scene of the crime and also as perpetrator of the crime. It is a well settled law that where an accused person is fixed at the scene of crime, the defence of alibi is demolished and will collapse like a pack of cards. The Supreme Court per: Nnaemeka-Agu J.S.C in the case of OGOALA v.

STATE (1991) 2 NWLR pt. 175 page 509 at page 521 held as follows: “once the duty of the prosecution to disprove the alibi arises in the manner I have stated, they can do that by showing directly that the accused person was wrong in his claim to have been at another place during the commission of the offence charged that his defence of alibi cannot be true” See also GARBA v.

STATE (supra at page 439), THE Court of Appeal held that: “therefore where the evidence of prosecution witnesses had successfully connect the accused person with the commission of the offence charged, his defence of alibi cannot stand” (italic mine).

The respondent called credible witnesses who directly connected and fixed the appellant to the commission of the crime, therefore I resolve this issue against the appellant.

Still on the denial of fair hearing on the witness called by the appellant where he said the Court rejected their evidence as cooked-up, which is the correct summation.

​From the foregoing, the issue is resolved against the appellant whose appeal fails being unmeritorious. I dismiss the appeal as I abide by the consequential orders made. Appeal Dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I completely agree with the lead judgment of my learned brother, Ejembi Eko, JSC, a draft of which was afforded to me, that notwithstanding the very poor quality of the judgment by the lower Court, the Record of Appeal bears compelling, credible and sufficient evidence placed before the trial Court by the Respondent which not only fixed the Appellant at the scene of the murder of the deceased, but proved beyond reasonable doubt that he personally led the mob and physically attacked and killed the … Instantly, at the police station.

The Appellant has failed woefully to show any cogent reason or special circumstances why the Court should disturb or interfere with the findings by the lower Courts on his guilt in the commission of the offence he was convicted and sentenced for. Atoyebi v. Gov., Oyo State (1994) 5 SCNJ, 62, (1994) 5 NWLR (pt. 344) 290, Capital Bancorp Ltd. v. Shelter Savings and Loans Ltd. (2007) 1 SC, 281, (2007) 3 NWLR (pt. 1020) 148, Chinwendu v. Mbamali (1980) 3 SC, 81.

I join in dismissing the appeal for the reasons set out in the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree in toto with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice Ejembi Eko, JSC to the effect that the instant appeal is grossly devoid of merits, thus ought to be dismissed.

Hence, having had the privilege of adopting the reasoning and conclusion in question as mine, I too hereby without much ado dismiss the appeal and uphold the concurrent judgment of the Court below, delivered on May 16, 2018 in appeal No. CA/EK/10C/17.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the Judgment of my learned brother, Lord Justice, EJEMBI EKO, JSC. I completely agree with the reasoning, conclusions, decisions, including the orders therein.

The Judgment of the Court of Appeal merely reproduced the grounds of the appeal before it and the issues raised for determination in the appellant’s brief and then pronounced thusly “All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed. The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed”.

The Judgment did not show how the issues were resolved by it and the reasons for its conclusion that the appeal must fail and the decision dismissing the appeal. The judgment of an appellate Court on grounds and issues complaining that the judgment of the trial Court was wrong having regard to the evidence ought to show a consideration of the evidence in relation to the decision of the trial Court to find out if the complains in the appeal have merit or not.

There is nothing in the judgment that show that the Court of Appeal made even the slightest effort to determine the issues raised for determination before it by considering the evidence in relation to the Judgment of the trial Court. The conclusion that the appeal must fail is not derived from any reasoning. It is just a pronouncement without reasons. ​It is of fundamental importance that reasons be given for conclusions and decision.

This is because it is the reasons that show that the conclusion and decisions are derived from a consideration of the case before the Court and show the reasoning process that resulted in the conclusion and decisions. Without the reasons, the conclusions and decisions would clearly be baseless and perverse. The lack of reasons render the conclusions and decisions products of intuitiveness, irrationality and arbitrariness. See Agbanelo v. UBN Ltd (2000) LPELR – 234 (SC), Doma & Anor v. INEC & Ors (2012) LPELR- 78 22 (SC).

In Obmiami Brick & Stone (Nig) Ltd ACB Ltd (1992) LPELR 21 77 (SC) this Court held concerning the absence of reasons for a dismissal of a claim thusly – “If that dismissal is meant to be, and in fact should be, a Judgment of the Court, reasons must be given. It is not for the appellate Court to speculate why a case was dismissed, non-suited or struck out- The reason for doing so must appear on the record of the lower Court.

It is not a case of decision as canvassed by the appellant, it is in the interest of justice that any party should know why he has lost or won the case” This Court in Ogboru v. Uduaghan & Ors (2012) LPELR – 8267 (SC) held thusly that “It has been stated in Abacha V Fawehinmi (2002) FWLR (Pt.4) 568 that the substance of a judgment of a Court is embodied in its ratio decidendi or ration(s) in the case, that is the reason or reasons for the decision(s) as against mere passing remarks”.

​As it is, this judgment ought to be nullified and the appeal sent back to the Court of Appeal for rehearing.

But, I do not think that course would meet the Justice of this case, considering that the nullification of this judgment would leave the judgment of the trial Court intact and subject the appellant to the inconvenience and expense of such rehearing and since this Court has the power by virtue of Section 22 of the Supreme Court Act 2004 to consider if the decision of the Court of Appeal dismissing the appeal to it and affirming the conviction and sentence by the trial Court is justified by the evidence on record, this Court would consider the evidence on record to find out if the Court of Appeal decision is supported by the evidence.

This task is brilliantly handled in the lead judgment. I agree with the views on the evidence. I also agree that the evidence justifies the conclusion and decision of the Court of Appeal. I also dismiss this appeal.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is a natural reaction by the Appellant against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on June 12, 2008 in appeal no. CA/L/489/2005.

By the judgment in question, the Court below, coram Ogunbiyi, JCA (as then was), Mshelia and Nwodo, JJCA, dismissed the Appellant’s appeal against the Judgment of the trial High Court delivered on May 19, 2005 (LD/1037/2002), which dismissed in part the Appellant’s claim against the Respondent for outstanding balance of contract sum and damages for breach of contract.

BACKGROUND FACTS The Appellant is a limited liability company having the registered office thereof at 20/22 Adedoyin Street, Ketu, Lagos Slate. On the other hand, the Respondent is a Local Government Council having its Administrative Secretariat al Akodo, Lagos State.

​The genesis of the case leading the to instant appeal is traceable to May 27, 2002. Indeed, that was the day the Appellant instituted the case in the trial High Court, thereby seeking against the Respondent the total sum of N26.5 Million being special and general damages for a stabilization contract awarded to the Appellant In the Respondent.

By the statement of claim, filed along with the writ of summons thereof on the date in question, the Appellant claimed against the Respondent: 1. Particulars of special damages. a. The sum of N20,007076.60 being the balance of the contract sum of N35,007076.60k due to the plaintiff in respect of the stabilization of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State; and b. The sum of N1,500,000.00 being retention fee. 2.

General Damages: The sum of N5,000,000.00 being general loss suffered by plaintiff as a result of the unquantified damages suffered by the failure of the Defendant to pay the whole contract sum as and when due. 2. Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs is fully paid by the Defendant.

The Respondent reacted by filing a statement of defence to the claim, to which the Appellant filed a reply. Pleadings having been filed and exchanged between the respective parties, the suit proceeded to trial. In the course of which, the Appellant called two witnesses and tendered thirteen (13) documentary evidence, which were admitted as exhibits by the trial Court.

Contrariwise, the Respondent called one witness who testified in chief but failed to show up for cross-examination by the Appellant’s counsel.

At the close of evidence, the trial Court deemed it expedient to order for written addresses. Consequent whereupon, the Appellant filed its written address. However, the Respondent, for reason best known thereto, failed to file any written address as ordered by the trial Court.

The trial Court, not unexpectedly, proceeded to deliver the judgment on the said 19/05/2005, to the conclusive effect: I am satisfied on the evidence before me that the claimant has been able to prove on the balance of probabilities, his entitlement to N6 Million being the balance of the 60% first instalment as per Exhibit P 10. The law is trite that the Court can award less but not more than what is claimed if that is what is proved by the evidence

OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (PT. 781) 259 AT 349 citing EKPE V. FAGBEMI (1978)1 LRN 137 at 140. I cannot also on the basis of the evidence before me hold that the claimant is entitled to General damages as claimed as there appears to be outstanding issues between the parties in respect of the work done on the project. The 1st defendant does not even consider the project has been completed. The claimant in this case has sued both the 1st Defendant and its chairman as the 2nd Defendant. The contract agreement here was between the claimant and the 1st Defendant only.

I do not see why the 2nd Defendant had to be joined in this suit. He is not a proper party to this suit and I so hold. For this reasons given in the body of this Judgment therefore, judgment is hereby awarded in favour of the claimant against the 1st Defendant only in the sum with interest at the rate of 10%per annum from today 19th May, 2005 until the Judgment debt is fully paid. The claims for general damages are hereby dismissed. This is the judgment off his Court. N20,000 costs to the claimant.

Not unnaturally, the Appellant, being dissatisfied with the judgment of the trial Court aforementioned, appealed to the Court below.

As alluded to above, the Court below dutifully heard the appeal and delivered the vexed judgment on the said June 12, 2008, to the conclusive effect: On the totality of the appeal before us, the issues are hereby resolved against the appellant and in favour of the respondent. The appeal in the circumstance is devoid of merit and accordingly dismissed. The judgment of the learned trial Judge of the High Court of Lagos State delivered on 19th day of May, 2005 is hereby affirmed. With costs following events, I would award the sum of N30,000 in favour of the respondents.

Appeal dismissed with N30,000.

On 21/09/21, when the appeal at long last came up before us for hearing, the learned counsel had the opportunity of addressing the Court and adopting their respective briefs of argument prior to reserving Judgment to today.

DETERMINATION OF THE RESPONDENT’S PRELIMINARY OBJECTION It’s trite, that the Respondent has had the liberty of raising in the brief thereof (pages 2-12 of the Respondent’s Amended Brief of Argument) a preliminary objection, thereby vehemently challenging the competence of the Appellant’s notice of appeal, to the effect that: The three grounds of appeal contained in the notice of Appeal dated 11th of September, 2008 and the issues/arguments formulated thereon be struck out for being incompetent having not complied with Order 8 Rule 2 (3) (4) of the Supreme Court Rules and/or bad for falsity.

Each of the three grounds of the notice of appeal has been copiously reproduced along with their particulars at pages 4-7 of the Respondent’s brief, viz: Ground 1 Error in Law The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the Contract Agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion the there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on the contrary.

Particulars of Error (i) The contract agreement executed by the parties tendered as Exhibit P5 was very clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of payment/completion certificate, which provisions are binding on the parties, and effect ought to have been given accordingly to them by the Court below. (ii) The Court below was wrong in relying on its own observation from examination of the documents to decide matters which did not the actual evidence on record. (iii) It vas in evidence that the Appellant had performed and complied with all the duties crated on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six-month window for release of final payment, being the third stage of payment, namely payment of the retention fee. (iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondent’ designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued a payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to payment of the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement. (v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as the duly designated agent and on behalf of the Respondents) had upon inspection and due satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment envisaged in clause of the contract agreement, being the third stage payment provided for by Clause 4 of the said contract agreement. (vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works to date being the entire contract works. (vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is the balance, less the retention fee. (viii) The lower Court was therefore in error in failing to hold that Exhibit P8 was the payment certificate issued by the Respondents or their representative, but rather placed reliance on a letter dated 8th March 2002 (Exhibit P10) written outside the six months retention and warranty period provided by Clause 4 of the contract agreement. (ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within the six months window for observation of defects and for retention fee. (x) Extrinsic evidence such as Exhibit P10 ought not be used to vary the contents of a written contract validly entered into by the parties. (xi) The interpretation placed Exhibit P5 and P8 by the learned Justice of the Court of Appeal occasioned a miscarriage of justice.

Ground 2: Error in Law The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record Particulars of Errors: (i) The Appellant had testified and tendered 13 documentary Exhibit in support of its case, particularly the contract document (Exhibit P 5) and the Certificate of Completion from the Respondents (Exhibit P8) (ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as a careful perusal of the pleadings reveals that same was Exhibit P8. (iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below. (iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming, and it was open to the Court to act on such unchallenged and uncontroverted evidence, which was neither inherently incredible nor offended any rational conclusion. (v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works. (vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents’ designated professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant. (vii) The Respondents having issued the completion certificate through their Council Engineer as provided for by the contract agreement are not free to resile therefrom or to disclaim the certificate. (viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellate is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established. (ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on the preponderance of evidence.

Ground 3: Error in Law The learned justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.

Particulars of error (i) The Appellant established that there was a breach of contract, even as the learned trial Judge had found that part of the first stage payment was still being owed the Appellant, that is, the sum of N6 million (ii) The Appellant had also established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents. (iii) The funds of the Appellant had been tied down since 2001 as a result of the default of the Respondent. (iv) The Appellant is clearly entitled to damages and interests. (v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to rewarding intransigence.

Instructively, an appeal is a challenge against the decision of the trial Court or the Court below, as the case may be. Essentially, an appeal challenges the correctness of the decision being appealed against on three fundamental grounds: (i) on the grounds of law; (ii) mixed law and facts; (iii) or on facts simpliciter.

Thus, to justify the intervention of the appellate Court on any of the grounds of the notice of appeal before it, the appellant has an up-hill task of establishing that the decision of the Court below he seeks to be reversed or set aside was wrongly arrived at, or the opinion expressed therein is not supported by the pleadings and evidence on the record. See GUARDIAN NEWSPAPERS LTD VS. REV. PASTOR C.I. AJEH (2011) LPELR-1343 (SC) @ 27 paragraphs A-C and UOR VS. LOKO (1988) 2 NWLR (pt. 77) 430.

Where a decision of a Court is challenged on the ground that the trial Court failed to properly consider the appellant’s case, the appellate Court in the exercise of its primary judicial responsibility, ought to take into account certain fundamental factors: (i) The nature of the evidence before the trial Court or the Court below. (ii) Whether the Court below accepted or rejected any evidence upon the correct perception. (iii) Whether the Court below used the imaginary scale of justice to weigh the evidence on either side of the divide, and (iv) Whether the Court below appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.

This trite fundamental doctrine has been reiterated in a plethora of formidable authorities. See EGONU VS. EGONU (1978) 11-12 SC 111, AGBONIFO VS. AIWEREOBA (1988) 14 NWLR (pt.70) 325, KIM VS. EMEFO (2001) 4 NWLR (pt. 102) 147, SALAWU VS. MAKINDE (2002) LPELR-12318. Jurisprudentially, a ground of (for) appeal denotes a trial Court’s (or of Court below) errors of procedural law that form a basis for asking (praying) an appellate Court to review a case. Equally termed, ground for review. See BLACK’S LAW DICTIONARY, edition, 2019 @ 848.

Invariably, the objective of issues for determination by the Court is primarily to enable the parties streamline the issues in the grounds of appeal, contained in the notice of appeal, thereby ensuring accuracy, brevity and clarity.

A critical albeit dispassionate consideration of ground I, copiously alluded to above, would confirm that it is vague, in the sense that it is actually not clear what the complaint is all about. As aptly argued by the Respondent, at first what the error complained about apparently relates to the interpretation of Clauses 4.5.2,5.3 and 12 of the Contract Agreement. However, it is rather obvious, the ground equally relates to evaluation of documentary evidence on record. Thus, the actual nature of the complaint in ground I is far from being unambiguous.

The particulars are rather unhelpful in clearing the ambiguity inherent in ground 1.

Most especially, particulars (i) & (ii) are apparently argumentative, as they seem to complain about interpretation. Particulars (iii) to (x) are virtually argumentative, and narrative in nature, thereby complaining about evaluation of evidence on record.

What’s more, particular (x) is clearly irrelevant and extraneous to the decision of the Court below. ​ Ground 2 is equally vague, prolix and outrageously unwieldy. One is left in doubt as to whether ground 2 complains of burden of proof, when the evidence on record is unchallenged, or the evaluation of evidence by the Court below. Particulars (i), (ii), (v), (vi), (ix) are narrative and apparently dwell on evaluation of evidence. Particulars (vii) and (viii) are outrageously inconsistent with the ground in question. Particular (iii) is obviously unrelated 10 the ground.

Likewise, particular (xiii) is bad for falsity, in the sense that the Court below has clearly decided on the question whether the Appellant was actually entitled to payment based on the contract. Particulars (ii) and (iii) apparently deal with the burden of proof, when evidence is actually unchallenged.

Lastly, but not the least, ground 3, which for all intent and purposes is apparently bad for falsity, as the Court below affirmed the award of damages by the trial Court. Damages were awarded on the N6 million proved in the course of the trial. The ground 3 in question does not appear to have evidently flowed from the vexed judgment of the Court below. The said ground 3 is to say the least, at large!

Most regrettably, issue 1 allegedly distilled from grounds 1 and 2 of the notice of appeal apparently dwells on interpretation. The said issue is extraneous to the grounds, as particulars of errors of interpretation have not been provided in the grounds. See ADAH VS. ADAH (2001) 5 NWLR (pt. 705) 1, ABAYOMI VS. AG ONDO STATE (2006) 8 NWLR (pt. 982) 211, MOMODU VS. MOMOH (1991) 2 SC1, MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (pt. 959) 211.

Interestingly, the hallmark of the principles enunciated in the foregoing authorities is to the effect, that an issue for determination must be predicated upon or distilled from a competent ground of appeal. This is indeed so, whether or not the issue is raised by the Appellant or the Respondent. Thus, an issue for determination not distilled or derived from a competent ground of appeal, ought to be struck out along with the incompetent ground in question. The proposition of law is indeed trite, one cannot put something on nothing and expect it to stand.

No, it would most assuredly crumble and fall just like the way the cookies crumble. See MACFOY VS. UAC (1961) AC per Lord Denning, MR.

The issue 2, distilled from ground 3 does not at all relate to the decision of the Court below, because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 million at the interest rate of 10% per annum. There ought not to have been a complaint about damages that was not awarded.

Hence, against the backdrop of the foregoing postulations, the most inevitable conclusion that could be arrived at in the instant appeal, is to the effect that the Respondent’s preliminary objection is meritorious, thus ought to be granted by me.

CONSEQUENTIAL ORDERS A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent.

See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627.

Hence, having determined that the instant appeal is grossly incompetent, thereby upholding the Respondent’s preliminary objection, the appeal is accordingly hereby struck out by me. ​ There ought not to be any order in regards to costs.

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MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Saulawa JSC and to underscore the support, I have in the reasonings from which the decision came about, I shall make some remarks. ​ This is an appeal against the judgment of the Court of Appeal, Lagos Division or Court below or lower Court, Coram C.B. Ogunbiyi JCA (as he then was), A.G. Mshelia and R.O. Nwodo JJCA, delivered on the 12th June, 2008, dismissing the appellant’s appeal against the judgment of the High Court of Lagos State dated 19th May 2005 per J.E. Oyefeso J.

FACTS BRIEFLY STATED The appellant (as plaintiff) had by a suit instituted on 27th May, 2002 before the trial High Court claimed against the defendants (now respondents) the sum of N26.5 million being special and general damages for a road stabilisation contract awarded to the Plaintiff by the Defendant which contract the Plaintiff completely executed. The plaintiff claimed as follows:- “(1) Particulars of Special Damages: (a).

The sum of N20,007,076.06 being the balance of the contract sum of N35,007,076.60 due to the Plaintiff in respect of the stabilisation of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State, and (b). The sum of N1,500.000.00 being retention fee. (2). General Damages: The sum of N5,000,000.00 being general loss suffered by the Plaintiff as a result of the unquantified damages suffered by the failure of the Defendants to pay the whole contract sum as and when due. (3).

Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs are fully paid by the Defendant.

The Defendants filed a Statement of Defence. In answer thereto, the Appellant filed a reply to the Statement of Defence. The Appellant called two witnesses to prove its claim and tendered thirteen (13) documentary exhibits in support thereof. The Defendants called one witness who testified in chief and refused to show up for cross-examination, and the Defendants abandoned their defence. At the close of evidence, written addresses were ordered and the Appellant filed its written address.

The Defendants did not filed any written address.

The kernel of the Appellant’s case is that it had completely executed the contract for the stabilisation of a 16.5 laterite road awarded to it by the Defendants in accordance with the contract agreement signed by the parties and admitted in evidence as Exhibit P3, and having been issued a certificate of completion of the parties’ agreement in the said contract document, and which was duly signed by the Defendants’ Council Engineer on their behalf .and with their authority, the Defendants were bound to perform their obligation under the contract, namely to pay the Appellant the sum outstanding on the contract.

The Appellant’s PW 1, Chief Michael O. Odumenya, testified and tendered the letter of offer of the contract dated 15th November, 2000 as Exhibit P1, the Appellant’s letter of acceptance dated 16th November, 2000 as Exhibit P2, the Contract Agreement dated 16th December 2000 as Exhibit P3; the letter of review of the contract sum dated 31st January, 2001 as Exhibit P4, the revised contract agreement dated 31st January, 2001 as Exhibit P5.

The Appellant also tendered the Appellant’s letter reporting completion of the contract dated 28th May, 2001 as Exhibit P6 and the Appellant’s letter of demand for payment of balance dated 5th June, 2001 as Exhibit P7 and the certificate of completion issued by the Defendants to the Appellant dated 12th June, 2001 as Exhibit P8. The Appellant further tendered its Counsel’s letter of demand dated 18th April, 2002 as Exhibit P 9, while the Defendants’ letter to the Appellant offering part-payment of N6 million dated 8th March, 2002 was tendered as Exhibit P10.

The Appellant also tendered its bank’s statement of account for the material period as Exhibit P11 while a Guardian Newspaper publication of 3rd April, 2002 was tendered as Exhibit. An earlier letter by the Appellant for a review of the contract sum was tendered as Exhibit P13 while a certified true copy of the above-said Guardian publication was tendered as Exhibit P14.

The Defendants on the other hand, had no evidence to controvert the overwhelming evidence proffered by the Appellant on the due execution of the contract and the liability of the Defendants to pay the outstanding balance in terms of the contract agreement.

The learned trial Judge, inspite of the preponderance of evidence in support of the fact that the Appellant had executed the contract as agreed upon by the parties, failed to give judgment to the Appellant in respect of the outstanding balance by adopting an erroneous interpretation of the clauses of the contract agreement, but however gave judgment for the sum of N6 million that was not in dispute. The Appellant dissatisfied with the said judgment, appealed to the Court below, armed with 5 (five) grounds of appeal.

The Respondents despite being served with the Notice of Appeal, the Appellant’s Brief of Argument and several hearing notices, failed to challenge the appeal in any manner whatsoever including filing of their Respondents’ Brief of Argument. The Court below even on the face of the unchallenged appeal, on the 12th day of June 2008 in a considered judgment upheld the decision of the Court of first instance and dismissed the Appellant’s appeal.

It is against this judgment dismissing the Appellant’s appeal by the Court below that the Appellant has now appealed to this Court by a Notice of Appeal dated the 11th day of September, 2008 and filed on the 11th day of September, 2008.

At the hearing on 21/9/2021, learned Senior Advocate Gordy Uche adopted the appellant’s brief of argument filed on 9/11/2009 and deemed filed 13/12/2010 and appellant’s amended reply brief filed on 23/12/2020. He raised two issues for determination, viz: 1. Was the Court below right in its interpretation of clauses 4, 5.2, 5.3, and 12 of the contract agreement (Exhibit P5) when they came to the full payment of the contract sum. (Arising from Grounds 1 & 2) 2.

Was the Court below right when it held that the Appellant was not entitled to an award of damages inclusive of interests on the sum owed the Appellant by the Respondents. (Arising from Ground 3).

Said Sanusi, learned Counsel for the respondents adopted their brief filed on 18/2/2020 and deemed filed on, 18/3/2020. In the brief was argued a Preliminary Objection which learned counsel said if it failed, the Court should consider a single issue as follows:- Whether the Court of Appeal was justified in affirming the judgment of the High Court that the appellants did not prove his entitlement to the full claims sought.

It is without saying that the Preliminary Objection of the respondents would be first considered before anything else as upon it depends the validity of the appeal.

PRELIMINARY OBJECTION Learned Counsel for the respondents/objection submitted that the three grounds of appeal are incompetent and should be struck out since they did not comply with Order 8 Rule 2(3) & 4 of the Supreme Court Rules.

That the instant grounds of appeal are not only argumentive, narrative in nature, the particulars in some cases are so dissimilar to the grounds and are vague.

That ground one is vague in the sense that one cannot really decipier what the complaint is really about. He cited CBN v Okojie (2002) 8 NWLR (pt. 768) 48 at 61.

Learned counsel for the objectors contended that ground 2 is prolix in nature, and unwieldy, and also vague. Also that ground 3 is vague. He cited Globe Fishing Industries Ltd v Coker (1990) NWLR (pt. 162) 265 at 300, Osasona v Ajayi (2004) 14 NWLR (pt. 894) 527.

The appellant responded stating that the entire grounds of appeal filed by the appellant are all proper and valid as the grounds of appeal flow directly from the judgment appealed against and are set out concisely, precisely and succinctly and clearly show the nature and ambit of the appellant’s complaints before the Court. See Oloruntoba Oju & Ors v Abdul-Raheem & Ors (2009) 13 NWLR (pt. 1157) 83 at 120 – 121.

That the Supreme Court has a duty to do substantial justice, on the live issues begging for determination. See Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2001) 7 NWLR (pt. 711) 206 at 232. I shall refer to the relevant rules of Court.

Order 8 R.2(3) of the Supreme Court Rules provides as follows: “The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of appeal without argument or narrative and shall be numbered consecutively.” Order 8 R.2(4) of the Supreme Court Rules provides as follows: “No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court its own motion or on application by the respondent.” It is to be noted that grounds of appeal as a strict rule must not be verbose, argumentative and vague as these features rob it of its substance.

To achieve its object, it must be concise, straight to the point. It must convey a message. Where this is not the case, it is tantamount to a pipe without a sound, a distinct sound-the error contained in the said judgment, prolix, argumentative and vague. Such grounds are not permitted under the rules of this Court. That is why this Court is won’t say that drafting of grounds of appeal require special expertise because the consequence of non-compliance is that the grounds of appeal may be struck out thereby making the issues formulated thereon incompetent.

The rationale of this rule of Court has been adequately explained in a long line of judicial authorities.

In AIGBOBAHI V AIFUWA (2006) 6 NWLR (PT.976) 270 Per Mohammed J.S.C at page 314 Para G-H said thus: “The whole purpose of a ground of appeal is to appraise or put the other side on notice of the nature of complaint being raised therein and the overriding consideration is whether the ground is clearly stated vague.” See also Anie v Ugagbe (1995) 6 NWLR (pt. 402) 425 at 432 as follows:- “A ground of appeal must be so succinctly couched and specifically described that the other side will know the exact complaint against the judgment, It should also avoid repetition, narration or arguments, The whole purpose of grounds of appeal is to give notice to the side as to what case he is going to meet on appeal.

There should be no ambiguities or roundabout arguments in a ground of appeal.” See also ADEROUNMU V OLOWU (2000)4 NWLR (PT.652) 253 S.C, NATIONAL INVESTMENT & PROPERTIES CO. LTD V THOMPSON ORGANISATION (1969) 6 N.S.C.C. 161 at 164.

In context to the instant grounds of appeal, they are not only argumentative, narrative in nature, the particulars in some cases are so dissimilar to the grounds and they are so vague. Issues have been purportedly formulated on such incongruous grounds of appeal.

The grounds are reproduced hereunder:- “Ground 1 Error in Law The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the contract agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion that there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on record to the contrary.

Particulars of Error (i) The contract agreement executed by the parties tendered as Exhibit P5 was clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of completion/payment certificate, which provisions are binding on parties, effect ought to have been given accordingly to them by the Court below. (ii) The Court below was wrong in relying on its own observations from examination of the documents to decide matters which did not emerge from the actual evidence on record. (iii) It was in evidence that the Appellant had performed and complied with all duties created on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six month window for release of final payment, being the third stage of payment, namely payment of the retention fee. (iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondents designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement. (v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as duly designated agent and on behalf of the Respondents) had upon inspection and the satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment as envisaged in Clause 5.3 of the Contract Agreement, being the third stage payment provided for Clause 4 of the said Contract Agreement. (vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works completed to date – N35, 007,076.60″, being the entire contract works. (vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is balance, less the retention fee. (viii) The lower Court was therefore in error in holding that Exhibit P8 was the payment certificate issued by the Respondents of their representative, but rather placed, on reliance on a letter dated 8th March, 2002 (Exhibit P10) written outside the six months retention and warranty period by the Clause 4 of the Contract Agreement. (ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within six months window for observation of defects and for retention fee. (x) Extrinsic evidence such as Exhibit P10 ought not to have been used to vary the contents of a written contract validly entered into by the parties. (xi) The interpretation placed on Exhibit P5 and P8 by the learned Justices of the Court of Appeal occasioned miscarriage of justice.

GROUND 2: ERROR IN LAW The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record.

PARTICULARS OF ERROR: (i) The Appellant had testified and tendered 13 documentary Exhibits in support of its case, particularly the contract document (Exhibit P5) and the Certificate of Completion from the Respondents (Exhibit P8) (ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as careful perusal of the pleadings reveals that same was Exhibit. (iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below. (iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming and it was open to Court to act on such unchallenged and uncontroverted evidence, which was either inherently incredible nor offended any rational conclusion. (v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works. (vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents designed professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant. (vii) The Respondents having issued the completion. certificate through their Council Engineer as provided for by the Contract Agreement are not free to resile therefrom or to disclaim certificate. (viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellant is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established. (ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on preponderance of evidence. <br< p=”” style=”box-sizing: inherit;

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GROUND 3: ERROR IN LAW The learned Justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.

Particulars of Error (i) The Appellant established that there was a breach of contract, even as the learned trial judge had found that part of the first stage payment was still being owned the Appellant, that is the sum of N6million. (ii) The Appellant had established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents (iii) The funds of the Appellant had been tied down since 2011 as a result of the default of Respondents. (iv) The Appellant is clearly entitled to damages and interests. (v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to intransigence.”

Ground one is vague in that one cannot really decipher what the complaint is really about. A vague ground of appeal was defined by this Court in C.B.N. v OKOJIE (2002) 8 NWLR (Pt.768) 48 at PG 61 PARA E-F. The Court said thus:- “Vagueness of a ground of appeal may arise where it is couched ‘in a manner which does not provide any explicit standard for its being understood.

It may also be considered vague when complaint is not defined in relation to the subject or it is not particularised, or the particulars are irrelevant.” A ground of appeal is said to be vague if it is illusive, ambiguous, broad, debatable, disputable, evasive and inexact. On the other hand, a ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague since it would by this nature of clarity speak loudly of the complaint. See Lagga v Sarhuna (2008) 16 NWLR (pt. 1114) 427 a 471-472.

For a clear picture, a vague or ambiguous ground would lead one to think the error complained of is the interpretation of Clauses 4, 5.2, 5.3 and 12 of the Contract Agreement. ​ When read further, it seems the error complained changed to the evaluation of documentary evidence on record. The effect is that one is left in doubt as to the nature of complaint in ground one. The particulars did not help out in resolving the confusion. The particulars are argumentative and narrative in nature. Particulars (i) & (ii) are argumentative in nature. They seem to complain about interpretation.

Particulars (iii) to (x) are not only argumentative, narrative in nature, they also seem to complain about evaluation of evidence on record. Particulars (x) are clearly irrelevant as it was not a decision of the Court below. The Court below did not vary the contents of any written contract between the parties.

It is now well settled in law that the ground and their particulars must be restricted to the errors complained of in the judgment. In order words, that the grounds and particulars of errors should not be framed at large. The case of Osasona v Ajayi (2004) 14 NWLR PT. 894 527 is apt in this regard. This Court held that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal.

They are specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. The particulars of ground one are not only fundamentally defective and they also increased the confusion as to the perceived error in the judgment.

Ground 2 is prolix in nature and unwieldy. It is also vague as ground 1. One is not sure what the complaint really is whether it is the burden of proof when evidence is unchallenged or the evaluation of the evidence led by the Court. The particulars did not help resolve the confusion. Particulars (i), (ii) (v) (vi) (ix) apart from being narrative seem to dwell on evaluation of evidence while particulars (vii) & (viii) are inconsistent with the grounds. They do not relate at all to the ground. Particulars (iii) are not a complaint against the judgment.

Particulars (viii) are bad for falsity as the Court clearly decided on the question whether the Appellant is entitled to payment based on the contract. The grounds like the particulars are not framed at large. Particulars (ii) & (iii) seem to dwell on the burden of proof when evidence is unchallenged.

Again, ground 2 is repetitive of ground 1 in many respects. Particulars (ii) – (viii) are repetitive of particulars of ground 1.

It is trite that appeal is not fought on repetitive grounds but on the quality of the grounds.

Ground 3 is also vague. Several questions crop up. What is the interpretative outcome of the case? How does interpretation outcome of the case relate to damages? Particulars (v) are inconsistent with the ground. Is the complaint about damages and/or interests? One cannot decipher. Particulars (i) was not a decision of the Court of Appeal. The Court did not find as a fact that the Respondent breached the contract. Thus, the complaint is at large. The particulars are also argumentative which is not permitted by the rules of this Court.

It is settled law that particulars of a ground cannot be different from the grounds because they form part and parcel of the complaint. The particulars of a ground are only meant to be an addendum. See Mba v Agu (1999) 1 NWLR (PT.629) SC1.

This Court in Globe Fishing Industries Ltd v Coker (1990) NWLR (PT.162) 265 S.C 3000 F-G reiterated the principle thus:- “The particulars and nature of the error or misdirection alleged in Order 8 Rule 2 (2) are the specific reasoning, finding or observations in the judgment relating to or projecting the error or misdirection complained of They are in the sense the itemisation of the error or misdirection in the judgment or ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of appeal to establish that the Court erred or misdirected itself.

They should not also be independent complaint from the ground of appeal but ancillary to it.”

Ground 3 is also bad for falsity as the Court of Appeal affirmed the award of damages by the trial Court. Damages were awarded on the Six Million Naira proved. The ground does not flow from the judgment of the Court below. The ground is framed at large. See Co-operative & Commerce Bank Plc v. Ekperi (2007) 3 NWLR (PT. 1021) 282.

Confusing grounds of appeal will only bring about confusing issues. The issues purportedly formulated by the Appellants are as follows: “Was the Court below right in its interpretation of Clauses 4,5.2,5.3 and 12 of the Contract Agreement (Exhibit P5) when they came to the conclusion that the Appellant was not entitled to full payment of the contract sum (Arising Grounds 1 & 2)? Was the Court below right when it held that the Appellant was not entitled to an award of damages inclusive of interests on the sum owed the Appellant by the Respondents? (Arising from Ground 3)”

Issue one formulated from grounds 1 and 2 seem to talk about interpretation. The issue is formulated outside the said ground as particulars of error of interpretation were not given in the said grounds. That is not allowable. See the case of Adah v. Adah (2001) 5 NWLR (PT.705) page 1. The issue can only be discountenanced in the circumstances. The complaint of the Appellant against the judgment of the Court below as distilled from issue one is that there was a perceived error in the interpretation of the contract which led to wrong findings of fact.

But the Appellant proceeded to fault the evaluation of evidence by the Court below in the body of the brief. It is clear that the perceived error in evaluation of evidence as argued by the Appellant did not flow from the error in interpretation. Thus, since the issue distilled from grounds 1 and 2 is the perceived error in interpretation by the lower Court, this Court cannot enquire as to whether evidence were properly assessed by the lower Court because the rationale behind the formulation of issues is to narrow the field of dispute.

It is to narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity.

Once issues for determination are formulated, it supersedes the grounds of appeal. See Abayomi v. A.G. Ondo State (2006) 8 N.W.L.R (PT. 982) 211.

It is more so since issue one is distilled from both ground 1 and 2 of the notice of appeal. It is now trite that where an incompetent ground of appeal is argued together with those formulated from competent grounds, the issue will be deemed incompetent because the Court cannot sift that which is competent from the incompetent ones.

See Ngige v Obi (2006) 14 N.W.L.R (PT.999) lat 165 Para E-H this Court endorsed this exposition of the principle by Per Salami J.C.A in the unreported case of Korede v Adedokun thus: “This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brie to extract argument in respect of valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust arising therefrom may of necessity becloud its judgment.

The duty of the Court is that of an umpire whose functions in the interest of justice is to tend the rope and not to step into the brawl by exercising argument on good grounds of appeal from those of bad ones. See also Honika Sawmill (Nig) Ltd v. Harry Okojie Hoff (1994) 2 NWLR (pt. 326) 252 at 262, Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718.”

Issue two formulated out of ground 3 is strange to the decision of the Court of Appeal because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 Million Naira at the interest rate of 10% per annum. What then is the sum owed and what then is the interest? The Appellant did not prove he was entitled to the sum claimed. That is the decision of the Court below. If he at the Court below establish same, there cannot be no complaint about damages that was not awarded.

It has to be pointed that the Court can raise the issue suo motu, of the incompetence of an appeal. In Abubakar v Joseph (2008) 13 NWLR (PT.1104) 307, this Court held that where no objection is raised to the competence of the grounds of appeal filed by the Appellant, the Court on its own can raise the issue.

The issues formulated being vague are clearly irrelevant to this appeal. It makes it difficult for the Court to determine the real issue in controversy. It makes the hearing of the appeal difficult as it is trite law that a respondent to an appeal cannot formulate issues for determination outside the grounds of appeal filed by the Appellant. Justice can not be done as between the parties when the Respondent is at a loss as to the complaint of the Appellant. The door of justice is open to genuine complaints as otherwise a waste the precious time of the Court will ensue.

Even the cry that substantial justice demands that the appeal should still be heard would not save the appeal. This much was stated by Per Achike J.S.C in Calabar East Co-op. v Ikot (1999) 14 NWLR (pt. 638) 225 at 247 Para C: “Pronouncements or decisions made on incompetent issues or defective grounds of appeal cannot advance the appellants’ case, not even the interest of Justice nor, our jurisprudence, one jot, because, at best, such pronouncements are mere obiter dicta.

Stricto sensu, an appellate Court lacks jurisdiction, in the sense of competence to entertain an appeal which is not fought on valid grounds of appeal. See Godwin v C.A.C (1998) 14 NWLR (pt.584) 16 SC and Kala v Potiskum (1998) 8 NWLR (pt. 540) 1 SC.” From the foregoing, it is evident that there is no point belabouring the issues which have on their own been determined as stemming from incompetent grounds of appeal.

This Preliminary Objection has merit and I uphold it. The Notice and Grounds of Appeal are struck out on account of incompetence. I abide by the consequential orders made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal illustrates the importance of proper drafting of grounds of appeal and the sometimes devastating effect of failure to comply with the applicable rules in that regard.

Order 8 Rule 2 (3) and (4) of the Supreme Court Rules, as amended, provides: “(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without argument or narrative and shall be numbered consecutively. (4) No ground which is vague or general in terms, which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.” The rules of Court providing for the form and content of a notice of appeal are meant primarily to assist the Court and the respondent to discern, in a concise manner, the nature of the complaint from the decision appealed against.

While it is trite that rules of Court are meant to be obeyed, this Court has usually taken a liberal approach to a complaint that grounds of appeal are not in conformity with the rules, where it is nonetheless possible to identify the nature of the complaint or, to put it in another way, where despite the fact that the grounds of appeal are inelegantly drafted, neither the Court nor the respondent is misled as to the real nature of the complaint. This is in conformity with the Court’s desire to do substantial justice in the appeal before it and not to jettison an appeal on technical grounds.

See Sosanya vs Onadeko & Ors (2005) LPELR – 3105(SC) @ 25 B – C; (2005) 2 SC (Pt. 11) 13, Aderounmu vs Olowu(2000) 4 NWLR (Pt. 652) 253, Oleksandr & Ors Vs Lone Star Drilling Co. Ltd. & Anor (2015) LPELR – 24614 (SC) @ 26A, Ogboru vs Uduaghan (2012) 11 NWLR (Pt. 1311) 357 @ 380 B- D. The leaning of the Court in favour of doing substantial justice must, however, never be taken for granted. In the instant appeal, the grounds of appeal along with their particulars reveal an apparent confusion in the mind of learned counsel who drafted them as to the aspect of the judgment he intends to challenge.

I agree with the analysis of the grounds of appeal as done by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC in the lead judgment and agree that no amount of ingenuity can assist the Court or the respondent to decipher the actual complaint in grounds 1 and 2 against the judgment of the lower Court. Learned counsel should be wary of prolixity in the drafting of grounds of appeal and their particulars, as they run into the danger of obfuscating the real nature of the appellant’s complaint, as in this case.

As regards ground 3, it is wholly unrelated to the decision of the lower Court. The complaint is that the Court erred when it held that the appellant was not entitled to an award of damages upon “the interpretation of the outcome of the case.” Apart from being vague, the lower Court, in fact, affirmed the finding of the trial Court that the appellant was entitled to the sum of N6 million being the balance of 60% first installment as approved by the Executive Committee of the 1st respondent, which he proved successfully.

For a ground of appeal to be competent, it must be derived from the ratio decidendi of the decision appealed against. See Oleksandr Vs Lone Star Drilling Co. Ltd. & Anor (Supra), Dalek Nig. Ltd. vs Ompadec 2007 ALL FWLR Pt. 364 204.

Unfortunately, this appeal has no saving grace, as although the three grounds of appeal are couched as ‘error in law”, a careful examination thereof reveals that all the grounds are of mixed law and fact, for which prior leave ought to have been sought and obtained in compliance with Section 233 (3) of the 1999 Constitution as amended. The failure to obtain leave where leave is required, renders the notice of appeal null and void. See Nwagbara vs Jadcom Ltd. (2021) LPELR – 55329 (SC) @ 10 C – E, Chrome Air Services Ltd. & Ors Vs.

Fidelity Bank (2017) 12 SC (Pt. 111) 57; (2017) LPELR – 43470 (SC) @ 8 D – E; Fasuyi vs P.D.P. (2017) LPELR – 43462 @ 10 – 12 C – A.

On the whole, I agree with my learned brother, Saulawa, JSC that the appeal is incompetent and it is accordingly struck out. I abide by the order on costs contained in the lead judgment.

MOHAMMED LAWAL GARBA, J.S.C.: I am in full agreement with the views expressed by my learned brother, Hon. Justice Ibrahim Mohammed Musa Saulawa, JSC, in the lead judgment, which I read before today, that all the three (3) grounds contained on the Appellant’s Notice of Appeal are generally vague, unwieldy and prolix such that the real grievance or complaint against the decision by the Court below in each of them is uncertain, obfuscated and unspecific to be readily discernable.

The grounds offend and are in contravention of Order 8, Rules 2 (3) and (4) of the Supreme Court Rules (as amended) 2014 which provide that:-

“2.(3) The notice of appeal shall set fourth concisely and under distinct head, the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (4) No ground which is vague or general in terms which discloses no reasonable ground that of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its motion or on application by the respondent.” The grounds of appeal do not disclose reasonable grounds of appeal for being in general terms and vague and so liable to be struck out.

See Honika Sawmill Nig. Ltd. v. Hoff (1994) 2 NWLR (pt. 326) 252, Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285, Doma v. INEC & Ors. (2012) 7822 (SC).

I join the lead judgment in striking out the grounds as well as the appeal for being incompetent.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, IBRAHIM MOHAMMED MUSA SAULAWA, JSC.

I completely agree with the reasoning, conclusions, decisions, including the orders therein.

Judgment

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment) : Appellant filed this appeal against the decision of the Federal High Court, Kano, in FHC/KN/CS/51/2019, delivered on 1/6/2020 by Hon. Justice O. A. Egwuata, wherein he dismissed the plaintiff’s case against the Defendants.

The Appellant was the plaintiff at the lower Court, and the case at the lower Court (against the Defendants) was by originating summons, whereof the following questions were posed for determination: (1) Whether the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages) over the plaintiff’s assets, covered by Certificate of Occupancy No.

LKN/IND/RC/82/49, between the plaintiff and the 1st Defendant, has not been extinguished, the 1st Defendant having restructured the loan given to the plaintiff and taken shares in the plaintiffs’ company, in the name of the 2nd Defendant in place of the total indebtedness of the plaintiff. (2) Whether, in the circumstances of this case, the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages) over the plaintiff’s property, covered by Certificate of Occupancy No.

LKN/IND/RC/82/49, between Plaintiff and 1st Defendant, is of any legal effect to warrant the 1st Defendant to appoint the 3rd Defendant as receiver over the assets of the plaintiff. (3) Whether, in the circumstances of this case, the Plaintiff is entitled to the return of its Certificate of Occupancy No.

LKN/IND/RC/82/49, from 1st Defendant as well as an order setting aside the Deed of Mortgage Debenture and Deed of Appointment of the 3rd Defendant, registered and filed with the 4th and 5th Defendants, respectively.” Appellant had sought the following reliefs from the trial Court: (1) A Declaration that the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages), over the Plaintiffs property, covered by Certificate of Occupancy No.

LKN/IND/RC/82/49 has been extinguished by the taking of shares in the Plaintiff’s company in settlement of the debt. (2) An order discharging the Plaintiff from the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No 192 at page 192 in Volume 13 (Mortgages) over the Plaintiff’s property, covered by Certificate of Occupancy No LKN/IND/RC182149, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company. (3) A Declaration that the Deed of Appointment of Nassir Abdu Dangiri SAN, dated 30th November, 2017 as Receiver over the assets of the Plaintiff by the 1st Defendant, under and by virtue of the powers contained in the Deed of Legal Mortgage Debenture, is illegal and of no legal effect, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company. (4) An order setting aside the notice of appointment of the 3rd Defendant as Receiver/Manager, filed with the 5th Defendant on the 15th December, 2017. (5) An order of this Honourable Court vacating/annulling its order dated 30th January, 2018, in suit no FHC/KN/CS/06/2018, between the 1st Defendant and the Plaintiff, for want of jurisdiction, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company, and thus the mortgage agreement extinguished. (6) An order directing the 1st Defendant to return, forthwith, to the Plaintiff, the Certificate of Occupancy No LKN/IND/RC/82/49 given as collateral, the loan, the subject of the mortgage agreement, having been converted into shares in the Plaintiff’s Company. (7) An order mandating the 1st Defendant to retract the publication in the Leadership Newspaper, dated 04/05/18, with a written apology to be published in a national daily. (8) An order for damages in the sum of N200,000,000 00 (Two Hundred Million Naira Only) against the 1st Defendant. (9) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this suit. (Page 40 of the appellant’s Brief) (See pages 1482 – 1490 (Volume 2) of the Records of Appeal.

The Respondents had filed processes to defend the suit, and their Counsel had said that Appellant, who had the burden of proving how the loan from Bank of Industry was/is obtained, failed and/or neglected to show any evidence of that, at the trial.

After hearing the case and considering the evidence and addresses of Counsel, the learned trial Judge dismissed the suit and said as follows, by way of summary of the case of Plaintiff, before it: “The case of the Plaintiff is that it took a loan facility from Unity Bank Plc and executed a mortgage agreement (a deed of debenture, dated 07/07/99) over its assets and property covered by a certificate of occupancy no. LKN/IND/RC/82/49, registered with the 4th and 5th defendants as No. 192 at page 192 in Volume 13.

Unity Bank Plc instituted all action against the Plaintiff before the Kano State High Court and obtained a judgment against the Plaintiff in the sum of N135,656,017.90 which judgment was appealed against by the plaintiff to the Court of Appeal. While the appeal was pending, Unity Bank Plc by a letter dated 11th July, 2011 (Exhibit NCN 1), served on the Plaintiff a notice of assignment of its interest and proceeds arising from the loan/mortgage agreement to the 1st Defendant.

The Court of Appeal affirmed the decision of the Kano State High Court, prompting the plaintiff to file an appeal before the Supreme Court. While the appeal was pending at the Supreme Court, the parties entered into settlement and the loan assigned to the 1st Defendant was converted into shares in the Plaintiffs company in the name of the 2nd defendant, a subsidiary of the 1st defendant. The parties willingly executed the terms of settlement, incorporating the agreement reached between the parties which was duly filed with the Kano State High Court in suit no.

K/M514/2013 and entered as the judgment of the Court in exhibits NCN 5 and 6. It is the further case of the Plaintiff that consequent upon the settlement reached, the plaintiff altered its shares and allotted 4,600,000 units of shares to the 2nd Defendant as agreed between the plaintiff and the 1st defendant and same was duly filed with the 5th defendant (vide Exhibit NCN 9) and communicated to the 1st defendant vide Exhibit NCN 7. The letter was duly acknowledged by the 1st defendant vide exhibit NCN 8.

Consequent upon the terms of settlement, the plaintiff altered its various positions and acted upon the terms of settlement-the plaintiff withdrew its motion dated 11th of February, 2014 in Suit No. K/M541/2013 before the Kano State High Court and its appeal before the Supreme Court in appeal No. SC/521/2013 (Exhibits NCN 10 & 11).

To the dismay of the plaintiff, the 3rd defendant by a letter dated 2nd February, 2018 (Exhibit NCN 12), wrote the plaintiff intimating it of his appointment as Receiver, over the assets of the Plaintiff, attaching copies of evidence of registration with the 5th Defendant, Deed of Appointment, dated 30th of November, 2017 as well as the Court’s order dated 30th of January 2018 in Suit No. FHC/KN/CS/06/2018, authorizing him to take over the affairs of the plaintiff (Exhibits NCN 13, 14 & 15).

It is the contention of the Plaintiff that the loan agreement, having been restructured into shares in the plaintiff’s company, same agreement has extinguished the mortgage agreement between the 1st defendant and the plaintiff and as such the 1st defendant cannot lay claim to the loan that has been extinguished but to deal with the shares in accordance with the memorandum and articles of association of the plaintiff or laws regulating shares and not otherwise.

It is also the contention of the plaintiff that the 1st defendant having entered into agreement, adopted as consent judgment and made the plaintiff to alter its various positions, is estopped from reneging from same and that the plaintiff is entitled to the return of its certificate of occupancy. It is the case of the Plaintiff that the 3rd defendant as receiver, armed with Exhibit NCN 15, invaded the property of the Plaintiff, with armed Policemen in the name of taking over the property covered by Certificate of Occupancy No.

LKN/IND/RC/82/49, which property is still seized and manned by’ security men appointed by the 3rd Defendant, till date. It is also the case of the plaintiff that the advertisement of the order of this Court, made on the 30th day of January, 2018 in the daily (Exhibit NCN 17) embarrassed the plaintiff and caused the plaintiff unrest, panic and (sic) (made the) public to view the plaintiff in disdain and as a result has suffered financial loss.

The plaintiff as a result instituted this suit and sought the determination of the questions and the grant of the reliefs set out earlier in this ruling.” (See Pages 3525 to 3529 of the Records) The trial Court further said, as per the cases of the Respondents, as follows, on Pages 3529 to 3536 of the Records: “In opposing the Application, the 1st, 2nd and 6th Defendants filed a counter – affidavit of 6 paragraphs deposed to by one Suleiman Dangiri, a litigation secretary in the firm of Nasir Abdu Dangiri, SAN & Co.

Attached to the counter-affidavit are five (5) exhibits marked AMCON 1-5, respectively. A written address was also filed in compliance with the Rules of Court. The 1st, 2nd and 6th Defendants (Defendants) admitted the facts deposed in paragraphs 4-18 of the plaintiff’s affidavit in support.

It is the case of the Defendants that Exhibit AMCON 1 contains the terms and conditions of the loan agreement, including the amounts obtained by the plaintiff as loan(s), security provided for the loan, the interest rate, when the loan becomes payable (event of default) and appointment of Receiver/Manager amongst other clauses. It is the case of the defendants that the plaintiff is under Receivership, which appointment of the Receiver has not been set aside by any competent Court.

With the appointment of the receiver, the power of the Plaintiff and her Directors in respect of the asset under receivership contained in exhibit AMCON 1, is paralyzed until the Receiver is discharged and that up till now the Receiver has not been discharged. It is also the case of the Defendants that leave of this Court was not sought and obtained before this suit was filed against the Receiver/Manager and the 1st Defendant.

That in the Defendant’s reply to the plaintiff’s letter, the 1st Defendant informed the Plaintiff through Exhibit AMCON 2 that the Restructuring Agreement has been made SUBJECT TO CONTRACT or subject to the Plaintiff obtaining a loan from the Bank of Industry or any other financial institution, and up till now the Plaintiff has not obtained the loan. That the Plaintiff having admitted its debts affirmed by the Court of Appeal, it behaves the plaintiff to show how he repaid the debt.

That the parties entered into terms of settlement of debt as shown in Exhibit NCN 2 and 5, but that the Plaintiff is in default of several clauses of Exhibit NCN 2, which necessitated the defendants to activate the default clause of the terms of settlement, which allowed AMCON to exit the debt at any point. It is the further case of the defendants, that up till now the plaintiff has not taken any step to remedy the breach of the Terms and Conditions contained in Exhibit NCN 2.

It is the case of the Defendants that it was after the 1st Defendant exercised her right, by exiting the debt, that she appointed the 3rd Defendant as the Receiver/Manager pursuant to exhibit AMCON 1. In recognition of the exercise of this right, the plaintiff then wrote a letter (Exhibit AMCON 3) offering to pay the sum of N150 Million as lull and final payment in settlement of the outstanding debt. It is the contention of the defendants that the filing of this suit is an afterthought, as the Plaintiff cannot approbate and reprobate at the sometime.

That the position of the Plaintiff, as deposed in paragraphs 13-24, 26-27, 31-40 of her affidavit, can only be valid and true, if and only if the Plaintiff complied with the terms and conditions of Exhibit NCN 2 It is the further case of the defendants that the 1st Defendant was willing and ready to guarantee the loan to be obtained by the plaintiff from Bank of Industry Ltd or, any other financial institution as agreed in clause 4 of Exhibit NCN 2, but up till the time of appointment of the Receiver/Manager, selling of the mortgaged property and the filing of this suit by the plaintiff, that has not been done.

It is the position of the defendants that the sale of the plaintiff’s mortgaged assets on 1st of June, 2018 (when no suit was pending against such sale) to the 6th Defendant, was pursuant to the order of this Court in suit no. FHC/KN/06/2018 which order, up till now has not been appealed by the plaintiff. That as at the time the plaintiff instituted this action, the mortgaged property has long been sold to the 6th Defendant and that this action is not meant for the plaintiff to exercise her right of redemption but meant to further delay meeting her obligation.

The 3rd Defendant on his part filed a 7 paragraphs Counter-Affidavit on the 18th of December, 2019 deposed (to by) one Munir Dangiri, a litigation secretary in the firm of Abdullahi Musa Karaye & Co., counsel to the 3rd Defendant.

The position of the 3rd Defendant is the same with that of the 1st, 2nd and 6th Defendants, only that the 3rd defendant specifically added that, even after selling the mortgaged property to the 6th defendant for, N400 Million, the sum of over N50 Million is still outstanding from the plaintiff which has not been paid by the plaintiff before the plaintiff commenced this action against the defendants. I need not therefore reproduce same here.

The Plaintiff filed a 6 paragraph Further and Better Affidavit in reply to the 1st, 2nd and 6th Defendants’ Counter-Affidavit and the 3rd Defendant’s counter-affidavit respectively on the 22nd of January, 2020. Both processes are similar.

It is the position of the plaintiff that all the new issues introduced by the 1st, 2nd and 3rd Defendants in their counter-affidavits/written addresses to the amended originating summons of the plaintiff and filed on the 18th of December, 2019, without leave of this Court to amend, goes to no issue and of no effect, that the 1st, 2nd and 3rd Defendants ought ordinarily to file a consequential amendment pursuant to the amendment by the plaintiff and nothing more.

It is the further position of the plaintiff that the illegal appointment of the 3rd Defendant does not affect the powers of then plaintiff’s directors as there was no mortgage in existence at the time of the purported appointment of the 3rd defendant as Receiver/Manager of the Plaintiff, the mortgage having been extinguished/settled by virtue of the 2nd Defendant taking up shares on behalf of the 1st Defendant in the plaintiff’s company and that the terms of Exhibit NCN 2 formed the hoses (sic) of the terms of settlement that was entered as a consent judgment.

It is the reply of the plaintiff that the plaintiff has fully liquidated the concessionary outstanding debt of N321, 742, 302.58 by the conversion of the said sum into ordinary shares which translated to 4,600,000 shares (i.e 23% of the Plaintiff’s shares) in accordance with the terms of settlement.

The Plaintiff denied being in breach of any clause in Exhibit NCN 2 and that the quest for obtaining working capital from Bank of Industry or any financial institution to enable the plaintiff resume production is a joint responsibility of the plaintiff and the 2nd Defendant (the 1 Defendant by implication) being a shareholder and that the 1st and 2nd Defendant cannot be heard to complain.

The plaintiff denied that the sale of the plaintiff’s property was effected on the 16th of June, 2018, but was sold during the pendency of this suit as evidenced by the correspondence between the parties between 26th July and 6th September, 2019 (Exhibits FBA 5, 6, 7, 8 and 9) and also the 1st and 2nd Defendants by exhibit FBA 4 filed in suit No. FHC/C5/KN/105/2018, never raised the issue of sale of the property, but rather counter-claimed the sum of N321,642,308.56 and wondered however a counter-claim would have been claimed when the property was already sold.

The 4th Defendant on its part filed a Notice of Preliminary objection dated 21st but filed on the 29th of January, 2020 praying for an order striking out the name of the 4th Defendant on the grounds that there is no cause of action disclosed against the 4th Defendant in this suit.

In compliance with the Rules of Court, the 4th Defendant filed a written address wherein a sole issue for determination was formulated to wit: “Whether there is cause of action disclosed against the 4th Defendant by the plaintiff in this suit?” Counsel answered the above question in the negative submitting that the jurisdiction of a Court can only be invoked where there is a cause of action against a party before it.

It is the case of the 4th Defendant that the 4th Defendant is not a party to the terms of settlement executed between the plaintiff and some of the defendants and there is no relief sought against the 4th Defendant to warrant its retention in this suit. That the plaintiff must show to the Court the wrongful act of the defendant which gives the plaintiff cause of action against the 4th Defendant and the consequential damage suffered.

That these facts are not present in this case and therefore it will be unfair and unjust to drag and subject the 4th Defendant to unnecessary litigation merely because it is a nearest party to the suit.” Resolving the case, the trial Court said as follows, on pages 3560 to 3567 of the Records of Appeal, said: “By Exhibit ‘RM 1’, the Plaintiff assigned all the fixed and floating assets and things specifically described in the schedule to the deed to the bank (by implication, the 1st Defendant) by way of security for the payment of the principal sum borrowed which by exhibit NCN 2 stood at N221,827,503.75.

The plaintiff and the 1st Defendant executed Exhibit NCN 2 which was made the judgment of Court vide Exhibits NCN 5 and NCN 6. In the said Exhibit NCN 2, the outstanding debt sum was N221,827,503.75 and the ‘Facility Restructuring Terms include: 1. A concessionary outstanding debt of N321,742,308.56 will be accepted as settlement sum. 2.

The settlement sum will be converted to Ordinary Shares; this translates to 23% of Company’s shares/value (convertible to preference shares at the discretion of AMCON) with special Voting Rights and Power to appoint Management of Nabegu Company Nigeria Limited. 3. AMCON reserves the right to exit the debt at any point. 4. The above terms will be subject to Nabegu Company Limited receiving working Capital Funding from the Bank of Industry or any other financial institution. 5.

AMCON will consider the issuance of a guarantee if and when requested for by the Bank of Industry or any other financial institution. 6. Shares to be reconverted to debt at an interest rate of 15% p.a. backdated if the company does not meet specific targets on revenue, dividends and profit.

The Plaintiff contended that having fulfilled clause 2 of the above terms and the 1st Defendant vide the 2nd Defendant accepting the allotted 4.6 Million Units of the Plaintiffs shares, the plaintiff is no longer indebted to the 1st Defendant, Exhibit IM1 is extinguished and that the 1st defendant cannot validly appoint a Receiver/Manager over the affairs of the plaintiff. Also, that it is the responsibility of the 1st Defendant as a shareholder to secure the working capital funding from the Bank of Industry or from any financial institution.

The Defendants on the other hand contended that Exhibit NCN 2 was made ‘subject to’ the plaintiff ‘receiving working capital funding from the Bank of Industry or any financial institution’ which was not done by the plaintiff thus resulting in revocation of all the concessions made. Indeed, clause 4 of Exhibit NCN 2 stipulated chat ‘the above terms will be subject to Nabegu Company Limited receiving working Capital Funding from the Bank of Industry or any other financial institution.’ In Leadership Newspapers Group Ltd v.

Mantu (2017) 2 NWLR (Pt. 1548) P9. 15, the Court of Appeal held that whenever the expression “subject to” is used, it is an expression of limitation. It implies that what the section or subsection is “subject to” shall govern, control and prevail over what follows in the section or subsection of the enactment. Where there is no clash, the phrase does nothing. If there is collision, the phrase shows what is to prevail. It imposes a restriction or limitation which governs the other provisions in the said section.

If assigns a subordinate position to a clause or section of an enactment or provides qualification. It confers a right of priority in favour of the legislation to which the other is subject. The Court further held that where the phrase “subject to” occurs in a statute, effect must be given to it because every word in a statute must be constructed and given effect to since the Court lean against presumption of surplusage or tautology in construction of statute except where that is manifestly the case.

Words used in on agreement or contract or in a statute are not used without a meaning and so effect must be given if possible, to all the words used for the drafter is deemed not to waste its words or say any is void. In Labiyi v.

Anretiola (1992) 8 NWLR (Pt. 258) Pg. 139, Kalgo JSC (as he then was) held that it is a general principle of the law of contract that where a contract is made subject to fulfilment of certain specified terms and conditions, the contract is not formed or becomes binding unless and until those terms and conditions are complied with or fulfilled…’ In this instance, clause 4 was agreed to by the plaintiff and the 1st Defendant in Exhibit NCN2. The interpretation of the said clause to my mind is very clear and unambiguous.

It is that for clauses 1 and 2 of Exhibit NCN2 to be effective, clause 4 must be satisfied otherwise the agreement is ineffective. By clause 3, the 1st defendant reserves the right to exit the debt at any point. It does not lie in the mouth of the plaintiff to say that since the 1st defendant through the 2nd Defendant is now a shareholder, it behoves on it to secure the ‘working capital funding from the Bank of Industry or any other financial institution.’ It is not a term of exhibit NCN 2.

If that were to be the intention of the parties, such clause ought to have been made express in the agreement. The plaintiff is estopped from adding, varying or modifying the contents of the agreement between the parties with the default in fulfilment of clause 4 of Exhibit NCN 2, and the debt reverting, the 1st defendant reserves the right to exit the debt in accordance with clause 3 of Exhibit NCN 2 and to take steps to recover the indebtedness of The plaintiff. Such right include instituting suit No.

FHC/KN/C5/06/2018 (Exhibit NCN 15) and the subsequent appointment of the 3rd Defendant as Receiver/Manager contrary to the argument of the plaintiff’s counsel. It must be added that the 1st Defendant is not contesting or denying the allotment of 4.6 million Units of shares to it vide the 2nd Defendant but that the default of the plaintiff in fulfilling clause 4 nullified the concession given to the plaintiff vide Exhibit NCN2. It is the 1st Defendant that has the locus to benefit from Exhibit NCN 2 and not a third party who is a stranger to Exhibit NCN 2.

The plaintiff counsel had argued that the Defendants cannot raise the issue of breach of Exhibit NCN 2 in the absence of any document because the parties reduced their agreement in writing (Exhibits NCN 2, 5 and 6) and that Exhibit PM2 came into being after the appointment of the Receiver/Manager. With greatest respect to counsel, Exhibits NCN 2, 5 and 6 are the documents before the Court and these documents are what the defendants are saying were breached by the plaintiff.

If otherwise, it behoves the plaintiff to draw the Courts attention to the fulfilment of the said clauses to enable the Court find that there was no breach. It is not one of the terms of Exhibit NCN2, 5 & 6 that where there is a breach, the other party will inform the other of such breach before the exercise of any right accruing to such a party. Exhibit RM 2 was drawing the plaintiff’s attention to the clauses of Exhibits NCN 2, 5 and 6 breached by the plaintiff. Issue No. 1 is therefore resolved against the Plaintiff.

Having resolved issue no. 1 against the Plaintiff, it follows therefore that the plaintiff is not entitled to any damages and I so hold. In the circumstance and considering all that I have said above, the result therefore is that I answer the three questions posed by the plaintiff in the negative. For the avoidance of doubt, it is my finding that the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No. 192 at page 192 in Volume 13 (Mortgages) over the plaintiff’s property covered by certificate of occupancy no.

LKN/IND/RC/82/49 between the plaintiff and the 1st Defendant has not been extinguished as a result of the default by the plaintiff in fulfilling Exhibit NCN2, 5 and 6 and thus the appointment of the 3rd Defendant as Receiver over the assets of the plaintiff is proper and the plaintiff is not entitled to the return of its Certificate of Occupancy No. LKN/IND/RC/82/49 or the setting aside of the Deed of Mortgage Debenture and Deed of Appointment of the 3rd Defendant registered and filed with the 4th and 5th Defendants respectively.

This suit is therefore dismissed for lacking in merit.” That is the judgment Appellant appealed against, as per the Notice of Appeal dated 17th July, 2020, on pages 3569-3573 of the Records of Appeal, (Volume 3) disclosing 5 grounds of Appeal. Appellant filed Appellant’s Brief on 30/9/2020 and distilled 4 issues for the determination of the Appeal, as follows: (1) Whether in the circumstance of this case, the learned trial Judge was right when he held that the Deed of Mortgage Debenture dated 07/07/99 and registered with the 4th Defendant as No.

LKN/IND/RC/82/49 between the Appellant and the 1st Respondent has not been extinguished. (2) Whether the learned trial Judge was right when he held that the appointment of the 3rd Defendant as Receiver over the assets of the plaintiff is proper. (3) Whether the learned trial Judge was right when he held that the plaintiff is not entitled to the return of its Certificate of Occupancy No.

LKN/IND/RC/82/49 or the setting aside of Mortgage Debenture and Deed of Appointment of the 3rd Defendant registered and filed with the 4th and 5th Defendants respectively. (4) Whether the learned trial judge was right when he failed to evaluate and make a finding one way or the other on all the issues raised by the Appellant. On page 5 of the brief, Appellant’s Counsel on ARRANGEMENT OF ARGUMENT, said: “Issues No. 1, 2 and 3 are derived from Grounds 1, 2 and 4 of the Notice of Appeal, while Issue No. 2 is distilled from grounds 3 and 5 of the Notice of Appeal.

Issues 1, 2 and 3 would be taken, together.” The 1st, 2nd, 3rd and 6th Respondents filed their joint brief on 19/10/2020 and distilled 2 issues for the determination of the appeal, as follows: 1) Whether the learned trial judge was right in holding that since the restructuring of Appellant’s outstanding, indebtedness agreement has been made subject to Appellant receiving working capital funding from Bank of Industry, or any other financial institution as contained in Clause 4 under facility Restructuring Terms contained at page 1 Clause 4 Exhibit NCN2 executed by the Appellant and 1st Respondent, then the contract is not binding unless and until those terms and conditions are complied with or fulfilled. (Grounds 2 and 3). 2) Whether oral or parole evidence can be used to alter/vary the terms and conditions of the loan agreement executed by the Appellant in favour of the 1st Respondent. (Ground 1, 4 and 5).

The 4th and 5th Respondents filed no brief in this appeal and were not represented by Counsel. PROLIFERATION OF ISSUES The issues are recondite and further muddled up in this appeal. I have noticed serious flaws and defects in the way Appellant related the issues for determination to the grounds of the appeal and this cannot be glossed over, as it would not permit the consideration of this appeal on the merits.

Appellant’s Counsel had related the 4 issues for the determination of the appeal to the 5 grounds of the appeal (in the Notice of Appeal), as earlier reproduced on the page 5 of the Brief of Argument, filed on 19/10/2020, Appellant’s Counsel appeared confused when he related the issues for determination to the grounds of Appeal, as follows: “Issues No. 1, 2 and 3 are derived from Grounds 1, 2 and 4 of the Notice of Appeal, while Issue No. 2 is distilled from grounds 3 and 5 of the Notice of Appeal.

Issues 1, 2 and 3 would be taken together.” I had thought that Appellant’s Counsel made a mistake by failing to add the word “respectively”, when he said: “Issues No. 1, 2 and 3 are derived from Grounds 1, 2 and 4 of the Notice of Appeal” I wanted to pardon that mistake and to consider the Appeal on the issue 1 (as derived from ground 1); issue 2 (as from ground 2) and issue 3 (as from ground 4).

But that was frustrated on reading the next sentence by the Appellant’s Counsel, when he (Appellant’s Counsel) added: “while issue no. 2 is distilled from grounds 3 and 5 of the Notice of Appeal.” That implied that, Appellant’s Counsel, in fact, had blundered in the way he related the issues to the grounds of the Appeal. And he further demonstrated that blunder, when he said: “Issues Nos. 1, 2 and 3 would be taken, together.” (Page 5 of the Brief).

But on page 13, he argued the issue 4, separately – “Whether the learned trial judge was right when he failed to evaluate and make a finding one way or the other on all the issues raised by Appellant.” However, Appellant’s Counsel never mentioned issue 4 when he related the grounds of appeal and did not state which ground gave birth to that issue 4 (he never referred to that issue in the ARRANGEMENT OF ARGUMENTS)!

He rather referred to the issue 2, twice (when the said that issues 1, 2, and 3 were distilled from grounds 1, 2 and 4), and thereafter said “issue 2 is distilled from grounds 3 and 5.” Such arrangement of arguments has offended all known practice and procedure of arguing appeals in this Court. We have stated several times, that in this Court, appeals are argued on issues, properly distilled from or formulated on the grounds of appeal, which must flow from and predicate on the judgment appealed against, touching on the ratio decidendi of the said judgment.

See the recent case of Sadiq & Ors Vs Yunusa (2022) LPELR – 56568 (CA), wherein we held: “It is true that an issue for determination of appeal must flow from and/or derive from the grounds of the appeal, which must, in turn, be founded and predicated on the judgment appealed against, touching on the ratio decidendi of the said judgment. See the cases of Anyatonwu & 3 Ors Vs. Ezedu & 3 Ors (2018) LPELR 43809 CA, Nwaigwe & Anor Vs. Amaechi Esq & Ors (2017) LPELR – 43080 CA, Francis Vs Asugha (2020) LPELR – 50616 (CA).

In the case of Eze Vs. the State (2017) LPELR – 42006 (CA), it was held: It has been stated severally that appeals (the grounds thereof and issues there form) must be founded on the judgment of the Court, appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See the case of Ossai Vs FRN (2013) 13 WRN 87, Agboroh Vs WAEC (2016) LPELR – 40974 (CA); Shettima Vs Goni (2012) 18 NWLR (pt.1279) 413, Nnolim Vs Nnolim (2017) LPELR – 41642 (CA).

In the case of Nze Vs Aribe (2016) LPELR – 40617 (CA), this Court held: “This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi or live issue(s) in the judgment. See Anozia Vs Nnani (2015) LPELR – 24277 CA (2015) 8 NWLR (pt.1461) 241, Obosi Vs NIPOST (2013) LPELR – 21397, UNILORIN Vs Olawepo (2012) 52 WRN 42; Alataha Vs Asin (1999) 5 NWLR (pt.601) 32, Punch Nig. Ltd Vs Jumsum Nig.

Ltd (2011) 12 NWLR (pt.1260)162.” It is also the law that Appellant cannot split a ground of appeal, to generate two or more issues for determination, and cannot lump many issues for determination, together, purporting same to distill from several grounds of appeal, also lumped together. Appellant has to, clearly, specify which issue is distilled from which ground of appeal, before he can proceed to argue the issues, either singly or together.

In the recent case ofNorth West Petroleum and Gas Company Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 CA, this Court held as follows, on proliferation of issues: “…he (Counsel) split many of the grounds of appeal to donate several issues for determination, in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of Appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal.

That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot, thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and (Ors) (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41.

Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal. In that case of A. G. Imo State Vs Imo Rubber Estate Ltd & Ors (supra). This Court held: “Appellants, in particular, committed proliferation or multiplicity of the issues, as they raised multiple issues for determination of the appeal from the same ground(s) of appeal, and misled the other parties into the same error.

They (Appellants) distilled their issue one from grounds 2, 5 and 6 of the appeal and, at the same time, distilled issue 2 from grounds 1, 3, 4 and 5, and issue 3 from the same grounds 3, 5 and 6, while also using, the same grounds 2 and 5 to distil issue 4, and the same grounds 1, 5 and 6 (together with ground 9) to distil issue 5. Thus, grounds 1, 2, 3, 4, 5 and 6 were split to generate different issues – 1, 2, 3, 4 and 5, resulting in unpardonable procedural/legal confusion, absurdities and impossibilities, when it comes to the rules of argument of appeal.

The law is trite that one cannot split a ground of appeal to generate different issues for the determination of appeal. It is also the law that, once a given ground of appeal has been used, to distil an issue for determination of appeal, that ground ceases to be available to be used, either alone, or in conjunction with another ground(s) of appeal to generate another issue for the determination of the Appeal.” See Marcathy Vs Tope (2012) All FWLR (Pt. 648) 833, Nwaigwe Vs Okere (2008) All FWLR (Pt. 413) 843, Oseni Vs Bajulu (supra); Blessing Vs FRN (2013) 12 WRN 36.

See also Aduba & Ors Vs Aduba (2018) LPELR-45756 CA, Egbebu Vs IGP & Ors (2016) LPELR-40224(CA) and Okuwa & Anor Vs Ngere & Anor (2020) LPELR- 49716 CA, where we also held: “Having used the said ground one to formulate the issue one for the determination of the appeal, the said ground one of the appeal ceased to be available to donate another issue for determination of Appeal… See also Nigerian Agricultural Co-op.

Bank Ltd Vs Lewechi Ozoemelam (2016) LPELR-26051 (SC).” See also Bayero University, Kano Vs Muhammad (2022) LPELR – 56733 CA, Dakwak Vs Jos South LG Council (2021) LPELR – 55143 (CA) and Giwa Vs Ajayi & Ors (1992) LPELR – 14922 (CA), where it was held: “Issues for determination must be formulated in such a way as to relate to specific grounds of appeal.

Issues which do not relate to a ground of appeal are incompetent.” And in the case of Union Bank of Nigeria Plc Vs Anthony Ejike Mbaka & Ors CA/E/296/2017, delivered on 29/10/2021, where Appellant’s Counsel made similar errors as in this Appeal, we held: Appeal can only be argued on issue or issues, donated for the determination of the appeal, and the issues must be properly related to the grounds of the appeal, which must, in turn, flow from or relate to the ratio decidendi of the judgment, appeal against.

That constitutes the trite principles of law, governing argument of appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR – 23018 (SC); (2014) 15 NWLR (Pt.1429) 1, Ukwuoma Vs Okafor (2016) LPELR – 41505 (CA), Fajebe & Anor Vs Opanuga (2019) LPELR – 46348 (SC), North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 (CA).

See also CITEC International Estate Ltd & Ors Vs Josiah Oluwole Francis & Ors (2021) LPELR – 53083 SC, where it was held: It is also settled law that an issue for determination can only be distilled from a competent ground or competent grounds of appeal. As observed earlier, in a situation where an issue for determination is derived from both competent and incompetent grounds, the issue is liable to be struck out for incompetence. See: Jev Vs lyortyom (supra).

We have stated several times that an issue for determination of appeal can only derive from one or more grounds of appeal, combined, but a ground of appeal cannot be split to generate more than one issue for determination of appeal. And, where a ground of appeal has been used, or combined with another (or other) ground(s) of Appeal, to distill an issue for determination, that used ground(s) ceases to be available to give birth to another issue for determination of the appeal. See the recent case of North West Petroleum & Gas Co.

Ltd Vs Iloh & Ors (2021) LPELR – 55509 CA, where we held: “…The law is trite that arguing a valid ground(s) of appeal (or issue distilled therefrom) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or issue, and the entire argument.

See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA).

Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR – 42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob &Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42.

I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…” I therefore do not think the argument of this appeal is competent for us to consider it on the merits.

It is accordingly struck out, with ₦100,000.000 (One Hundred Thousand Naira) cost, against the Appellant, payable to 1st, 2nd, 3rd and 6th Respondents.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother, ITA GEORGE MBABA, J. C. A. I am in agreement with him. I also strike out the appeal for incompetence. I abide by the order as to costs contained in the leading judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.

Judgment

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment) : This appeal is against the decision of the Federal High Court, Yenagoa Judicial Division, delivered by Honourable Justice J. E. Iyang on 7th May, 2019 in Suit No. FHC/YNG/CS/7/2018, wherein the learned trial Judge dismissed the Appellant’s preliminary objection challenging the jurisdiction of the Court to entertain the 1st to 3rd Respondents’ suit. Aggrieved by the said decision, it appealed to this Honourable Court vide a notice of appeal filed on 21st May, 2019 in which it sets out three grounds of appeal.

In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of argument. Appellant’s brief of argument is dated and filed 28th April, 2020, but deemed properly filed on 20th September, 2021. In the said brief of argument, three issues were formulated for the determination of this appeal, thus: 1. “Whether the lower Court has subject matter jurisdiction over the instant suit which is simply for the recovery of a sum of money allegedly agreed by the parties? ​2. Whether the lower Court was right when it held that the instant suit is not statute-barred? 3.

Whether the lower Court was right when it held that the instant suit was not an abuse of Court process notwithstanding that the parties and the subject matter in the suit are the same with that of Suit No. FHC/YNG/CS/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State) v. NAOC?” In the 1st to 3rd Respondents’ brief of argument dated 28th September, 2020 and filed on 30th September, 2020 but deemed properly filed on 20th September, 2021, two issues were formulated as follows: 1.

“Whether upon careful consideration of the circumstances, the lower Court was right to have held that the Federal High Court has subject matter jurisdiction over claims of compensation duly paid for oil spill damage in consonance with the requirements of the Oil Pipeline Act. 2.

Whether the lower Court was right when it held that the instant suit did not arise from a contractual transaction or claims of simple contract as same pertains to compensation for oil spill damage?” ​In the same vein, the 4th to 6th Respondents filed a brief of argument dated 3rd August, 2020 and filed 4th August, 2020 but deemed properly filed on 20th September, 2021. In the said brief, three similar issues to those formulated by the Appellant were distilled as follows: 1.

“Whether the lower Court has subject matter jurisdiction over the instant case which is founded on claim for compensation for oil spillage in connection with the oil mining activities of the Appellant? 2. Whether the lower Court was right when it held that the instant suit is not statute-barred? 3. Whether the lower Court was right when it held that the instant suit was not an abuse of Court process notwithstanding that the parties and the subject matter in the suit are the same with that of Suit No.

FHC/YNG/CS/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State) v. NAOC?” ​Two separate reply briefs of argument dated 23rd September, 2021 were filed on 24th September, 2021, in response to the respective briefs of arguments filed on behalf of the 1st to 3rd Respondents and 4th to 6th Respondents. I shall consider the relevant submissions made in the reply briefs as the need arises.

Meanwhile, having had the benefit of considering the issues raised by the parties and the arguments canvassed thereon, I am of the opinion that the issues formulated by the Appellant are apt for the determination of the present appeal. I shall therefore consider the appeal on the backdrop of the issues formulated by the Appellant.

APPELLANT’S SUBMISSIONS On the first issue formulated by the Appellant, it is the submission of counsel that the learned trial Judge did not properly review the reliefs and averments contained in the 1st to 3rd writ of summons and statement before arriving at the conclusion that the subject matter of the instant suit cannot be considered as a contract. Relying on paragraphs 9, 17, 20, 21, 24, 25, 27 and 28 of the statement of claim, counsel argued that the subject matter of this suit is purely contractual, particularly as the elements of a valid contract has been satisfied by the parties.

He noted that paragraph 17 of the statement of claim shows that an offer of N420,000,000.00 (Four Hundred and Twenty Million Naira) was made to Late Chief M.E.A. Bipeledei on behalf of the 1st to 3rd Respondents; and paragraph 24 shows that the 1st to 3rd Respondents accepted the offer. According to counsel, the consideration can be gleaned from paragraphs 24 and 25 of the statement of claim, which is the forbearance by the 1st to 3rd Respondents to sue the Appellant; and the pleadings also disclosed the intention to enter into legal relations. The case of ABIODUN & ANOR Vs.

AJISAFE & ANOR (2018) LPELR – CA/IB/55/2012. ​Counsel noted that from the reliefs sought by the 1st to 3rd Respondents, they are seeking to recover money agreed upon by the parties (by way of negotiation) and allegedly deposited in an interest-yielding account. Counsel further argued that the instant case is not an oil spill claim for which the jurisdiction of the Federal High Court can be invoked, but a claim for enforcement of an alleged contract.

It is the further submission of Counsel that since the original cause of action (alleged oil spill from the Appellants’ facilities in Gbanraun Kingdom) has been superseded by the alleged agreement between the parties. The case of ABEY & ORS Vs. ALEX & ORS. [1999] 14 NWLR (Pt. 637) 148 was relied upon by the Appellant in support of the submission. Counsel also contended, relying on the decision in the cases of ONUORAH Vs. KRPC LIMITED [2005] 6 NWLR (Pt. 921) 393 at 405; paras A–D; ADELEKAN Vs.

ECU-LINE NV [2006] 12 NWLR (Pt. 993) 33, that the Federal High Court lacks jurisdiction an action for the enforcement of simple contract even if such contract relates to causes or matters enumerated under Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”). The case of NKUMA Vs. ODILI [2006] 6 NWLR (Pt. 977) 587 was relied upon to submit that the mere mention of “oil”, “spillage”, “minerals” or “pipelines” in a suit does not automatically invoke the jurisdiction of the Federal High Court.

On the second issue, Appellants’ counsel submits that even if the lower Court was right that the present suit is founded on oil spill, the action is statute-barred as same was not commenced within the five (5) years limitation period prescribed by Section 16 of the Limitation Law of Bayelsa State (the “Limitation Law”). The cases of EGBE Vs. ADEFARASIN (No. 2) [1987] 1 NWLR (Pt. 47); JULIUS NDUKA Vs. EDWIN OGBONNA [2011] 1 NWLR (Pt. 1227) 153 at 168, paras C–E; GRAINS PROD. AGENCY Vs.

EZEGBULEM [1999] 1 NWLR (Pt. 587) 399 on what the Court should rely on in determining when an action becomes statute barred. He submitted that from the averments in paragraphs 26 and 28 of the statement of claim, the 1st to 3rd Respondents’ right of action accrued in 2005 or 2009. This is because Suit No.

OHC/C/17/2001 relating to the rightful claimants to the money was determined in 2005 and the 1st to 3rd Respondents have been aware since 2005 that the Appellant has refused to pay the compensation money to them despite repeated demands; or because the Appellant refused to honour the 1st to 3rd Respondents’ solicitor’s demand in 2009; for the payment of the negotiated compensation.

In addition, Counsel argued that even if the action is based on oil spill as held by the learned trial Judge, the limitation law of a state is applicable to actions founded on federal legislations, such as the Oil Pipelines Act, and it is immaterial that the action was filed at the Federal High Court, citing the ratio of the decisions in ETIM Vs. IGP [2001] 11 NWLR (Pt. 724) 266; SHELL DEVELOPMENT COMPANY NIGERIA LIMITED Vs.

CHIEF ZEDIE WILLIAMS & 2 ORS. (unreported judgment of the Court of Appeal, Port Harcourt Judicial Division delivered on 6th December, 2017); SHELL PETROLEUM DEVELOPMENT COMPANY Vs. CHIEF GOODLUCK MEBURU (2013) LPELR–21889 (CA); SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Vs. DODOYE WEST (2018) LPELR–44290 (CA); ASABORO Vs. PAN OCEAN OIL CORP. (NIG) LIMITED [2017] 7 NWLR (Pt. 1563) 42. The Appellant’s learned Counsel submitted that the decision in BENSON Vs.

MOBIL PRODUCING (NIGERIA) UNLIMITED [2014] ALL FWLR (Pt. 722) 1821–1822, which the learned Judge relied on to hold that the limitation law of Bayelsa State cannot apply to claims brought under Federal Legislation is no longer a good law in view of the Supreme Court decision in ASABORO Vs.

PAN OCEAN OIL CORP. (NIG.) LIMITED (supra). ​Appellant’s counsel maintained that the instant suit is statute-barred having been commenced after five years from the date the cause of action arose and the 1st to 3rd Respondents cannot assert any claim in respect of the subject matter before the Court, relying on the decisions in ADEOSUN Vs. JIBESIN [2001] 11 NWLR (Pt. 724) 290 at 314, para F; SPDCN LIMITED Vs. AMADI [2010] 13 NWLR (Pt. 1210) 82 at 119.

It is the argument of the Appellant’s counsel that the instant suit constitutes an abuse of Court process, having been commenced during the pendency of Suit No. FHC/YNG/CS/10/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State v. NAOC) (the “Previous Suit”). The cases of UMEH & ANOR Vs. IWU & ORS (2008) LPELR – SC. 60/2007, 21 to 22, paras F – A; A.G., KWARA STATE & ANOR Vs. LAWAL & ORS. (2017) LPELR – SC. 321/2011, 16 – 17, paras C – A.

It is the submission of Counsel that the ingredients of abuse of Court process exists in this case, that is, the parties in both actions are the same since the Plaintiffs in both suits are members of Gbanraun Kingdom, citing OTAPO Vs. SUNMONU [1987] 2 NWLR (Pt. 58) 587 at 623; the subject matter in both suits is the same/similar being the recovery of negotiated sum of money (compensation) arising from the oil spill of 1997 allegedly deposited by the Appellant in an interest yielding account and accrued interest thereon. The cases of UMEH Vs. IWU [2008] 8 NWLR (Pt. 1089) 225 at 260; ALI Vs.

ALBISHIR [2008] 3 NWLR (Pt. 1073) 94 at 143 were also cited by Counsel before he submitted that the reliefs sought in the two suits are the same. Counsel urged the Court to strike out/dismiss the matter as the trial Court has no jurisdiction to proceed with same. 1st – 3rd RESPONDENTS’ SUBMISSION On the first issue formulated by Counsel, it is submitted on behalf of the 1st to 3rd Respondents relying on the decisions ALAGOMA & ORS. Vs. SPDC LIMITED (2013) LPELR–21394 (CA); CHEVRON (NIG) LIMITED Vs.

IMO STATE HOUSE OF ASSEMBLY & ORS. (2016) LPELR–41563 (CA), that the instant suit borders on compensation for oil spills as settled by the affected parties. Counsel further submitted that the fact that a negotiation is governed by the principles of contract does not ipso facto make it a contract simpliciter; that no contract has been executed by the parties in this case, relying on MRS. T.C. CHUKWUMA Vs. MR. BABAWALE IFELOYE (2008) LPELR–862 (SC). The cases of ONWUDIWE Vs. FRN [2006] 10 NWLR (Pt. 988) 428; AMADI Vs.

SOKOTO L.G. [2012] 5 NWLR (Pt. 1292) 181 were relied upon in support of the submission that the nature of a claim determines the nature of a suit or cause of action and the competence of a Court to entertain the suit. Item 19 of the Second Schedule to the Constitution; Section 19 of the Oil Pipelines Act; the cases of BARRY & 2 ORS. Vs. OBI A. ERIC & 3 ORS. [1998] 8 NWLR (Pt. 562) 404 at 416; SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Vs. OTELAMABA MAXON & ORS. [2001] FWLR (Pt. 47) 1030; C.G.G. (NIG.) LIMITED Vs.

ASAAGBARA [2001] 1 NWLR (Pt. 693) 155, were relied upon by counsel to submit that the instant suit arises from the Appellant’s crude oil mining activities and the lower Court was justified to assume jurisdiction. It is the submission of counsel, relying on the decisions in MOBIL PRODUCING (NIG.) UNLIMITED Vs. DAVIDSON [2020] 1 NWLR (Pt. 1722) 1–11; DAIMLER CO. LIMITED Vs.

CONTINENTAL TYRE & RUBBER CO. (GREAT BRITAIN) LIMITED (1916) 2 AC 307, that owing to the principle of continuous damage from the oil spill, the instant suit is not a proper case for the application of the Limitation Law of Bayelsa State. On the second issue, it is the submission of the 1st to 3rd Respondents’ Counsel, relying on Section 11(5) of the Oil Pipeline Act, and the case of NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) & ANOR Vs.

CHIEF STEPHEN ORHIOWASELE & ORS (2013) LPELR–24710 (SC) that the 1st to 3rd Respondents’ claim borders on their entitlement to compensation for pollution and damage resulting from the Appellant’s mining operations and same is actionable at the Federal High Court since oil pipeline is an exclusive legislative issue.

It was further argued that even if the 1st to 3rd Respondents’ action is not about entitlement to claim for compensation, but one which arose from a negotiation simpliciter without regard to subject matter and surrounding circumstances, it nevertheless would not constitute a simple contract, citing MRS. T.C. CHUKWUMA Vs. MR. BABAWALE IFELOYE (2008) LPELR – 862 (SC). ​Counsel further submits that the decision in ASABORO Vs. PAN OCEAN OIL CORP. NIG.

LTD. (supra) relied upon by the Appellant is of limited application by reason of its ratio and the fact that it borders on land matters, while the instant suit borders on enforcement of right to compensation for oil spill. He maintained that the decision in the case of BENSON Vs. MOBIL PRODUCING (NIGERIA) LIMITED (supra) relied upon by the learned trial Judge is a better law and applicable to the instant suit. The case of PRINCE TOM EDEBOR Vs. ELF PETROLEUM NIGERIA LIMITED (2011) LPELR-4878 (CA) was also cited by counsel.

On the issue of abuse of Court process, Counsel noted that the parties in both suits are different, the subject matter is not the same and the two cases are materially and fundamentally different. He relied on the case of NDIC Vs. UBN PLC [2015] 12 NWLR (Pt. 1473) 246 in support of his contention that the present suit is not an abuse of Court process. 4TH–6TH RESPONDENTS’ SUBMISSION The learned counsel to the 4th to 6th Respondents submits that it is the Plaintiff’s claim that is considered in determining whether or not a Court has jurisdiction, citing GOLDMARK (NIG.) LIMITED Vs. IBAFON CO.

LIMITED ​[2012] 10 NWLR (Pt. 1308) 291; FBN PLC Vs. GOVT. OF ONDO STATE [2012] 11 NWLR (Pt. 1312). It is the submission of counsel that from the reliefs sought by the 1st to 3rd Respondents in this case, their claim is for compensation for an oil spillage which allegedly occurred sometime in 1997 in connection with the Appellant’s oil mining activities.

Counsel argued that it was the Appellant that unilaterally resolved to pay the negotiated sum in full and final settlement of all claims arising from the 1997 oil spillage as against the sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) demanded by the 1st to 3rd Respondents; that there was no contractual relationship with the Appellant in anticipation of the payment of compensation. Section 251(1) (n) of the Constitution and the case of SPDC (NIG.) LIMITED Vs. LALIBO [2009] 14 NWLR (Pt. 1162) 564; FOLKSYNTHESIS LIMITED Vs.

GAPUMA (UK) LIMITED [2017] 8 NWLR (Pt. 1566) 150 at 165, paras C–D, were relied upon to argue that the subject matter of the instant suit, which is the same as in Suit No. OHC/1/2015, falls within the exclusive jurisdiction of the lower Court and does not border on simple contract. On the second issue, Counsel noted that the Appellant had by its letter dated 22nd May, 1998 addressed to the Late Chief M.E.A. Bipeledei confirmed the deposit of the compensation sum in an interest yielding account pending the determination of Suit No. OHC/9/98.

He then submits that the mere fact that the Appellant refused to respond to the letters of the Respondents’ community through their community demanding for payment for compensation does not ipso facto mean that the Respondents community’s cause of action has accrued and elapsed as acknowledgment of debt is an exception to an action being statute barred.

He further submits that it is only when the Appellant specifically denies its obligation or liability to pay any form of compensation due to the Respondents’ Gbanraun Community that their right of action can accrue. ​It is the further submission of counsel that even if the subject matter in this suit is a simple contract on a negotiated compensation agreement, continuance of damage or injury is an exception to a cause of action that is statute-barred and since the Respondents are still suffering from injuries sustained as a result of the 1997 oil spillage, the present suit is not statute-barred.

Counsel also relied on the decision in SIFAX (NIG.) LTD & ORS Vs. MIGFO NIG. LTD & ANOR [2018] 9 NWLR (Pt. 1623) 138 on the position of law that where an action is filed in a Court that lacks jurisdiction but is subsequently filed in a Court vested with jurisdiction, time will be frozen and shall not run against the party during the period of litigation. The 4th to 6th Respondents’ Counsel noted that in the aftermath of the oil spill incident, the Respondents’ community commenced Suit No. OHC/9/1998 between HRH E. G. Ojogbo & Ors. Vs.

NAOC in 1998 and an out of Court settlement was reached; thereafter, Suit No. OHC/1/2015 between Hight Chief Ebikeseye Bipeledei & Ors. Vs. NAOC was commenced but struck out on grounds of jurisdiction and later Suit No. FHC/YNG/CS/10/2016 was also initiated and same is still pending. It is the submission of counsel that the Limitation Law of Bayelsa State is inapplicable to this suit. ​On the third issue, Counsel curiously conceded that the present issue is an abuse of Court process and the issue be resolved in favour of the Appellant.

It is the submission of Counsel that the previous suit constituted in Suit No. FHC/YNG/CS/10/2016 was commenced by the 4th to 6th Respondents in their representative capacity on behalf of Kpuruwei Family/Asitubu (Ama) Community in Gbanraun Kingdom on the same subject matter and their capacity has never been challenged by the 1st to 3rd Respondents. Counsel further argued that the parties in the present suit and the previous suit are related by blood and the reliefs being sought by the parties are the same.

RESOLUTION I must quickly say that our law does not recognize a situation where, in the absence of a cross-appeal or respondent’s notice, a Respondent will depart from its traditional role of defending the decision being appealed against by the Appellant. Certainly, as the Supreme Court had held in the case of CAMEROON AIRLINES Vs.

OTUTUIZU (2011) LPELR-827(SC), the role of the Respondent in an appeal is to defend the judgment of the trial Court, but where the Respondent is not comfortable with a finding (not the entire judgment) in the judgment which he considers fundamental, he can only do so by filing a cross-appeal.

As noted earlier, the 4th to 6th Respondents’ counsel had, while canvassing argument in connection with the issue as to whether the instant suit constitutes an abuse of Court process, urged this Court to resolve the said issue in favour of the Appellant and set aside the learned trial Judge’s decision that the present suit does not amount to an abuse of Court process. In the event that the 4th to 6th Respondents do not agree with the reasoning of the learned Judge, they ought to file a cross-appeal and not argue against the decision of the trial Judge in their Respondents’ brief of argument.

I need not say more on this point. Such a conduct borders on misconduct which made the position being argued by the said learned counsel as one involved in a subtle collusive suit in the circumstance. ​Meanwhile, in resolving the issues nominated by the Appellant and which has been adopted for determination of this appeal, I shall proceed to first consider and determine the third issue which borders on the question as to whether the present suit constitutes an abuse of Court process, having regard to the pendency of Suit No. FHC/YNG/CS/10/2016?

The position of the law which has been handed down by the apex Court is that abuse of process is the improper use of the judicial process by a party in litigation. It may occur in various ways, predominantly demonstrated by the institution of multiplicity of actions on the same subject matter between the same parties. Another incidence is the institution of actions by same parties simultaneously in different Courts even though on different grounds, where the two similar processes are used in respect of the exercise of the same right in order to achieve the same goal.

See the cases of IKINE & ORS Vs. EDJERODE & ORS (2001) LPELR-1479 (SC); ASHEY AGWASIM & ANOR Vs. DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36. Put simply, abuse of Court process entails the usage of the process of the Court mala fide and improperly, and in most cases, to the annoyance and irritation of another party.

Therefore, where it is found that two or more actions have been commenced before a competent Court on the same subject matter and the parties in the two suits are the same, the only inference that will be drawn is that the intention, purpose and bringing the suit before the Court, which is later in time, is to harass, irritate and annoy the other party against whom the suit was commenced; and also interfere with the administration of justice. ​In connection with the issue before this Court now, I have carefully considered the relevant constituents of Suit No.

FHC/YNG/CS/10/2016 and I found from the statement of claim filed in that suit contained in pages 85 to 88 of the record of appeal that the suit was commenced by the 4th to 6th Respondents in representative capacity as representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State.

In addition, the principal relief sought by the Plaintiffs in the said suit is for an order directing the Appellant herein, to pay to the Plaintiffs the sum of N1,916,200,000.00 (One Billion, Nine Hundred and Sixteen Million, Two Hundred Thousand Naira) representing the principal sum and accrued interest of the Plaintiffs’ money deposited in an interest yielding account by the Appellant since 1998.

On the other hand, the suit leading to the present appeal commenced by the 1st to 3rd Respondents for themselves and as representing members of the Kpuruwei Family/Asitubu (Ama) Community/Settlement, Gbanraun Kingdom for declaratory and injunctive orders of Court to the effect that they are the rightful beneficiaries of the negotiated compensation money deposited by the Appellant in an interest yielding bank account plus accrued interest thereon arising from the Appellant’s oil spillage that precipitated the 1st to 3rd Respondents’ Suit No. OHC/9/98 between HRH Ojogbo & Ors. Vs. NAOC.

See pages 7 to 13 of the record of appeal. ​Premised on the above, it is evident that the parties in the present suit and Suit No. FHC/YNG/CS/10/2016 are the same. It is however noteworthy that Suit No. FHC/YNG/CS/10/2016 was commenced by the 4th to 6th Respondents in representative capacity and representing the interest of the entire Gbanraun Kingdom, which the 1st to 3rd Respondents belongs. As the learned Counsel for the Appellant rightly submitted, it is of no moment that the 1st to 3rd Respondents are not named as parties in Suit No. FHC/YNG/CS/10/2016.

In law, a representative action covers and binds person(s) who even though are not named specifically as a party, but belongs to the class represented. The 1st to 3rd Respondents in this case have expressed on the face of processes filed in the suit, that they are members of the Gbanraun Kingdom to which the 4th to 6th Respondents are representing in Suit No. FHC/YNG/CS/10/2016, even though in this case the 1st to 3rd Respondents are representing the Kpuruwei Family/Asitubu (Ama) Community.

As a matter of fact, the evidence on the face of the relevant documents contained in the record of appeal before this Court, shows that the claim in the two suits is for the recovery of the negotiated sum of money purportedly due to the respective Plaintiffs from the Appellant in the aftermath of the 1997 oil spill. If the 1st to 3rd Respondents are not pleased with the purported representation of their interest in the suit commenced at the instance of the 4th to 6th Respondents or that the 4th to 6th Respondents do not have their authority to initiate Suit No.

FHC/YNG/CS/10/2016 as they have alleged in their statement of claim in this case, the proper step to take will be to join the said suit which is pending and properly ventilate their grievances. It is not open for them to commence the present suit; that is an improper use of the judicial process.

It is my firm view, which I believe to be the correct one, that the present suit amounts to an abuse of Court process and once, as in the instant case, a Court is satisfied that processes before it, are an abuse of its processes, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process. Nevertheless, and out of abundance of caution, I shall consider the issue as to whether the lower Court – a Federal High Court, is competent to entertain and determine the 1st to 3rd Respondents’ claim as constituted.

The law is trite and quite elementary that provisions of the law are not to be considered in vacuo but in the context of the claim before the Court. See ITPP LTD Vs. UBN PLC [2006] 2 NWLR (Pt. 955) 483. My noble Lords, for ease of reference, the reliefs sought by the 1st to 3rd Respondents in the statement of claim filed at the lower Court are reproduced below: 1.

“A Declaration that the Plaintiffs are the rightful beneficiaries of the negotiated compensation money deposited by the 1st Defendant in an interest yielding bank account plus accrued interest arising from the 1st Defendant’s oil spillage that precipitated Plaintiff’s Suit No. OHC/9/98 between HRH Ojogbo & Ors. Vs. NAOC. 2.

A Declaration that the 2nd–4th Defendants who have no enforceable right and are not authorised by the people of Gbanraun Kingdom or the herein Plaintiffs cannot on their behalf demand, receive money or institute any suit against the 1st Defendant in respect of the money deposited by the 1st Defendant in an interest yielding bank account which is the subject matter of in this suit. 3.

An Order directing the 1st Defendant to pay to the Plaintiffs through their Solicitor, Chief Ladi Rotimi-Williams, SAN a total sum of N13,483,325,824.00 (Thirteen Billion, Four Hundred and Eighty-Three Million, Three Hundred and Twenty-Five Thousand, Eight Hundred and Twenty-Four Naira Only) being… 4. An Order directing that interest at 21% per annum on the negotiated compensation sum shall be in force until the judgment is entered and thereafter 10% interest on outstanding judgment debt until it is fully paid to the Plaintiffs by the 1st Defendant. 5.

An Order of perpetual injunction restraining the 2nd–4th Defendants, their agents, servants and/or privies from further acts of laying claim to or on behalf of the herein Plaintiffs or the entire Gbanraun Kingdom in respect of the said Plaintiffs money deposited.” The view held by the trial Judge, having had the benefit of considering the relevant averments and reliefs sought in the statement of claim and reproduced above, is that the 1st to 3rd Respondents’ action borders on a claim for entitlement to compensation for pollution and damages resulting from the mining operations and related activities of the Appellant, who is the holder of an oil pipeline license and therefore actionable in the Federal High Court.

With respect, it ought to be beyond disagreement that the case of the 1st to 3rd Respondents is predicated on two main limbs, that is, the fact that (a) the 1st to 3rd Respondents and the class they represent, are the persons entitled to be paid the negotiated compensation sum deposited into an interest yielding account by the Appellant; (b) that at the time of initiating the present suit, the Appellant has refused to release the negotiated compensation sum to the 1st to 3rd Respondents, who are the alleged beneficial owners of the said money.

It is important to reproduce the relevant portion of the statement of claim filed at the lower Court and they read as follows: “14. The Plaintiffs aver that upon failure of the 1st Defendant to comply with the Plaintiffs Solicitor’s pre-litigation letter, representatives of the Plaintiffs Kpuruwei Family instituted action at the Bayelsa State High Court in Suit No. OHC/9/98 against the 1st Defendant. 15. Plaintiffs further states that the later Chief M.E.A.

Bipeledei who is the father of the 2nd Defendant was before his demise in 2009, the 1st Defendant’s contact person/link man regarding its affairs and operations in Gbanraun Kingdom. 16. The Plaintiffs aver that the late Chief M.E.A. Bipeledei, is from Agege Compound in Aquobiri in Gbanraun Kingdom and is not a member of Kpuruwei Family, the beneficial owners and occupiers or inhabitants of the 1st Defendant’s spillage impacted area known as Asitubu (Ama) settlement/community in Gbanraun Kingdom. 17. The Plaintiffs states that the late Chief M.E.A.

Bipeledei informed them that the 1st Defendant resolved to pay only a total negotiated compensation sum of N420,000,000.00 (Four Hundred and Twenty Million Naira) in full and final settlement of all claims arising from the said spillage as against the sum of N3.5 Billion Naira demanded by the Plaintiffs, which formed part of the claims against the 1st Defendant in Suit No. OHC/9/98… 20.

The Plaintiffs aver that the 1st Defendant at all materials times is aware that the Plaintiffs are the rightful beneficiaries to compensation arising from the said spillage but rather than pay them the negotiated sum, the 1st Defendant has refused to fulfil his obligations but instead claimed that it was waiting for the determination of Suit No. OHC/9/98 claiming that the rightful Claimants to compensation in respect of the massive oil spillage is in contention. 21. The Plaintiffs further aver that the 1st Defendant by a letter dated 2nd May, 1998 addressed to Late Chief M.E.A.

Bipeledei confirmed deposit of the total negotiated compensation sum in an interest yielding account pending the determination of the suit and also, that it shall be compelled to pay the money to any person adjudged by the Court to be entitled to it even though the beneficial owners to the oil spillage impacted Asitubu settlement is not in dispute or subject to any claim… 30.

Plaintiffs state that sometime in 2015, the 2nd–4th Defendant who have no enforceable right in the res and subject matter to this suit and who are not authorised by the people of Gbanraun Kingdom or the herein Plaintiffs surreptitiously instituted a suit at the Bayelsa State High Court in a representative capacity for themselves and on behalf of the Plaintiffs who are natives of Gbanraun Community… 32.

The Plaintiffs aver that the 2nd–4th Defendants again trampling on the Plaintiffs’ right to the compensation money proceeded to the Federal High Court, Yenagoa, Bayelsa State, even though they possess no enforceable right in the res and were never authorised by the Gbanraun people commenced a fresh action in a representative capacity in Suit No. FHC/YNG/CS/10/2016 seeking for an order of Court for the money to be paid to them… 33.

The Plaintiffs further state that as at the time of filing this suit, the 1st Defendant is yet to release the negotiated compensation sum to the Plaintiffs who are the beneficial owners of the said money….” Reading the above reproduced paragraphs, can it be said that the 1st to 3rd Respondents’ suit falls within the matters or causes within the exclusive jurisdiction of the Federal High Court in terms of the provision of Section 251(1) of the Constitution.

I think the mere fact that the negotiated compensation sum is in connection with the Appellant’s oil mining activities, (the 1997 oil spill), prompted the Court into deciding that the suit can be entertained by the Federal High Court.

The learned trial Judge obviously became swayed by the fact that the 1st to 3rd Respondents are claiming for the negotiated sum purportedly agreed to be paid by the Appellant following the impact of the oil spill on the Gbanraun Community, without considering the peculiar aggregate of facts which, when combined, formed the basis of the action before the lower Court.

From the averments contained in the statement of claim, it is clear that there is obviously no dispute or contention between the 1st to 3rd Respondents on one hand and the Appellant on the other as to the quantum of compensation or degree in monetary terms, due to the 1st to 3rd Respondents.

The cause of action in the matter leading to the instant appeal stems from the alleged refusal of the Appellant to pay the negotiated compensation to the 1st to 3rd Respondents and I am inclined to say that it is immaterial that the agreement to pay the said compensation sum arose from a claim bordering on oil spillage.

What is evident, and contrary to the decision of the learned trial Judge, is that the 1st to 3rd Respondents are seeking the intervention of the Court to hold the Appellant bound to pay the sum it had committed itself to pay to the persons affected by the oil spill and the basis upon which the claims in earlier suit OHC/9/98 was compromised. I am unable to agree with the Respondents that this suit is not for the enforcement of contract. Nothing can be further from the truth.

The relevant question for the purpose of the jurisdictional test is: can the matter be decided without reference to the provisions of the Oil Pipelines Act, which contains the statutory basis upon which a claim for compensation in connection with oil and mining activities can be sustained. I am inclined to answer this in the affirmative, the matter can be effectively and effectually determined without recourse to the Oil Pipelines Act.

I am of the view, that the suit before the lower Court does not have the character of claim properly situated within the causes or matters enumerated under Section 251(1) of the Constitution. Indeed, the jurisdiction of a Court or Tribunal can never be the subject of negotiation between parties, nor can it be waived, jurisdiction cannot be conferred on a Court by consent or agreement of the parties. It is fundamental and indispensable, it is the foundation upon which decisions of Court are based, it is the footing upon which the decisions of Court are founded. See IJEBU-ODE L.G. Vs.

ADEDEJI [1991] 1 NWLR (Pt. 166) 136; UTIH & ORS Vs. ONOYIVWE [1991] 1 NWLR (Pt. 166) 166. ​In the light of this analysis, it is my respectful conclusion on this issue that the Federal High Court lacks the jurisdiction to adjudicate upon the claim as constituted before it.

In the light of the decision that the present suit amounts to an abuse of Court process and that the lower Court is not competent to adjudicate upon the 1st to 3rd Respondents’ claim as constituted, I am of the opinion that any other issue in this appeal has become academic and this Court will not waste its precious and scarce judicial time on them. The curtain shall therefore be drawn on this appeal at this point. In the circumstance, I find merit in the Appellant’s appeal and it is hereby allowed. The judgment of the Federal High Court, coram Honourable Justice J. E.

Iyang delivered on 7th May, 2019 in Suit No. FHC/YNG/CS/7/2018 is hereby set aside. The suit in the lower Court is accordingly dismissed, particularly on the ground that it amounts to an abuse of Court process. See the Supreme Court’s decision in ARUBO V. AIYELERU (1993) 8 NWLR (Pt.280) 126 AT 142 per Nnaemeka Agu, JSC Rtd of blessed memory. Parties are for these reasons, ordered to bear their respective costs of prosecuting the instant appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Kolawole, J.C.A., with nothing extra to add.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My noble brother, GABRIEL OMONIYI KOLAWOLE, JCA afforded me the opportunity of reading in advance, the lead judgment just delivered as one of the panelists. I agree with my learned brother that the suit before the lower Court has not been properly constituted in accordance with the provision of Section 251 of the Constitution. The reasoning and conclusion contained in the leading judgment is agreed upon by me. I also find merit in this appeal and allow it. The judgment of the lower Court delivered on the 7th of May, 2019 by Hon. Justice J. E. Iyang in Suit No.

FHC/YNG/CS/7/2018 is hereby set aside. I abide by the consequential orders in the leading judgment.

Judgment

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision in the ruling of the High Court of Jigawa State, sitting in Birnin Kudu per A.Y. Suleiman, J. (hereinafter referred to as “the trial Court”) in Suit No. JDU/FHR/05/2019, delivered on the 14th of November, 2019.

The Appellants herein were Applicants before the trial Court where on the 27th of September, 2019, they filed against the Respondents an application for the enforcement of their Fundamental Rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009 seeking the following reliefs: “1.

A DECLARATION that the Invitation, Arrest, Detention, Intimidation, Threat, Harassment of the Applicants by the 1st and 2nd Respondents acting on the complaint by the 3rd Respondent which arose from a civil transaction which completely took place in Gwaram l.G.A., Jigawa State is unconstitutional, unlawful and ultra vires which constitutes violations of the Applicants Fundamental Human Rights; Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing and Right to Freedom of Movement, as guaranteed by Sections 33, 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). 2.

AN ORDER of perpetual injunction restraining the 1st, 2nd and 3rd Respondents either by themselves, agent, privies or associates from further; inviting, arresting, handcuffing, intimidating, harassing, detaining and threatening, the Applicants and/or their sureties over the civil transaction entered between the Applicants and the 3rd Respondent. 3.

AND ORDER of this Honourable Court directing the 1st, 2nd and 3rd Respondents either by themselves, agents, privies or associates to forthwith withdraw from having any further dealings in respect of the civil transaction entered between the Applicants and the 3rd Respondent. 4.

AN ORDER of this Honourable Court directing the Respondents to pay to the Applicants jointly and severally a total sum of N5,000,000:00 (Five Million Naira) only as damages for breach of their Fundamental Rights; Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing and Right to Freedom of Movement, as guaranteed by Sections 33, 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999, (as Amended).” ​ The grounds upon which the foregoing reliefs were sought are reproduced verbatim as follows: “1.

The Applicants are indigenes of Jigawa State and are both residing at Fagam, Gwaram Local Government Area of Jigawa State. 2. The 1st Respondent is a Federal Government Agency in charge of prosecuting financial crimes all over Nigeria. 3. The 2nd Respondent is the Zonal Head of the 1st Respondent before whom a complaint was lodged by the 3rd Respondent. 4. The 3rd Respondent is a business man and individual residing at Bauchi town, Bauchi State. 5.

The 3rd Respondent reported the Appellants at the 1st and 2nd Respondent’s office in Gombe State claiming some money out of a purely civil transaction between him and the Applicants. 6.

The 3rd Respondent decided to report the Applicants before the 1st and 2nd Respondents in both Bauchi and later Gombe State despite the fact that all the elements of the transaction entered between the Applicants and the 3rd Respondent happened in Gwaram, Jigawa State as a result of which the Applicants were arrested, invited by both Police in Bauchi State and 1st and 2nd Respondents in Gombe State respectively, 7.

Consequent upon their arrest and invitation by both Police at Bauchi and the 1st and 2nd Respondents at Gombe State, the applicants were unlawfully detained, harassed, intimidated, threatened, embarrassed and starved which occasioned breach to their unconstitutionally guaranteed Human rights. 8.

The Applicants did not commit any offence or reasonably suspected to have committed any criminal offence known to law SAVE that the Respondents wanted to intimidate and embarrass the Applicants, of which the Respondents have succeeded through their unlawful invitation and detention before releasing the Applicants on bail without affording them right of fair hearing with strong warning to the Applicants to pay the money claim against them in favour of the 3rd Respondent, failure of which will force the 1st and 2nd Respondents to further detain and deal with the Applicants at the next appointed day which is 30th September, 2019. 9.

The Applicants’ Rights to Life, Dignity of Human Person, Personal Liberty, Fair Hearing and Freedom of Movement, as guaranteed by Sections 33, 34, 35, 36 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) have been infringed by the Respondents.” The application of the Appellants was supported with an affidavit of twenty-four paragraphs and some annexures. The affidavit was deposed personally by the 1st Appellant. The relevant averments in the said affidavit are contained in paragraphs 4 to 21 thereof.

For good grasp and easy referencing, I hereunder set out the said paragraphs 4 to 21 unedited as follows: “4. That sometimes in 2017, the 3rd Respondent was introduced to me by one Ali Chiroma of Fagam Town, Gwaram Local Government Area, Jigawa State. 5. That the 3rd Respondent in company of the said Ali Chiroma met me at Fagam Town Gwaram L.G.A, Jigawa State with the view to get some Economic Woods Known as Madrid Wood for the 3rd Respondent from some of our Forest at Gwaram L.G.A. of Jigawa State. 6.

That I rendered my assistance to the 3rd Respondent by facilitating and securing permits from relevant authorities allowing the 3rd Respondent to get some quantities of the woods from Gwaram L.G.A. Jigawa State.

7. That the 3rd Respondent incurred all necessary expenses which include payment made in favour of the Ministry of Environment, Jigawa State in a total sum of N560,000 (Five Hundred and Sixty Thousand Naira) only which was paid through me for the Woods.

8. That after settling all the financial commitments by the 3rd Respondent with the relevant authorities, the 3rd Respondent sent his men (about 30 in number) to Jigawa State with Machines where they cut and arranged the Madrid Woods in three (3) different Forests at Shalin Village, Dangulam Village, and Shinau Village all of Gwaram L.G.A. Jigawa State. 9.

That the agent of 3rd Respondent loaded the Madrid Wood in their trucks with the view to transport the same outside Jigawa State but was intercepted by men and Officers of Nigerian Police Force (Special Anti-Robbery scout) who were on duty within Gwaram L.G.A., Jigawa State. 10. That after series of consultations with relevant authorities in Jigawa State, two (2) out of the Three (3) trucks of the intercepted goods were released to the 3rd Respondent. 11.

That later on towards the end of year 2017, the 3rd Respondent reported the matter before C.I.D office at Police Headquarters in Bauchi State demanding the refund of all his monies paid in respect of the transaction as a result of which Six (6) of us (me, the 2nd Applicant alongside Four (4) other persons which include; Aminu, Ahmad, Ibrahim, and Yakubu) were arrested and taken to C.I.D. office at Bauchi where we were humiliated, intimidated, harassed and detained by Police from the period of 8:00am to about 6:30pm before we were released on bail upon payment of N80,000 (Eighty Thousand Naira) only to the Police as money for bail.

12. That after a series of reporting at the C.I.D office at Bauchi and with intervention of our then Counsel Barrister M.A. Gausu, the Police later removed their hands from the case around the beginning of the year 2018. 13.

That recently in the month of August 2019, the 3rd Respondent further reported the case to the 1st Respondent at Gombe claiming a total sum of N1,329,500 (One Million Three Hundred and Twenty Nine Thousand Five Hundred Naira) only against me, the 2nd Applicant alongside Four (4) other persons which include; Aminu, Ahmad, Ibrahim, and Yakubu, as the amount he spent in the course of the transaction, as a result of which we were all arrested by the 1st Respondent. 14.

That one Barkindo who is an officer of the 1st Respondent acted as the investigating officer under the instruction of the 2nd Respondent, who is the zonal head of the 1st Respondent, subjected us to series of intimidation, harassment, threat, and starvation all in the name of interrogation in respect of the money claimed by the 3rd Respondent. 15.

That the 1st and 2nd Respondents did not afford us the opportunity to explain our own side of the story in respect of the transaction between us and the 3rd Respondent which was purely civil in nature and never within the ambit of a criminal case and which completely took place in Jigawa State to the exclusion of any other place. 16.

That we were forced to report at Gombe State on three (3) different occasions and was forced by the officers/agents of the 1st and 2nd Respondents to sign an undertaking for payment of the money claimed by the 3rd Respondent in a total sum of N1,329,500 (One Million Three Hundred and Twenty Nine Thousand Five Hundred Naira) only which shall be done on or before the end of September, 2019.

17. That one Barkindo as officer/agent of the 1st and 2nd Respondents sounded a warning to us which is to the effect that upon our failure to pay that money on or before that date, they are going to detain us further and deal with us at our next return date which is coming up on the 30th day of September, 2019.

18. That the collective and joint actions of the Respondents have greatly and/or about to cause breach to our Fundamental Rights enshrined in the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and also damaged our image and reputation as highly respected family men in our community. 19. That it was on this basis that we have instructed our lawyers to institute this action before this Honorable Court with the view to enforce our Fundamental Human Rights as guaranteed by the Constitution. 20.

That I and 2nd Applicant have jointly perfected the brief of our lawyers by paying a total sum of N500,000 (Five Hundred Thousand Naira) only in order to handle this matter to its logical conclusion. I hereby annex the receipt of the money paid to our lawyer in the sum of N500,000.00 (Five Hundred Thousand Naira) only and we marked the same as Exhibit A.

21. That there is an urgent need to grant this Application in order to avoid further embarrassment and breach of our Fundamental Human Rights by the Respondents in this matter.” In response to the application of the Appellants, the 1st and 2nd Respondents jointly and the 3rd Respondent filed their respective Counter-Affidavits to controvert the Appellants’ claims. In addition to that, the two sets of Respondents filed notices of preliminary objections on points of law to the competence of the Appellants’ application- see pages 30 to 90 of the record of appeal for their full details.

In summary, the grounds upon which the preliminary objections are hinged are: misjoinder of parties and wrong Court venue for the ventilation of the Appellants’ action. To put it in other words, the Respondents are of the view that the Appellants ought to have filed separate applications rather than a joint application. Also, that since the alleged infraction of the Appellants’ fundamental rights took place in Gombe State, their application ought to have been filed in Gombe State, hence the trial Court is devoid of jurisdiction to adjudicate upon the matter.

The Appellants responded to the processes of the Respondents by filing a further and better affidavit and replies to the preliminary objections – see pages 91 to 112 of the record of appeal. The Appellants’ application and the Respondents’ preliminary objections were all heard together by the trial Court on the 24th of October, 2019.

Sequel to that, the trial Court in its considered ruling delivered on the 14th of November, 2019 upheld the preliminary objections of the Respondents, declined jurisdiction to adjudicate upon the Appellants’ substantive application and therefore terminated the application “in limine.” “Inter alia”, the trial Court in striking out the Appellants’ substantive application, held verbatim as follows: “On the second leg of the objections raised by the 1st and 2nd Respondents, i.e. that the applicants in the substantive suit cannot join hands or team up to bring an action under the FREP Rules, I have to agree with the submissions of the Respondents counsel that Order 2, Rule 1 of the Rules do not allow or even contemplate a joint or community action, as far as the enforcement of fundamental rights are concerned …… The contention that it is proper in law for two or more persons to apply jointly for the enforcement of their fundamental rights cannot be sustained …… I hold in the circumstance that it is not proper to join several applications in one application for the purpose of securing the enforcement of their fundamental rights.

The “only one party rule” highlighted in the above quotation is only relaxable under Order vii of the FREP Rules, where the Court is allowed to consolidate two or more cases dealing with the same subject matter and issues. Of more critical and decisive importance is the legal objection raised by the 3rd Respondent on the ground that the cumulative and series of acts of violations of rights alleged by the applicants against the Respondents were acts or actions that took place in Gombe State, which is the official Headquarters or Zonal operational site of the 1st and 2nd Respondents.

This assertion by the 3rd Respondent was confirmed and corroborated by paragraphs 13, 14 and 16 of the applicants supporting affidavit, deposed to by Labaran Nasiru (the 1st applicant) ……. Going by the above provisions of Order 2 Rule 1 and the deposition in paragraphs 13, 14 and 16 of the applicant supporting affidavit, the most suitable venue for seeking regress of the applicants grievances is a High Court in Gombe State.

It is immaterial that the applicants were indigenes of Jigawa State, and were either invited, picked or arrested in an area within Jigawa State, if the acts complained of occurred outside Jigawa State.” The Appellants are not happy with the said decision of the trial Court and had filed this appeal against it to this Court.

The six grounds of appeal contained in the Appellants’ Notice of Appeal dated and filed on the 14th of November, 2019 with their particulars are for good understanding and ease of reference hereunder set out unedited as follows: “GROUND ONE: The learned trial judge erred in law when his Lordship upheld the Preliminary Objection filed by the Respondents, on the ground of lack of jurisdiction on the suit, thereby occasioned a miscarriage of justice on the Appellants.

PARTICULARS OF ERRORS 1. The provision of Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 makes it clear on the appropriate Court with territorial Jurisdiction when the rights of the Applicants has been or is likely to be infringed. 2. From the totality of the affidavit evidence, the cause of action arose in Gwaram Local Government Area of Jigawa State and the infringement of the Applicants’ rights occurred and likely to occur more in Jigawa State.

GROUND TWO: The learned trial Judge misdirected himself on the facts before him and thereby came to a wrong conclusion when he dismissed the Appellants’ application based on the preliminary objection filed by the Respondents. PARTICULARS OF MISDIRECTIONS: 1. The fact that the invitation letter from the 1st Respondent originated from Gombe State was not conclusive evidence that it’s the Gombe State High Court that should have entertained the Applicants’ application. 2.

That upon any failure by the Appellants to meet up with the date line given to them by the 1st and 2nd Respondents, the Appellants’ right may likely be infringed through their subsequent arrest by the Respondents. GROUND THREE The learned trial Judge erred in law and misapplied the law as laid down in the case of YAKI v. BAGUDU (2015) 17 NWLR (Pt. 1491) 288. S.C in relying on the 3rd Respondent’s processes filed when there was none before the Court. PARTICULARS OF ERRORS: 1.

The 3rd Respondent’s processes filed in Court are in clear breach of Rule 10 (1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners. GROUND FOUR The learned trial Judge erred in law when he held that the 1st Respondent has the duty to investigate the financial activities of the Appellants and this occasioned a miscarriage of Justice to the Appellants. PARTICULARS OF ERROR 1.

That the transactions between the Appellants and the 3rd Respondent were purely civil in nature and that the law establishing the 1st Respondent does not empower it to collect debt or intervene in civil transactions between parties. 2. That the matter is still pending before the Nigeria Police Force, Bauchi State Command when the 3rd Respondent wrote a petition to the 1st Respondent.

GROUND FIVE 1. The learned trial Judge misdirected himself when His Lordship held in his ruling that the Appellants cannot jointly sue the Respondents under Enforcement of Fundamental Right Procedure Rules, thereby occasioned miscarriage of justice on the Appellants. PARTICULARS OF ERROR: 1. The Appellants had common cause of action, which is enforceable in law before the Lower Court. 2.

By the provision of Section 18 of the Interpretation Act, it defines ‘person’ to include ‘persons.’ GROUND SIX: The judgment is against the documentary evidence adduced at the hearing of the Appellants’ application.” In line with the rules of practice of this Court, briefs of argument were settled for the parties by their respective Counsel. ​ The Appellants’ Counsel, Mr. Yakubu A.H. Ruba of the Yakubu A. H. Ruba & Co. Law Firm filed the Appellants’ Joint Brief of Argument dated 11th of March, 2020, filed on the 24th of June, 2020 and deemed properly filed on the 2nd of February, 2021.

The two issues formulated from the six grounds of appeal for determination in the brief state verbatim as follows: “(i) Whether or not the learned trial judge of the lower trial Court was right when His Lordship held that the high Court in Jigawa state has no territorial jurisdiction to assume jurisdiction in the Appellants’ Application. (Grounds 1,2,3,4 and 6) (ii) Whether or not the Appellants can jointly institute an action under the Fundamental Right Enforcement (Procedure Rules) 2009 to enforce their fundamental rights as guaranteed by Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).” The 1st and 2nd Respondents’ Brief of Argument dated the 12th of July, 2020, filed on the 13th of July, 2020 and deemed properly filed on the 2nd of February, 2021 was settled by their Counsel, Mr.

Abubakar Aliyu of the Economic and Financial Crimes Commission (EFCC). In the brief, the three issues identified for the determination of the appeal state verbatim thus: “1. Whether the cause of action in this case arose in EFCC office in Gombe, Gombe State and whether Jigawa State High Court has Jurisdiction to hear and determine the suit. (Distilled from grounds 1 and 2 of the Appellants’ Notice of Appeal). 2. Whether the 1st Respondent is empowered by law to investigate complaints or allegations of financial crimes. (Distilled from ground 4 of the Appellants’ Notice of Appeal). 3.

Whether the Originating Motion of the Applicants dated 26th September, 2019 and filed 27th September, 2019 is competent in law having been jointly initiated. (Distilled from ground 3, 5 and 6 of the Appellants’ Notice of Appeal).” On the third part, the 3rd Respondent’s Brief of Argument is dated the 6th of October, 2020, filed on the 7th of October, 2020 and deemed properly filed on the 2nd of February, 2021. The brief was settled by Mr. Abbas Mu’azu, the 3rd Respondent’s Counsel.

In it, the sole issue crafted for the determination of the appeal states verbatim thus: “Whether the lower Court had jurisdiction to grant the applicants’ application as prayed?” By way of prefatory remarks, I consider it apposite to state that, upon service of the Appellants’ brief of argument on the Respondents, the 1st and 2nd Respondents by their Notice of Preliminary Objection dated the 12th of July, 2020 filed on the 13th of July, 2020, challenged the competence of the appeal.

The arguments in support of the Preliminary Objection are contained in paragraphs 1.5 at page 2 to paragraph 2.6 at page 4 of the 1st and 2nd Respondents’ brief of argument. However, before the oral hearing of the appeal, the learned Counsel for the 1st and 2nd Respondents withdrew the said Notice of Preliminary Objection on the 2nd of February, 2021 and the Notice of Preliminary Objection was duly struck out by this Court that day.

The submissions proffered by Counsel in support of the objection on points of law in their said brief are therefore hereby discountenanced and consequentially struck out. I have perused the three sets of issues donated for determination in the parties’ briefs of argument.

In the Appellants’ brief, although issue one was allegedly distilled from grounds 1, 2, 3, 4 and 6 of the grounds of appeal, I found that issue one does not relate to grounds 3 and 4 and no arguments were proffered on grounds 3 and 4 under the said issue one. ​ It is settled law and practice of appellate Courts that issues and not grounds of appeal are argued by Counsel and considered by the Court. Issues are therefore formulated to cover grounds of appeal. Hence a ground of appeal not having any argument proffered to cover it is deemed abandoned and must be struck out for that reason.

See the cases of: (1) Agbareh & Anor V. Mimra & Ors (2008) LPELR – 43211 (SC); (2) Husseni & Anor V. Mohammmed & Ors (2014) LPELR – 24216 (SC) and (3) Patrick V. State (2018) LPELR – 43862 (SC). It is for this reason that I hereby strike out grounds 3 and 4 of the Appellants’ Notice of Appeal as same are deemed abandoned.

Concomitantly, in the 1st and 2nd Respondents’ brief of argument issue two distilled from the struck out ground four of the grounds of appeal and the submissions proffered in support of the struck out ground three under issue three are hereby discountenanced. ​ It is equally worthy of note to state that the Appellants failed to link their issue two to any ground of appeal as required by law and practice. However, upon examination, I found that the submissions canvassed under issue two are centered on the complaints raised by grounds 5 of the grounds of appeal.

The Appellants will however not be penalized for this, rather issue two will be left to stand. Hence, in resolving the appeal, I will adopt and resolve together issues one and two contained in the Appellants’ brief, which have been responded to under issue one and part of issue three contained in the 1st and 2nd Respondents’ brief and the sole issue contained in the 3rd Respondent’s brief albeit the said sole issue is not linked to any of the grounds of appeal.

However, I will modify the Appellants’ two issues slightly: “(i) Whether or not the learned trial Judge was right when he held that the High Court of Jigawa State has no territorial jurisdiction to assume jurisdiction in the Appellants’ application? (ii) Whether or not the Appellants can jointly institute an action under the Fundamental Rights (Enforcement Procedure) Rules, 2009 to enforce their fundamental rights as guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended?” THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL: The learned Counsel submitted that it is settled in law that jurisdiction is the bedrock of litigation and a Court can only entertain a matter if it possesses the requisite jurisdiction over the particular matter before it.

It has been held in a series of judicial decisions, that proceedings and decisions of a Court which acted without jurisdiction are complete nullities. By the decision of the Supreme Court in the case of ONI v. CADBURY NIG. PLC (2016) 9 NWLR (Pt. 1516) S.C p. 80, a Court is competent to hear a matter when: i. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and ii.

The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction: and iii. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

It is pertinent to note that the Appellants’ case at the trial Court is centered on items (ii) and (iii) above. ​ The law is also trite that being the creation of the Constitution and other enabling laws, Courts draw their powers and jurisdiction for adjudication from the relevant legislations. See the cases of: (1) RODA v. F.R.N. (2015) NWLR (Pt. 1468) p. 427 S.C.; (2) UTOO v. APC (2018) 12 NWLR (Pt. 16.34) p. 507 S.C; (3) GARBA v. MOHAMMED (2016) 16 NWLR (Pt. 1537) p. 114 at 154-155, paras. H-B. and (4) LEKWOT v. JUDICIAL TRIBUNAL (1997) 8 NWLR (Pt.515) p. 22.

On this point, Counsel referred to the provisions of Sections 6 (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Counsel also referred to Section 46 (3) of the Constitution which provides that: “The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purpose of the Section.” It is in the exercise of the powers conferred on the Chief Justice of Nigeria that the Fundamental Rights (Enforcement Procedure) Rules, 2009 was promulgated.

By virtue of the provision of Order II Rule 1 of the said Rules, it is obvious and certain that every victim of human rights violation is entitled to seek redress in a High Court located in any State of the Federation of Nigeria where their fundamental rights have been or are likely to be infringed. Section 46 of the Constitution has also conferred special jurisdiction on the Court to hear and determine any application relating to violation of human rights. See ISUAMA v. GOVERNOR OF EBONYI STATE (2007) 20 WRN p. 170.

Counsel further referred to Article 7 (a) of the African Charter on Human and Peoples’ Rights, which also guarantees the rights of an individual to seek redress against fundamental rights violations. See ZAKARI v. INSPECTOR-GENERAL OF POLICE and ANOR. (2000) 6 NWLR (Pt. 607) p. 66. It is therefore clear beyond peradventure, that the State High Court located where the human rights violation occurred or is likely to occur has the constitutional and territorial jurisdiction to entertain an application for the enforcement of such violated or likely to be violated rights. See (1) MADUKOLU v.

NKEMDILIM (1962) 2 SCNLR p. 341 and (2) BAKOSHI v. CHIEF OF NAVAL STAFF (2004) 15 NWLR (Pt. 896) p. 268 at p. 290. It was further submitted by Counsel that from the Appellants’ Affidavit evidence, it is the Jigawa State High Court that has the territorial jurisdiction to entertain the Appellants’ application and not any other Court in Bauchi and/or Gombe States as wrongly held by the learned trial Judge. See OHAKOSIN v. COMMISSIONER OF POLICE IMO STATE (2009) 15 NWLR (Pt. 1164) p. 229 and GARBA & ORS v. UNIVERSITY OF MAIDUGURI (1986) 1 ALL NLR p.1.

It is of interest to note that the 1st and 2nd Respondents filed a counter-affidavit in opposition to the Appellants’ Originating Summons before the trial Court. Therein the 1st and 2nd Respondents clearly admitted that the Appellants reside in Jigawa State and that the cause of action that led to the arrest and detention of the Appellants in this suit occurred in Jigawa State. Counsel contended that the Appellants were arrested in Jigawa State and taken to the 1st and 2nd Respondents’ office in Gombe before they were granted administrative bail by the 1st and 2nd Respondents.

The law is settled that, if the fundamental rights split across more than one State, it is the High Court of any of the States that can entertain an Applicant’s application. See MADIEBO v. NWANKWO (2002) 29 WRN p. 1337. Counsel opined that the decision of the trial Court to the effect that the Jigawa State High Court does not have territorial jurisdiction to entertain the matter ignored the very essentials for the determination of territorial jurisdiction.

The trial Court cannot go outside the ultimate grievances ventilated in the Applicants’ suit in search of other events for the purposes of determining territorial jurisdiction. See ARJAY v. AIRLINE MANAGEMENT SUPPORT LIMITED (2003) 7 NWLR (Pt. 820) p. 577. The word “person” as used in the provisions of Order II Rule 1 of Fundamental Human Rights (Enforcement Procedure) Rules, 2009 and Section 46 (1) of the Constitution can be interpreted to mean “persons” as provided for under the provision of Section 18 of the Interpretation Act, Cap. 123, LFN, 2004.

Section 18 provides that, “person” includes anybody of persons corporate or unincorporated. The trial Court was therefore wrong to hold that the Appellants could not jointly institute their claims. Under the rules, several applications against several persons in relation to the same infringement of fundamental rights can be consolidated. It is safe to submit therefore that many Applicants may be joined together in the same application once a common cause of action can be established. See (1) UZOUKWU & ORS v. EZEONU II & ORS (1991) 6 NWLR (Pt. 200) p. 708 at p. 751; (2) GARBA AND ORS v.

UNIVERSITY OF MAIDUGURI (SUPRA) and (3) KALU v. STATE (1998) 13 NWLR (Pt. 583) p. 531. The processes filed by the parties at the trial Court as contained in the record of this appeal leave no doubt that the Appellants herein have a common cause of action in their application by the principle of stare decisis. The learned trial Judge thus greatly erred in law in relying on the Court of Appeal case of: UDO v. ROBSON & ORS (2018) LPELR – 45183 (C.A), rather than the Supreme Court decisions in: (1) YAKI v. BAGUDU (2015) 18 NWLR (Pt. 1491) p. 288; (2) A.P.C. v.

I.N.E.C. (2015) 8 NWLR (Pt. 1462) p. 531 and (3) NOBIS-ELENDU v. I.N.E.C. (2015) 16 NWLR (Pt. 1485) p. 197. This Court is urged to allow this appeal and set aside the ruling of the trial Court. THE SUMMARY OF THE SUBMISSIONS OF THE 1ST AND 2ND RESPONDENTS’ COUNSEL: The learned Counsel submitted that the cause of action is the germane subject matter that draws the jurisdiction of the Court to limelight. The cause of action is what gives the right to an action. See ZUBAIR v. KOLAWOLE (2019) LPELR – 46928, p. 19, paras. D – F.

The territorial jurisdiction where the cause of action arises is the proper jurisdiction of either the High Court or the Federal High Court to hear and determine matters. The purported infringement which caused the Appellant to institute the said fundamental rights suit at the trial Court occurred at the office of the 1st and 2nd Respondents in Gombe, Gombe State when the 1st Appellant eventually honoured the invitation for investigation upon persuasion.

The 2nd Appellant also reported separately and he was granted administrative bail the same day. ​ The Appellants wrongly believe that their fundamental rights were infringed after their visit to the office of the 1st Respondent. The main complaint of the Appellants is that, upon their visit to the office of the 1st Respondent, they were forced to make statements, intimidated, harassed, threatened with detention and starved in the guise of interrogation.

However, the Appellants were not arrested, they only honoured the 1st Respondent’s invitation via a letter sent to Gwaram Local Government Council in Jigawa State. The mere fact that the Appellants reside in Jigawa is not tenable to institute an action in Jigawa State without reckoning the moment the cause of action arose. The Appellants have therefore wrongly initiated their application in Jigawa, Jigawa State. The proposition that the cause of action that led to the purported arrest and detention of the Appellants occurred in Jigawa State is a misconception of facts of this case.

The contention of the Appellants that the investigation or invitation is what led to the action they instituted, is not tenable. The action was instituted after they were invited and voluntarily visited the office of 1st and 2nd Respondents in Gombe. What the Appellants are complaining of occurred in the office of the 1st and 2nd Respondents in Gombe. The learned Counsel further argued that the suit of the Appellants cannot be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

Fundamental Rights proceedings being “sui generis” remain an integral part of this Country’s judicial process. It is trite that litigants and their counsel are bound to abide by the legislations in pursuit of their suits. The 1999 Constitution and the Fundamental Rights (Enforcement Procedure) Rules have created a special procedure for proceedings under this peculiar category of action. It is only by these procedures that an action can be brought to enforce rights and it is the provisions of the said Rules that guide the conduct of all actions to enforce the rights.

By the provisions of Section 46(1) and (2) of the 1999 Constitution (as amended) and Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 under which the instant application was brought, the adjective used in both provisions in qualifying who can apply to a Court to enforce a right is “any”, this denotes singular and does not admit pluralities in any form. It is individual rights and not collective rights that are being referred to under the Rules and the Constitution.

Any application filed by more than one person under the Rules and the Constitution is therefore incompetent and liable to be struck out. See UDO v. ROBSON & ORS. (2018) LPELR – 45183 pgs.13-25, paras. C – A. The Originating Motion of the Appellants before the trial Court thus remain incompetent in law and incurably bad and liable to be struck out, in that the Appellants in this case have jointly sued and brought the action in a community of themselves.

The proper procedure to adopt by the Appellants in this case is to separately institute the action at the trial Court and thereafter apply for the consolidation of the actions. The cases cited by the Appellants’ Counsel to justify the consolidation are all cited out of context. The issue in the instant case is not the same as in those cases. The learned Counsel is at one with the decision of the trial Court that upheld the preliminary objections of the two sets of Respondents and that declined to assume jurisdiction on two grounds of improper venue and mis-joinder.

According to Counsel, the line of reasoning of the trial Court in the circumstances of this matter is apt, on point and has the force of law. ​ This Court is urged to dismiss this appeal and affirm the ruling of the trial Court.

THE SUMMARY OF THE SUBMISSIONS OF THE 3RD RESPONDENT’S COUNSEL: The learned Counsel submitted that a close look at the reliefs sought by the Appellants as Applicants in their application before the trial Court, leaves no doubt that the Appellants were only troubled by their invitation for interrogation by the 1st Respondent. The 1st and 2nd Respondents acted upon a complaint made to them by the 3rd Respondent. All of the allegations of infringement of their fundamental rights were carried out at the 1st and 2nd Respondents’ office in Gombe, Gombe State.

It is pertinent to reiterate that nothing outside these allegations has the qualification of being a part of the Applicants’ cause of action before the trial Court. Efforts by learned counsel to the Appellants to introduce the facts of the transaction that transpired between the Appellants and the 3rd Respondent, in Jigawa and Bauchi State, as part of their cause of action are misconceived. What truly confers jurisdiction on a Court is the peculiar facts of a case as they relate to time and space. In the instant case, the space wherein the cause of action was generated is Gombe, Gombe State.

The Appellant failed to supply any facts that could point at the tendency, that they were arrested within Jigawa State. This Court is urged to dismiss the appeal with heavy costs against the Appellants. RESOLUTION OF ISSUES ONE AND TWO: Jurisdiction simply means a Court’s power to decide a case or issue. It also refers to the authority that a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See amongst a myriad of precedents the cases of: (1) Mobil Producing (Nig.) Unlimited v.

LASEPA (2002) 18 NWLR (Pt. 798) P.1 and (2) Audu v. APC & Ors. (2019) LPELR-48134 (SC). The issue of jurisdiction is threshold as it is very fundamental and goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter but goes to adjudicate over the matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity.

It is therefore very crucial that a Court decides first the issue of its jurisdiction at the commencement of a trial particularly where there is a challenge to the same, before looking into the extent of judicial power exercisable under that jurisdiction. The law is quite trite that jurisdiction is vested in Courts only by the legislations that created them, such as, the Constitution, Decrees, Laws, Acts and Edicts. This is so sacrosanct that outside of the enabling legislations, the Court cannot by itself or by the agreement of the parties cloak it with jurisdiction.

The jurisdiction of a Court is thus confined, limited and circumscribed by the statute that created the Court. See the cases of: (1) Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p.1; (2) Onuorah v. KRPL & Ltd (2005) 6 NWLR (Pt. 921) p.393; (3) Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) p.619; (4) Dangana & Anor v. Usman & Ors. (2012) LPELR-25012 (SC) and (5) Nweke v. FRN (2019) LPELR -46946 (SC). In the instant matter, the general issue before the trial Court was one of jurisdiction. A challenge to the jurisdiction of a Court could be based on varied and diverse points.

For instances: (a) Whether the judge was properly appointed. (b) Whether the subject-matter of the claim is within the limits of the territorial jurisdiction of the Court. (c) Whether the claim is within the justifiable power of the adjudicating Court. (d) Whether the period allowed the Court to embark upon the hearing of the case has not expired. (e) Whether the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. (f) Whether there are proper parties before the Court; etc.

See the cases of: (1) Madukolu & Ors. v. Nkemdilim (1962) 2 NSCC p. 374; (2) Ejiofodomi v. Okonkwo (1982) LPELR – 1070 (SC); (3) Oni v. Cadbury (Nig.) PLC (2016) LPELR- 26061 (SC); (4) Oko v. State (2017) LPELR-42267 (SC) and (5) A.-G., Federation v. Kashamu (No.2) (2020) 3 NWLR (Pt. 1711) p.281.

From the above therefore, matters of jurisdiction in our Courts can generally be categorized into three compartments, that is, territorial jurisdiction, subject-matter jurisdiction and jurisdiction on persons. ​ The instant appeal is centred on both whether the subject-matter of the Appellants’ action is within the limitation of the territorial jurisdiction of the trial Court and whether the Appellants as a team are properly constituted to institute the action.

Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Just like other forms of jurisdiction, territorial jurisdiction is statutory and it is conferred on the Court by the statute which created it. Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area.

To put it in different words, territorial jurisdiction refers either to the geographical area in which a cause of action arose for adjudication or the jurisdiction of the Court to entertain cases involving persons residing within the confines of a defined territory. See the cases of: (1) Dariye v. FRN (2015) LPELR-24398 (SC) and (2) Golit v. IGP (2020) LPELR-50636 (SC). There is no doubt, indeed, it is good sense that the territorial jurisdiction of a High Court of a State, like the trial Court herein, is limited to the territorial boundaries of the State.

The High Court of a State is a creature of the grund norm, that is, the Constitution of the Federal Republic of Nigeria, 1999, as amended. It is therefore the said Constitution and indeed other laws duly enacted in line with the provisions of the same Constitution that vest in the High Court of a State the extent of its jurisdiction. See Section 272 of the Constitution.

Furthermore, the jurisdiction of the High Court of a State is circumscribed by the provisions of Sections 6(2) and 270 of the Constitution which established a High Court for each State of the Federation and judicial powers are duly vested in the High Court. However, because each State is an independent federating unit, if a cause of action arises in any of the States of the Federation, jurisdiction over the cause of action resides in that particular State. In other words, the territorial jurisdiction of the High Court of a State is limited to the territorial boundaries of the State.

Hence, where a suit ought to have been brought in one State is brought in another State, the latter Court would have no jurisdiction to adjudicate upon the suit. It is equally trite that jurisdiction cannot be conferred by any of the parties or by agreement of the parties. Where therefore a complaint is consummated outside the territorial jurisdiction of the Court approached to adjudicate over the subject-matter, such a Court being devoid of jurisdiction should not assume jurisdiction over the matter.

In the instant case, the subject-matter of the Appellants’ complaint before the trial Court is their alleged unlawful arrest, detention, intimidation, threat and harassment by the 1st and 2nd Respondents at the behest of the 3rd Respondent. This is visible from the originating motion of the Appellants who were the Applicants before the trial Court. Indeed, that is the only process it behooved the trial Court to examine in determining if it has territorial jurisdiction over the Appellants’ action.

The Appellants have placed much emphasis on the background facts of the transactions between them and the 3rd Respondent in proposing that in view of those sets of facts which occurred in Jigawa State, the High Court of Jigawa State has territorial jurisdiction over their actions. With respect, I must state that I do not agree with the said proposition, this is because those transactions between the Appellants and the 3rd Respondent are not the subject-matter of the action of the Appellants under scrutiny.

As stated hereinbefore the action of the Appellants is for the enforcement of their fundamental human rights on grounds of their unlawful arrest and detention allegedly by the 1st and 2nd Respondents at the behest of the 3rd Respondent. I have earlier on at the inception of this judgment set out the grounds upon which the application of the Appellants was predicated. For emphasis and easy referencing, I hereby reiterate grounds 6 and 7 of the grounds upon which the application of the Appellants were predicated as follows: “6.

The 3rd Respondent decided to report the Applicants before the 1st and 2nd Respondents in both Bauchi and later Gombe States despite the fact that all the elements of the transactions entered between the Applicants and the 3rd Respondent happened in Gwaram, Jigawa State as a result of which the Applicants were arrested, invited by both Police in Bauchi State and 1st and 2nd Respondents in Gombe State respectively. 7.

Consequent upon their arrest and invitation by both Police at Bauchi and the 1st and 2nd Respondents at Gombe States, the Applicants were unlawfully detained, harassed, intimidated, threatened, embarrassed and starved which occasioned breach to their constitutionally guaranteed human rights.” From the above stated grounds 6 and 7, it is crystal clear that although the Appellants are residents of Jigawa State, they were invited by the 1st and 2nd Respondents to the office of the 1st Respondent in Gombe State where they were allegedly formally arrested, detained, harassed, intimidated, threatened, embarrassed and starved.

There is no question in my mind that the arrest and detention of the Appellants occurred in Gombe State. Hence, the trial Court has no territorial jurisdictional competence to adjudicate over the application of the Appellants. The law is well grounded that a complaint of a breach of a fundamental right in one State cannot be litigated upon in another State. See the cases of: (1) Kraus Thompson Organisation Ltd v. University of Calabar (2004) 9 NWLR (Pt. 879) p.631 at p. 663; (2) Nigerian Navy & Ors v. Garrick (2005) LPELR-7555 (CA) and (3) Anyaeche v. Nwankwo (2015) LPELR-40677 (CA).

In the case of Jack v. University of Agriculture, Makurdi (2004) LPELR-1587, the Supreme Court per Katsina-Alu, JSC (as he then was, later CJN, now of blessed memory) had the following to say: “A person whose fundamental right is breached, being breached or about to be breached may therefore, apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on 1 January, 1980 defines “Court” as meaning. “The Federal High Court or the High Court of a State”.

What this means is this, both the Federal High Court and the High Court of a State have concurrent jurisdiction. An Application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. In Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) p.517, this Court observed as follows: “In this case, Alhaji Umaru Abba Tukur is complaining that there has been a breach of one or the other of his fundamental rights to his liberty or his freedom of movement.

This contravention allegedly took place in Gongola State. From Section 42(1) above, he has to apply to a High Court in that State, that is, the High Court where the contravention or breach occurred…… It is therefore my view that by choosing a Court outside the territorial boundaries of Gongola State where his fundamental rights were breached, the Appellant in this case did not apply to a High Court in that State as required by Section 42(1) of the 1979 Constitution.” The above view was adhered to by me in the case of: Federal Polytechnic Bauchi & Anor v. Aboaba & Anor (2013) LPELR-21916 (CA).

My said position remains unchanged. In sum, it is my firm view and I hold that the trial Court rightly declined to entertain the application of the Appellants to enforce their fundamental rights for want of its territorial jurisdiction. The first issue is therefore resolved against the Appellants and in favour of the two sets of Respondents. The contention of the Appellants under the second issue is that the trial Court erred to have held the opinion that a joint application cannot be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules.

The Appellants herein are of the view that many persons may be joined together in the same application once a common cause of action can be established. Before I proceed to the consideration and resolution of this issue, I would like to straightaway state that the Apex Court authorities relied upon by the Appellants in support of their view do not in any way advance their case. The case of Uzoukwu & Ors v. Ezeonu II & Ors. (Supra) is not a case for the enforcement of fundamental rights.

Furthermore, the question, whether two or more persons can file a joint application for the enforcement of their fundamental rights did not come up for consideration in the cases of: (1) Garba & Ors. v. University of Maiduguri (Supra); (2) F.B.N. v. A.-G., Federation (Supra) and (3) Kalu v. State (Supra), also relied upon by the Appellants. I am not unmindful of the two schools of thoughts of this Court on the issue under discourse.

The first school of thought is that, a joint action filed by more than one person to ventilate the breach of their fundamental rights arising from one and the same action of a defendant or defendants is competent. See the cases of (1) Maitagaran & Anor v. Dankoli & Anor (2020) LPELR-52025 (CA) and (2) Govt. of Enugu State of Nig. & Ors v. Onya & Ors (2021) LPELR-52688 (CA). This position in my view and with respect was hinged not on the provisions of the enabling law, that is, the Fundamental Rights (Enforcement Procedure) Rules (Supra) but on the rules of the High Courts in those cases.

The second school of thought, which I buy, is that, there must be separate applications of persons in the first instance where there are more than one persons seeking an enforcement of their fundamental rights even where the applications flow from the same cause of action. As rightly proposed in support of the second school of thought, actions for the enforcement of fundamental rights of citizens of this Country although are civil actions, they are nonetheless sui generis, peculiar and in a unique class of their own.

Hence, such actions are governed not by the general Civil Procedure Rules of Court but by the special and unique rules of procedure specifically laid down under the Fundamental Rights (Enforcement Procedure) Rules. What is more, the said fundamental rights being very important are enshrined in Section 46(1) and (2) of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). As the name portends, the procedure for the enforcement of the fundamental rights are as stated in the Fundamental Rights (Enforcement Procedure) Rules.

The rules are rules of general application in all the thirty-six States of Nigeria and Federal Capital Territory.

There must therefore be strict compliance with the provisions of the Rules and recourse should not be had to any other Rules of Court when it comes to the enforcement of any of the fundamental rights under the Constitution. ​It is equally a misconceived proposition that because there is no express provision in the Fundamental Rights (Enforcement Procedure) Rules permitting or forbidding two or more persons to file a joint application to enforce their fundamental rights, recourse should be had to the Civil Procedure Rules of the Court for the time being in force by virtue of Order XV Rule 4 of the Rules.

The provision of Order XV Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules will only be applicable where, in the course of a Fundamental Rights proceedings, a situation arises for which there is or appears to be no adequate provision in the rules. That is not the situation in the matter under discourse. The provisions of both the Rules and indeed the 1999 Constitution do not give room for a group of persons to file a sole application in any fundamental rights enforcement proceedings.

Rather Order VII Rule 3 of the Rules allows consolidation of applications after individual applications have been filed. Where therefore two or more persons believe that any of their fundamental rights has been infracted in the course of the same cause of action, the starting point for them in the process of enforcing the rights in Court, is to file their individual applications and thereafter an order for the consolidation of all the applications could be sought and obtained under Order VII Rule 3 of the Rules.

A trial Court has the discretion to make an order of consolidation of different applications of several persons after due consideration of the sets of facts from which the applications flow. It is the legally bounden duty of the trial Court to decide if the individual applications of several persons are in respect of the same matter, on the same grounds and involving the same issues. It is not the prerogative of the parties to conclude that their individual rights could be jointly enforced under a single application.

The clear intention of the drafters of the Fundamental Rights (Enforcement Procedure) Rules is as proposed by the second school of thought that two or more persons cannot jointly file an application for the enforcement of their fundamental rights. See amongst a plethora of authorities of this Court the cases of: (1) Chief of Naval Staff Abuja & Ors v. Archibong & Anor (2020) LPELR-51845 (CA); (2) Finamedia Global Services Ltd v. Onwero (Nig.) Ltd & Ors (2020) LPELR-51149 (CA); (3) Abubakar v. Dauda & Ors (2020) LPELR-51417 (CA) and (4) Abuja Electricity Distribution Company Plc & Ors v.

Akaliro & Ors. (2021) LPELR-54212 (CA). In sum, I hold that the joint application of the Appellants before the trial Court amounts to a misjoinder of action and it is incompetent. The trial Court was right to uphold the objection of the Respondents in that regard and properly declined jurisdiction to entertain and determine the said application for incompetence thereby striking out the same. Issue two is therefore equally resolved against the Appellants and in favour of the Respondents.

The two issues of the Appellants having been resolved against them, it is unequivocal that this appeal is without a jot of merit. The appeal is hereby declared a failure and accordingly dismissed. The decision of the trial Court striking out the application of the Appellants before it for incompetence and want of jurisdiction is hereby affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I abide by the conclusion that the appeal lacks merit but disagree with part of the reasoning. The matter in the lower Court was commenced by an application filed under the Fundamental Rights (Enforcement Procedure) Rules 2009 and it was a joint application by the two Appellants for the enforcement of their fundamental rights.

The lower Court heard the matter on the merit and dismissed the case of the Applicants on the grounds that it, the High Court of Jigawa State, lacked the territorial jurisdiction to entertain allegations of breach of fundamental rights that occurred in the office of the Respondents in Gombe State and that it was not permissible for the two Appellants to file a joint application for the enforcement of their fundamental right.

There are two germane issues for determination in the appeal, these are (i) whether the lower Court was correct when it found that he lacked the requisite territorial jurisdiction to entertain the claims of the Appellants, and (ii) whether the lower Court was correct when it held that the Appellants could not file a joint application for the enforcement of their fundamental rights. ​ On the first issue for determination, a read through the processes filed by the Appellants shows that their entire allegations of harassment, maltreatment, thereat starvation and detention took place at the office of the Respondents in Gombe State.

They did not allege in any of the processes that any of the alleged acts took place or was commenced in Jigawa State, contrary to the submission of their counsel in his brief of arguments. It is settled law that it is either the High Court of the State of the Federal High Court in the State where the breach of fundamental rights occurs that possesses the requisite jurisdiction to enforce the breach.

I am thus in agreement with the reasoning and finding in lead judgment that the lower Court was correct when it found that it had no territorial jurisdiction to entertain the claims of the appellant. It is the reasoning in the lead judgment on the second issue for resolution that I disagree with. The lead judgment is of the view that the lower Court was correct when it held that the Appellants could not file a joint application to enforce breach of their fundamental human rights and that the Appellant must come with separate applications. I do not, with respect, share this view.

As stated in the lead judgment, there are presumably two schools of thought in this Court on the issue. The first school of thought postulates that the law and rules governing enforcement of fundamental rights do not allow for the filing of a joint application by two or more applicants even where their complains flow from the same cause of action and that such a joint application is incompetent. This is the decision of this Court in the cases of Kporharor vs Yedi (2017) LPELR – 42418 (CA), Udo v. Robson (2018) LPELR – 45183 (CA), Finamedia Global Services Ltd v.

Onwero (Nig.) Ltd (2020) LPELR – 51149(CA), Abubakar v. Dauda (2020) LPELR -51417(CA), Chief of NAval Staff, Abuja v. Archibong (2020) LPELR – 51845 (CA) and Abuja ELectricity Distribution Company Plc v. Akaliro (2021) LPELR – 54212. The second school of thought maintains that the law and the rule governing enforcement of fundamental rights do allow for the filling of a joint application by two or more applicants where their complaints flow from the same cause of action and that such a joint application is competent.

This is the decision of the Court in the cases of Uzoukwu Vs Ezeonu II (1991) 6 NWLR (Pt. 200) 708 at 761, Ihejiobi Vs Ihejiobi (2013) LPELR 21957 (CA), Ubochi vs Ekpo (2014) LPELR 23523 (CA), Orkater Vs Ekpo (2014) LPELR 23525 (CA), Maitagaran Vs. Dankoli (2020) LPELR 52025 (CA) and Government of Enugu State Vs Onya (2021) LPELR 52688(CA). ​In determining which of the two schools of thought to follow, it is necessary to interrogate the reasoning that birthed them. The locus classicus of the first school of thought is the case of Kporharor Vs Yedi supra.

It was this decision that was quoted and followed by the other cases cited above under the school of thought. In Udo Vs Robson supra, Adah, JCA, who read the lead judgment, after referring to and quoting the decision on Kporharor Vs Yedi state thus: “The decision of this Court in Kporharor case (supra) is the current decision of this Court. By the doctrine of stare decisis I am bound by the earlier decision of this Court, I cannot deviate from it.” Similarly, in Chief of Naval Staff Abuja Vs.

Archibong supra, Shuaibu, JCA, after referring to the decision in Kporharor Vs Yedi supra and Udo Vs Robson supra, state that: “I cannot therefore deviate from the previous decision which prohibits joint or group application for the enforcement of fundamental rights”.

Also, Mustapha, JCA, in Finamedia Global Services Ltd Vs Onwero (Nig) Ltd supra, Mukhtar, JCA, in Abubakar Vs Dauda supra, and Agube, JCA in Abuja Electricity Distribution Company Plc Vs Akaliro supra, all relied on the reasoning in Kporharor Vs Yedi supra, and as followed in Udo Vs Robson supra, in disallowing a joint application for the enforcement of fundamental rights.

Now, what was the reasoning in Kporharor Vs Yedi supra, Bada, JCA, who gave the lead judgment in the case, after stating the peculiar nature of fundamental rights enforcement proceedings and the inalienability of fundamental rights, deliberated thus: “The right to approach a Court to enforce a Fundamental Right is conferred by Section 46(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Section 46 (1) of the 1999 Constitution provides thus: “Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court for redress. In this appeal under consideration, the application was brought by two separate Applicants (1) Mr. Michael Yedi and (2) Onodje Yedi Nig. Ltd the words used under Section 46(1) of the Constitution set out above is very clear. The same provision is made in Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.

The adjective used in both provisions in qualifying who can apply to a Court to enforce a right is any which denotes singular and does not admit pluralities in any form. It is individual rights and not collective rights that is being talked about. In my humble view, any application filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules is incompetent and liable to be struck out.

The above view is supported by the case of R.T.F.T.C.I.N VS IKWECHEGH (2000) 13 NWLR Part 683 at page 1, where it was held among others that: “If an individual feels that his Fundamental Rights or Human Rights has been violated, he should take out action personally for the alleged infraction as rights of one differs in content and degree from the complaint of the other ….

Is a wrong joinder of action and incompetent.” Also in the case of OKECHUKWU VS ETUKOKWU (1998) 8 NWLR Part 562 Page 511, it was held amongst others per Niki Tobi, JCA (as he then was) that: “As I indicated above, the Umunwanne family is the centre of the whole matter. A family as a unit cannot commence an action on infringement or contravention of Fundamental Rights. To be specific, no Nigeria family or any foreign family has the locus to commence action under Chapter IV of the Constitution or by virtue of the 1979 Rules.

The provisions of Chapter 4 cover individuals and not a group of collection of individuals. The expression every individual, every person, any person, every citizen are so clear that a family unit is never anticipated or contemplated.

The contention of learned Counsel for the Respondents that it is proper in law for two or more persons to apply jointly for the enforcement of their fundamental rights cannot be sustained.” In other words, the Court reasoned that (i) since the words used in Section 46 of the Constitution and in Order II Rules 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 are “any person”, the provisions refer to the singular and they circumscribe more than one person filing of a joint application for enforcement of fundamental rights and (ii) the Court relied on the judgments of this Court in the cases of R.T.F.T.C.I.N VS Ikwechegh supra and Okechukwu Vs Etukokwu supra as supporting the view that joint applications are not allowed.

It is correct that Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure Rules) 2009 say that “any person” who alleges that any of the Fundamental Rights provided for in the Constitution to which he is entitled has been, is being or likely to be infringed, may apply to Court for redress. However, it is an elementary rule of statutory construction that where the singular is used in a statute it includes the plural and vice-versa. Thus, in the case of Public Citizen, Inc.

Vs Mineta 340 E 3d 39 (2d Cir. 2003) where a statue provided for the provision of warming systems that indicate “when a tire is significantly under inflated”, the United State Court of Appeals, Second Circuit, held that the Act’s “a tire” plainly meant one tire, two tires, three tires, or all four tries, under the elementary rule of statutory construction that the singular (“a tire”) includes the plural (“tires”). ​This principle is captured in Section 14 (b) of the interpretation Act, 1964 which reads that “in an enactment, words in the singular include the plural and words in the plural include the singular.” By Section 315 of the 1999 Constitution (as amended) the Interpretation Act is an Act of the National Assembly which has been incorporated by reference into the Constitution and Section 318(4) of Constitution provides explicitly that the “Interpretation Act shall apply for the purpose of interpreting the provisions of this Constitution”. (underlining for emphasis).

Theses facts were confirmed by the Supreme Court in the case of Saraki Vs Federal Republic of Nigeria (2016) 3 NWLR (Pt. 1500) 531. What these translate to is that the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order II Rule I of the Fundamental Rights (Enforcement Procedure Rules) 2009 admits the plural and can be interpreted as referring to more than one person.

The law is settled that in interpreting the Constitution mere technical rules on interpretation of statutes are, to some extent, inadmissible in order to avoid defeating the principles of government enshrined in the Constitution.

Accordingly, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution – Rabiu Vs State (1980) 8 – 11 SC 130, Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt. 1590) 24, Abubakar Vs Independent National Electoral Commission (2020) 12 NWLR (Pt. 1737) 37, National Unity Party Vs Independent National Electoral Commission (2021) 17 NWLR (Pt. 1805) 305.

In All Progressives Congress Vs Enugu State Independent Electoral Commission (2021) 16 NWLR (Pt. 1801) 1 at 67 – 68 H-D, the Supreme Court put the point thus: “The Supreme Court’s approach to construction and interpretation of the Constitution of the Federal Republic of Nigeria is one of liberalism. This is so because anything contrary thereto would tantamount to defeating the very end which the Constitution was enacted.

It is the duty of the Supreme Court which has the ultimate responsibility of declaring and interpreting provisions of the Constitution always to bear in mind that the Constitution itself is an mechanism under which law is.

Accordingly, where the question is whether the Constitution has used an expression in the wider or in the narrower sense the Court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.” ​In other words, the Court should adopt a broad and liberal approach in interpreting the provisions of the Constitution.

Thus, where an expression used in the Constitution is capable of a wider or narrow interpretation, the broader interpretation is to be preffered – In Re Maduike (2019) 7 NWLR (Pt. 1671) 255, Central Bank of Nigeria Vs Rahamaniyya Global Resources Ltd (2020) 8 NWLR (Pt. 1726) 314, Crestar Integrated Natural Resources Ltd Vs Shell Petroleum Development Co. Ltd (2021) 16 NWLR (Pt. 1800) 453.

It follows therefore that the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule I of the Fundamental Rights (Enforcement Procedure Rules) 2009 cannot, and should not, be given a constricted, narrow and limiting interpretation that it refers to only one person as held in Kporharor Vs Yedi supra, and as suggested in the lead judgment. It should be given the wider interpretation to include more than one person or individual.

This approach to the interpretation of the phrase “any person” used in Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule I of the Fundamental Rights (Enforcement Procedure Rules) 2009 accords with the overriding objectives of the Fundamental Rights (Enforcement Rules) 2009 as provided in its Preamble.

The Preamble to the Rules enjoins the Court to constantly and conscientiously seek to give effect to the overriding objectives of the rules at every stage of human rights action, especially whenever it exercises any power given it by the rules or any other and whenever it applies or interprets any rule.

And the first overriding objective says that Constitution as well as the African Charter shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the acts and freedom contained in them and affording the protection intended by them. (underlying for emphasis) These statements enjoin the Courts not to allow a conservative approach to interpretation of the Constitution and of the rules and peripheral technical rules to defeat and/or impede a person seeking the enforcement of his fundamental rights. See Emukeme Vs Mazi (2014) LPELR-23540(SC).

This point was succinctly made by the Supreme Court in the case of Federal Republic of Nigeria Vs Ifegwu (2003) 15 NWLR (Pt. 842) 113 when it stated thus: “The manner in which the Court is approached for enforcement of a fundamental right does not matter once it is clear that the originating Court process seeks redress for the infringement of the right so guaranteed under the Constitution. The Court process could be by the fundamental Rights (Enforcement Procedure) Rules or by originating summons or indeed by writ of summons.

The concerns in regard to redressing a contravention of a fundamental right have been underlined by liberalizing the type of originating process without the person affected being inhibited by the form of action he adopts. It is enough if his complaint is understood and deserves to be entertained.” Uwaifo, JSC, stated the rationale for this position at page 184 B-E thus: “It is the Constitution which, as the organic law of a country, declares in a formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed.

It is the duty of the authorities including the judiciary, to ensure its observance. The position of the Courts is quite crucial in this regard for the purpose of safeguarding the constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated. In such a situation, the matter should be examined with close and anxious scrutiny to make sure that what is arrived at is objectively in conformity with the spirit of the constitutional guarantee.

And, for the Supreme Court of Nigeria, the trend is now that whenever an aspect of personal liberty is properly raised in any proceeding, the focus on the constitutional question is intent and intensive, and a solution which projects the essence of the constitutional guarantee is proffered.” The above underscores the wisdom in the reasoning and statements of Mbaba, JCA in Government of Enugu State Vs Onya supra when he commented that: “…I also think the Appellants were in error to say that the 34 Applicants were wrong to bring this suit together, alleging misjoinder of parties.

Parties are rather always encouraged to come together … when they have a common interest or grievance, seeking redress in Court.

It would even amount to multiplicity of actions and abuse of Court process, in my view, if the parties (like the 34 Applicants) who have identified their common interest and grievance in the suit were to have filed separate actions – 34 applications, in the same Court, seeking same reliefs, thereby overwhelming and over burdening the Court, and increasing the cost of litigation and the judicial cost/time … I think the principle relating to representative action also governs a suit by two or more applicants in a Fundamental Rights action, once common grievance and common interest originated from the same factual situation, like in this case, where the 34 Applicants (Respondents) were allocated stalls or spaces to build shops at the park;

they established an association, together and held their interest together and the cause of action (demolition of their stores) also happened at the same time, at the instance of the Appellants, throwing them (Respondents) into common grievance and they had common interest in the suit. … I do not therefore think the interest of justice in a fundamental rights action case be defeated or truncated by allegation, on appeal, that the Applicants, who had a common interest and/or common grievance in the violation of their fundamental rights, brought a joint action, not separate actions.

Such holding would completely negate the essence and purpose of the 2009 Fundamental Rights (Enforcement Procedure) Rules, in my opinion.

After all, the law is also that judgment is not defeated by reason of non-joinder or misjoinder of parties …” The reality is that, contrary to the assertion in the lead judgment, there is not express provision in the Fundamental Rights (Enforcement Procedure) Rules 2009 forbidding two applicants from filing a joint petition for enforcement of their fundamental rights, Order XV Rule 4 of the Rules provides that where in the course of any Fundamental Rights proceedings, any situation arises for which there is or appears to be no adequate provision in the Rules, the Civil Procedure Rules of the Court for the time being in force shall apply.

The High Court Rules of the lower Court, the High Court of Jigawa (Civil Procedure) Rules, contain provision allowing all persons to be joined in one action as plaintiffs in whom any right to relief is alleged to exist whether jointly or severally. The Courts have interpreted this provision as permitting persons who have rights arising from one common cause to file a joint action as co-claimants to ventilate the rights – Hyson (Nigeria) Limited Vs Ijeoma (2008) 11 NWLR (Pt. 1097) 18, Fode Drilling (Nig) Ltd Vs Fabby (2017) LPELR 42822(CA), AbdulRaheem Vs Oduleye (2019) LPELR 48892(SC).

This was the basis for this Court holding in the cases of Ihejiobi Vs Ihejiobi supra, Ubochi Vs Ekpo supra, Orkater Vs Ekpo supra and Maitagaran Vs Dankoli supra that a joint action filed by more than one person to ventilate breach of their fundamental rights arising from one and same action of a defendant or defendants is competent.

Further, and as stated earlier, the decision of this Court in Kporharor Vs Yedi supra also relied on the decisions of this Court in the case of RTFTCIN Vs Ikwechegh supra and Okechukwu Ve Etukokwu supra in coming to the conclusion that a joint application for fundamental rights enforcement was incompetent. With respect, the reliance placed on these decisions was faulty for two reasons.

Firstly, the cases of R.T.F.T.C.I.N Vs Ikwechegh supra and Okechukwu Vs Etukokwu supra were decided on the basis of the Fundamental Rights (Enforcement Procedure) Rules 1979 and not on the provisions of the Fundamental Rights (Enforcement Procedure) Rules of 2009. The Provisions of the two Rules are not the same and their provisions are miles-years away from each other. There are major and far reaching differences between them. The 2009 Rules are more much more permissive and expansive and allow more classes of people to file applications for enforcement of fundamental rights.

It is settled law a judicial decision cannot be relied upon as a precedent when the legislation, the basis for the decision, is different from that applicable in the subsequent case – Clement Vs Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39, Olafisoye Vs Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580 and Ugwuanyi Vs NICON Insurance Plc (2013) 11 NWLR (Pt. 1366) 546.

Secondly, it is trite law that the doctrine of judicial precedent recognizes that decisions of Court draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi Vs Nigerian Bar Association (No. 2) (1989) 2 NWLR (Pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt. 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt. 706) 365, Abubakar Vs Nasamu (No. 2) (2012) 17 NWLR (pt. 13330) 523.

The doctrine says that it is improper to try and force the ratio of a case on facts to which it cannot be assimilated, the ratio of any case should not be pulled by the hair of the head and made to apply to cases where the surrounding circumstances are different – Mortune Vs Balonwu (2000) 5 NWLR (Pt. 655) 87 and Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 1331) 55.

In Okechukwu Vs Etukokwu supra, the tussle was over headship of family and the Respondents filed a fundamental rights application for enforcement of the fundamental rights of the family, Tobi, JCA, (as he then was) Commenced at page 532 C-E thus: “As I indicated above, the Umunwanne family is the center of the whole matter. A family as a unit cannot commence an action on infringement or contravention of fundamental rights. To be specific, no Nigerian family or any foreign family has the locus to commence action under Chapter 4 of the Constitution or by virtue of the 1979 Rules.

The provisions of Chapter 4 cover individuals and not a group or collection of individuals. The expressions, ‘every individual’, ‘every person’, ‘every citizen’, and ‘a citizen’ are so clear that a family unit is never anticipated or contemplated.” (underlining for emphasis) It is clear that this decision is as regards whether a family as a unit could file for the enforcement of fundamental rights. The case of Kporharor Vs Yedi supra was in respect of a joint application for enforcement of fundamental rights filed by two persons, not by a family unit or a group of persons.

The decision in Okechukwu Vs Etukokwu supra did not thus constitute a viable judicial precedent for the Court in Kporharor Vs Yedisupra.

In The Registered Trustees of Faith Tabernacle Congregation Church Nigeria Vs Ikwechegh supra, the application for enforcement of fundamental human rights was filed by the Respondent, for and behalf of the entire Aggrieved Members of the Faith Terbanacle Congregation Church Nigeria, except the Appellant. Pats Acholonu, JCA, (as he then was) said at page 8 G-H thus: “Another point is that the action is brought in a representative capacity. How can all the people supposedly represented have the same cause of action.

Indeed, while Uche Ikwechegh and Alex Akugo are complaining of ex-communication, Simon Aliobu and others in the matter are complaining about suspension. If an individual feels that his fundamental rights or human right has been violated, he should take action personally for alleged infraction as rights of one differs in content and degree from the complaints of the other.

It is wrong joinder of action and incompetent.” (underlining for emphasis) In Kporharor Vs Yedi supra, the point application was filed by two persons in their personal names, and not in a representative capacity, and their complaints against the respondents were the same. It was not to enforce different alleged breaches caused by different actions of the respondents.

The facts and circumstances of the case of The Registered Trustees of Faith Terbanacle Congregation Church Nigeria Vs Ikwechegh supra are thus different and the case cannot also qualify as useable judicial precedent by this Court in Kporharor Vs Yedi supra.

The decisions of this Court that were available for use as judicial precedent to the Court in Kporharor Vs Yedisupra were the cases of Ihejiobi Vs Ihejiobi supra, Ubochi Vs Ekpo supra and Orkater Vs Ekpo supra decided in 2013 and 2014, and on the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, and which upheld the propriety and competence of a joint application for the enforcement of fundamental rights filed by more than one applicant. The Court in Kporharor Vs Yedi supra made no references to these cases and it reached its decision in ignorance of their existence.

It is trite law that by the doctrine of stare decisis the Court of appeal is bound by its previous decisions on similar matters in similar circumstances – Osho Vs Foreign Finance Corporation ​ (1991) LPELR-2801 (SC), Oyeyemi Vs Irewole Local Government (1993) 1 NWLR (Pt. 270) 462, Amaechi Vs Independent National Electoral Commission (2008) LPELR 146(SC), National Inland Waterways Authority Vs Shell Petroleum Development Co. Ltd (2020) 16 NWLR (Pt. 1749) 160.

In Abacha Vs Attorney General, Federation (2021) 10 NWLR (Pt. 1783) 129, the Supreme Court opined that: “The principle of stare decisis postulates that a point or principle of law once officially and authoritatively decided or settled by the same Court should no longer be open to examination or new ruling by the same Court or by those Courts or Tribunals bound by its decision, unless the decision is shown to be per incuriam or for some other exceptional reasons.” In legal jurisprudence, the necessary consequence of a Court reaching a decision in ignorance of binding judicial precedents, where that decision goes against the position of law as established by those precedents, is that the decision will be classified as having been reached per incuriam – Rossek Vs African Continental Bank Ltd (1993) 8 NWLR (Pt 312)382, Buhari Vs Independent National Electoral Commission ​ (2008) 19 NWLR (Pt. 1120) 246, Makun Vs Federal University of Technology Minna (2011) 18 NWLR (Pt. 1278) 190, Emeribe Vs Opara (2021) 2 NWLR (Pt 1760) 271.

Speaking on the point, this Court in State Vs Ali (2020) 18 NWLR (Pt 1755) 69 states thus at 103 B-F: “Per incuriam is a Latin phrase which generally means ‘through advertence’. Per incuriam in law means the Judge giving a judgment in ignorance or forgetfulness of an enabling statute or some binding authority on the Court.

A case decided per incuriam includes a situation where the Court forget to take into consideration a previous decision to which the doctrine of stare decisis applies … it is also a situation where a statute or rule having statutory effect or other binding authority, which would have affected the decision, had not been brought to the attention of the Court.

The principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was.” In other words, the decision reached in Kporharor Vs Yedi supra was, with respect, given per incuriam, it is trite law that a judgment reached per incuriam by the Court of appeal has no binding effect on the Court and should not be followed by the Court in subsequent decisions – Odido Vs State (1994) 3 NWLR (Pt. 333) 504, Njoku Vs Commissioner of Police (1999) 10 NWLR (Pt. 622) 192, Dina Vs Daniel (2010) 11 NWLR (Pt. 1204) 137, Ajayi Vs Nomiye (2012) 7 NWLR (Pt. 1300) 593 Emeribe Vs Opara (2021) 2 NWLR (Pt. 1760) 271.

Therefore, the decision in Kporharor Vs Yedi supra is not a viable decision that should have been followed by any panel of this Court. This contaminates and renders the decisions in Udo Vs Robson supra, Finamedia Global Services Ltd Vs Onwero (Nig) Ltd supra, Abubakar Vs Dauda supra, Chief of Naval Staff, Abuja Vs Archibong supra, and Abuja Electricity Distribution Company Plc Vs Akaliro supra, which followed the judgment in kporharor Vs Yedi supra, as judgment also reach per incuriam.

What these translate to is that the first school of thought which exists in this Court, and which forbids the filing of a joint application by two or more applicants for the enforcement of fundamental rights even where their complaints flow from the same cause of action, was built on a quicksand; it is a mirage. The second school of thought which supports the filling of a joint application by two or more applicants where the complaints flow from the same cause of action was erected on a solid rock and it is the only viable and sustainable one.

It is for this reason that I differ from the position taken in the lead judgment approving the decision of the lower Court that the joint application for enforcement of fundamental rights filed by the Appellants is incompetent, it is my view that the application is competent and valid. These said, however, in view of the finding on the first issue for resolution in the appeal that the lower Court lacked the requisite territorial jurisdiction to entertain the claims of the Appellants, I agree that the appeal fails, but only in part.

I too hereby dismiss the appeal and affirm the decision contained in the ruling of the High Court of Jigawa State in Suit No. JDU/FHR/05/2019 delivered by Honourable Justice A. Y. Suleiman on the 14th of November, 2019.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother O.F. Omoleye, JCA and I am in complete agreement with the reasoning and conclusion reached therein that this appeal is unmeritorious and be dismissed. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

Judgment

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Honorable Justice B.A Adejumo, Honorable Justice B. B Kanyip and Honorable Justice M.B Dadda of the National Industrial Court sitting in Lagos in Suit No NIC/8/2002 on the 5th of February 2008, as seen on Pages 107 – 118 of the Records of Appeal. The Appellant (then Plaintiff) instituted this suit by filling an Application dated and filed 28th of May 2002 and 30th of May 2002 respectively.

The Appellant is a Trade Union with Members who are Employees of the 1st Respondent who was the 1st Defendant in the suit. The Appellant went into series of discussions and negotiations with the 1st Respondent on settlement, further to which the Parties mutually agreed to lay off the workers with an undertaking on the 1st Respondent to pay salaries, allowances, and terminal benefits amounting to N45 Million (Forty-Five Million Naira) payable to the Appellant’s Members.

In furtherance to this Agreement, 1st Respondent wrote the Appellant on the 10th of October 2001 promising, “to make all payments not later than January 31, 2002”.

The 1st Respondent delivered a Tripartite Deed of Assignment dated 19th of February 2002, which was earlier, executed between the 1st & 2nd Respondent and Shell Petroleum Development Company Limited to the Appellant alongside a Tripartite Deed of Loan and Transfer between the 1st Respondent & 2nd Respondent and ESI Engineering International Limited to the Appellant. ​It further wrote a letter dated 6th of March 2002 informing the Appellant that arrangements had been made with the 2nd Respondent regarding the payment of its liabilities and advised the Appellant to liaise and cooperate with the 2nd Respondent for the payment of their terminal benefits.

The Appellant claimed to have met with the 2nd Respondent unsuccessfully until when in April 2002, the Managing Director of the 2nd Respondent, reported to the Police claiming that some of the affected workers threatened breach of the peace further to which they were arrested and charged to the Magistrate Court. Consequently, by its conduct, it has made further discussions impossible thereby making the enforcement of the Agreements mutually reached by the parties impossible. The Appellant’s questions for determination at the lower Court were as follows: 1.

That by the Agreements executed by the Plaintiff and the 1st Defendant’s Minutes of Meetings on the 23/2/2001 and 6/4/2001, 19/9/2001 and 5/3/2002 together with the two Separate Agreements executed by the Defendants respectively on the 19th of February 2002, the Defendants are liable jointly and severally to pay to the Plaintiff for their workers the terminal benefits and arrears of unpaid salaries and allowances amounting to N45 Million. 2.

A DECLARATION that by the Agreements or Understanding between all the Parties particularly by the Tripartite Deed of Assignment dated 19/2/2002 and Tripartite Deed of Loan and Transfer, the 2nd Defendant assumed joint-liability for the debt of the 1st Defendant and the Plaintiff became entitled to be paid the sum of N45 Million by both Defendants being terminal benefits and arrears of salaries allowances in respect of its 159 workers laid off by the 1st Defendant 3.

AN ORDER directing the Defendants to pay over forthwith to the Plaintiff the total sum of N45 Million, being terminal benefits and unpaid arrears of salaries and allowances for its Members listed in the documents attached to the Accompanying Affidavit in Support, who the defendants laid off on a mutual agreement to pay the benefits together with the costs of this action. The 1st and 2nd Respondents reacted to the Appellant’s Motion by filing separate Preliminary Objections challenging the jurisdiction of the trial Court to hear the application.

Arguments on the Preliminary Objections were taken and on the 6th of February 2007, the trial Court ruled that it had jurisdiction to hear the matter. Subsequently, the 1st Respondent applied for an Extension of Time to file its Counter Affidavit in opposition to the Appellant’s Motion. The Application was granted and the 1st Respondent filed its Counter Affidavit and Written Address. Arguments on the Appellant’s Application was taken.

The 2nd Respondent did not file any Counter Affidavit or Written Address. ​The Appellant’s Application was dismissed on the grounds that it did not make out any case to warrant the granting to it of the reliefs it seeks. Consequently, the Appellant, dissatisfied with the judgment of the trial Court, filed a Notice of Appeal dated 9th of April 2008 as seen on Pages 119 – 125 of the Record of Appeal.

The Appellant challenged the whole decision of the trial Court on Four (4) Grounds: GROUNDS OF APPEAL GROUND ONE The lower Court erred in law when it held that the “Applicant has not made out any case to warrant the granting to it the reliefs it seeks” as such “the Application must fail; and we so order” thereby exceeding its jurisdiction.

In this regard, three (3) Particulars of Error were listed out as contained in the Notice of Appeal GROUND TWO The lower Court erred in law, as much as exceeded as jurisdiction, and denied the Appellant a fair hearing when it held that: “Even assuming that Exhibits G-Gs and H-H6 are applicable to the matter at hand, their contents are such that raise doubts to their efficacy. In the first place, Exhibit H-H6 in the recital talks of N45,000,000; but in schedule III, it talks of N55,000,000.00.

Secondly, the same Exhibit in Clause 2A talks of the transferor covenanting with the transferee ‘To pay and discharge into the Transferee the Sum of N420, 000, 000.00…which sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein’. Nowhere did the Applicant establish that this said sum has been paid by it to warrant the 2nd Respondent to make payments that the Applicant is praying for.” In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal.

GROUND THREE The lower Court erred in law when it failed to exercise its discretion to call on the Appellant to address it on Exhibits G-G2 and H-H6 as well as oral evidence before making a finding on the matter raised in the Exhibits, thereby failing to afford the Appellant the opportunity of being heard. In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal.

GROUND FOUR The lower Court erred in law when it failed to act on the unchallenged evidence or properly assess and evaluate the Affidavit Evidence including the Exhibits before the Court and grant the reliefs sought. In this regard, two (2) Particulars of Error were listed as contained in the Notice of Appeal. The Appellant sought for the following Relief as contained in the Notice of Appeal as follows: “Allow the appeal, set aside the decision of the lower Court, access the evidence and make order appropriately”. The Appellant filed its Brief of Argument on the 2nd of September 2008.

The 1st Respondent on the 20th of November 2009, filed a Notice of Preliminary Objection dated 29th of October 2009. In addition to the Notice of Preliminary Objection, it also filed its Respondent’s Brief of Argument dated 29th of October 2009 and filed on the 20th of November 2009 also incorporating the Preliminary Objection to the Brief. Same was deemed filed on the 5th of October 2018. The Appellant neither filed a Reply to the Preliminary Objection nor an Appellant Reply Brief. The Appellant in its Brief of Argument raised Four (4) issues for determination namely: 1.

Whether the lower Court was right when it held that the Appellant did not make out any case and dismissed the Appellant’s case. This issue relates to Ground One of the Grounds of Appeal. 2. Whether the lower Court was right and did not exceed its jurisdiction and deny the Appellant a fair hearing in its approach to and conclusion on the Appellant’s Exhibits G-G5 and H-H6 relating to the discrepancy in the figures N45,000,000.00. This issue relates to the Ground 2 of the Grounds of Appeal. 3.

Whether the lower Court was right when it failed to exercise its discretion under the law and call on the Appellant to address it on Exhibits G-G2 and H-H6 as well as call oral evidence before making a finding of conflicting figures in the Exhibits. This issue relates to Ground 3 of the Grounds of Appeal. 4. Whether the lower Court was right when it failed to act on the Appellant’s unchallenged Affidavit Evidence and give judgment accordingly. This issue relates to Grounds 4 of the Grounds of Appeal.

Dwelling on the issues for determination, the 1st Respondent raised two Issues for Determination as follows: (i) Whether the lower Court was wrong in holding that Interpretative Jurisdiction should not be used to settle Triable Issues. (ii) Whether the lower Court was wrong in refusing to hold that Exhibits G-G2 and H- H6 take the character of Collective Agreements. ​The 2nd Respondent did not file any Brief of Argument. The Appellant also did not address the issues arising from the Preliminary Objection.

Now, after a thorough perusal of the Notice of Appeal, the adopted Brief of Arguments, as well as the Records of Proceedings, this Court observed that the 1st Respondent raised a Notice of Preliminary Objection, which borders on the competency of the appeal. The Court will now examine the Preliminary Objection to determine if it has merits.

The 1st Respondent premised his Notice of Preliminary Objection on One (1) Ground which is reproduced as follows: GROUND OF THE OBJECTION Section 9 of the National Industrial Court Act 2006 stipulates the appeal that shall lie as of right from the decisions of the National Industrial Court to the Court of Appeal. This appeal as presently constituted does not fall under that category.

In his submission on the Preliminary Objection, the Learned Counsel to the 1st Respondent placed reliance on Section 9 of the National Industrial Court Act, 2006, which provides that an appeal from the decision of the National Industrial Court can only lie as of right to the Court of Appeal only on questions of Fundamental Rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria.

He submitted that the facts of this instant case from the National Industrial Court, indicates that the question before the National Industrial Court was definitely not based on Fundamental Human Rights Issues as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria and as such going by the provisions of Section 9 of the National Industrial Court Act 2006, the Appellant is duty bound to seek and obtain the Leave of Court before filing any appeal against the decision of that Court.

The Learned Counsel added that the Processes filed before this Court showed that leave was neither sought nor obtained before the Appellant filed this appeal before this Court, and as such having not obtained the requisite leave, this Court does not have the Jurisdiction to entertain this Appeal. The issue of obtaining leave of Court is a condition precedent specifically laid down by Statutes. He relied on MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR 587.

He urged this Court to strike out the appeal forthwith. ​Now, it has been observed that the Learned Counsel to the Appellant did not file a Reply to the 1st Respondent’s Notice of Preliminary Objection. The law is trite that silence can sometimes mean yes and what is admitted needs no further proof. It is settled that where a Party fails to reply to a Point of Law raised by an opposing party, he is deemed to have conceded to the points raised. See OKESUJI VS LAWAL (1991) 1 NWLR 662 AT 674; CHUKWU VS CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR-23813(CA).

In this instant case, the Appellant did not respond to the Respondent’s Preliminary Objection and as such he is deemed to have admitted the Objections raised by the Respondent. Now, the Issue as to whether Leave of Court is required to file an appeal against the decision of the National Industrial Court will be examined. The Right of Appeal is a Constitutional Issue and they are of two categories. The first one is appeal as of right and appeal with leave of Court.

It is clear that this appeal emanated from the National Industrial Court and as such there can be only two categories of appeal that can arise from the Court below. ​Civil appeals from the National Industrial Court are governed by the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria.

Section 243 (2) and (3) provides as follows: “(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of Fundamental Rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. (3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly: Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.” Appeals to the Court of Appeal as of Right are formed on Grounds touching on Fundamental Rights and appeals with Leave on other Grounds.

With particular reference to this Appeal, Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria, as amended is relevant. It governs the jurisdiction of the Court of Appeal over appeals arising from the decisions of the National Industrial Court and specifically on when an appeal as of right arises and when Leave to Appeal must be sorted and obtained. In the same vein, Section 9(1) and (2) of the National Industrial Court Act, 2006 also make identical provisions to that of Section 243 (2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria.

It provides as follows: “(1) Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and Subsection (2) of this Section, no appeal shall lie from the decisions of the Court to the Court of Appeal or any other Court excepts as may be prescribed by this act or any other Act of the National Assembly. (2) An appeal from the decision of the Court shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999” ​The provisions of Section 243 (2) and (3) of the 1999 Constitution are very clear and unambiguous Also the provisions of Section 9(2) of the National Industrial Court Act, 2006 are also very clear.

It is trite that the object of interpreting a Statute or the Constitution is to discern the intention of the Legislature and that can only be determined through the language used in the Statute or Constitution. Hence, where words used in the Constitutional Provisions or Statute are clear, plain, and unambiguous, they are to be construed in their literal and ordinary meaning. Reference is made to the decided Case Authorities GANA VS SDP & ORS (2019) LPELR-47153 (SC), MARWA & ORS VS NYAKO & ORS (2012) LPELR-7837 (SC) ABEGUNDE VS ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC).

The understanding is that except for the Right of Appeal as provided under Section 243 (2) of the 1999 Constitution and Section 9(1 – 2) of the National Industrial Court Act 2006, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any matter in which jurisdiction is conferred on the National Industrial Court, it shall be as prescribed by an Act of the National Assembly.

Provided however that where such Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal on any matter, such appeal shall be by Leave of Court.

Therefore, in other words, except for the provisions of Section 243 (2) where an aggrieved Party can appeal as of right as far as it relates to questions of Fundamental Rights as contained in the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as it relates to matters under which the National Industrial Court has jurisdiction, an appeal on any other matter shall be as prescribed by an Act of the National Assembly.

In SKYE BANK PLC VS IWU (2017) 16 NWLR (PART 1590) SC PAGE 24 AT PAGE 147, the Supreme Court Per KEKERE–EKUN, JSC held as follows: “The combined provisions of Sections 36(2) (b), 240, 243 and 254C(5), (6) of the 1999 Constitution (As Amended) creates a right of appeal from a decision of the National Industrial Court to the Court of Appeal.

Such an appeal is as of right in fundamental rights cases and criminal matters, and with leave of the Court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction.” ​From the foregoing, it is clear that it is only in questions relating to Fundamental Right Cases and Criminal Matters that an appeal as of right will arise. Leave of Court is only required in other Civil Matters where the National Industrial Court has jurisdiction.

Similarly, Section 243 (2–4) of the Constitution as introduced by Section 5 of the Third Alteration Act deals with the manner in which an appeal from the National Industrial Court to the Court of Appeal is to be dealt with. Subsection 2 is very clear – only an appeal on questions relating to Fundamental Human Rights, as it relates to matters on which the National Industrial Court has Jurisdiction are as of Right. It suffices to state that there is no doubt that there are only two categories of appeals that can emanate from the National Industrial Court to the Court of Appeal.

The question that arises in this appeal is whether the Grounds of Appeal are Grounds complaining of Fundamental Human Rights breaches or Grounds other than Fundamental Human Right breaches. The complaints must be against the decision of the trial Court and not the claim against the Respondents. ​It is pertinent to note that the suit was not initiated under Fundamental Rights Enforcement Rules as it is only the High Court and the Federal High Court that has the jurisdiction to hear such matters. Any Fundamental Right Issue must arise from the trial Court’s omission or commission.

Upon the holistic interpretation of Sections 240, 243 (2 – 4) of the 1999 Constitution, all decisions from the National Industrial Court can be appealed as of right provided it borders on questions relating to Fundamental Rights and with leave of the lower Court on other civil matters where the National Industrial Court has exercised its jurisdiction.

See GOVERNING BOARD OF RUGIPOLY, ONDO STATE VS OLA (2016) 16 NWLR (PART 1537) PAGE 1 AT PAGE 21 – 29; UITHMB VS ABDURAHAMAN (2017) 15 NWLR (PART 1589) PAGE 397 AT PAGE 419; LAGOS SHERATON HOTEL VS HPSSSA (2014) 14 NWLR (PART 1426) PAGE 45 AT PAGE 65; NESTOIL PLC VS NUPENG (2018) LPELR-50094 (CA), AKOSHILE V NIMC & ANOR (2020) LPELR-51362 (CA); NATIONAL UNION OF HOTELS AND PERSONAL SERVICE UNION VS BPE (2019) LPELR-48725 (CA).

Having examined the fact that appeal from the National Industrial Court to the Court of Appeal can be as of Right if it borders on questions relating to Fundamental Rights and for other Civil Matters in which leave of the lower Court is required on which the National Industrial Court has exercised jurisdiction, the next step is to examine the Grounds of Appeal to determine if there is a Ground touching on Fundamental Right that can sustain the competence of this appeal from the National Industrial Court.

From the Grounds of Appeal reproduced above, it appears that the only Ground that has any semblance to the issue touching on Fundamental Right is Ground Two (2) where the Appellant alleged that the trial Court erred in law as much as exceeding jurisdiction by denying it fair hearing in respect of the Exhibits tendered at the lower Court by holding that the Appellant failed to address the Court as to whether the Exhibits tendered can be part of the Collective Agreement. As such, it concluded that the Appellant has failed to make a case to warrant the grant of the Reliefs sought.

However, a closer review of Ground Two (2) would indicate that there was no question of Fundamental Rights raised in the lower Court. In OPARA VS SPDCN [2015] 14 NWLR 319. ​

The Supreme Court has given a well-considered position on this in this manner: ‘’The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedures) Rules.

However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the Rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject matter of the action. Enforcement of the Right per se cannot resolve the substantive claim, which is in any case different. In the instant case, the appellants’ main grouse was about pollution generated from gas flaring.

This is a matter that cannot be knighted as a fundamental right action under Chapter IV of the Constitution and under the African Charter on Human and Peoples Rights.’’ This Court had reeled out the reliefs sought by the Appellants in this suit at the trial Court earlier in this judgment. The reliefs can be found on Pages 1 – 2 of the Record of Appeal.

After a careful review of the reliefs sought by the Appellant, this Court found out that the Reliefs sought by the Appellants at the lower Court borders on the interpretation of Agreements and enforcement of Monetary Claim and has nothing to do with Fundamental Rights. It is worth noting that the question of Fundamental Rights was not raised and determined at the lower Court, it was only set down for the first time as Ground 2 in the Notice of Appeal.

From the facts before the lower Court, the issues were not premised on Fundamental Rights as contained in Chapter IV of the 1999 Constitution For an action to be qualified as a Fundamental Right Action, the central question or the main claim must be for Enforcement of Fundamental Right or the securing of the Enforcement of Fundamental Right. It must not be the consequential human right issue or question which emanates or seeks to unravel another question. The Fundamental Right claim involved must not be a claim that is an offshoot of the main claim.

The Fundamental Right Claim must be the main or principal claim in the suit. See GAFAR VS KWARA STATE GOVT (2007) NSCQR VOLUME 29 PAGE 34; UNILORIN VS OLUWADARE (2006) NSCQR VOLUME 27 PAGE 18; EGBUONU V BOMO RADIO TELEVISION CORPORATION (1991) 2 NWLR 81 AT P.90; SEA TRUCKS NIGERIA LIMITED VS ANIGBORO (2001) NSCQLR VOLUME 5 PAGE 120.

In LAGOS SHERATON HOTEL VS HPSSSA (SUPRA), His Lordship, Per OSEJI, JCA (as he then was) admonished Litigants to refrain from trying to circumvent the provisions of Section 243 (2) of the 1999 Constitution of the Federal Republic of Nigeria under any guise to appeal the decision of the National Industrial Court in matters they are not allowed to appeal against. His warning is endorsed and he stated thus: “….

Litigants who seek to circumvent or evade the provisions of Section 243(2) and of the Constitution by seemingly waving the magic wand of fair hearing or breach of fundamental right with the main motive of having access to appeal against a decision of the National Industrial Court on matters falling outside the allowed scope, should be advised not to underestimate the sharp sense of perception and wisdom of the Appellate Courts to sift the wheat from the chaff.

Undoubtedly, in deserving cases, the Court will not relent in defending the course of justice, given its Status as the dynamic Agency for the protection of the Rule of Law.” However, the other three (3) Grounds of Appeal stated on the Notice of Appeal, have no semblance of Fundamental Right and as such require the leave of the lower Court to appeal. A perusal of the Records of Appeal shows that there was no Application for leave to appeal that was filed and granted, and as such no leave of Court to appeal the decision of the lower Court is part of the Records of Appeal.

Thus there is no leave to appeal the Grounds listed in the Notice of Appeal. Failure to seek the leave of the lower Court to appeal these Grounds have grave consequences. Thus it is trite that where there is no leave of Court to appeal a decision of the lower Court, when it is required to obtain before appeal, such appeal is incompetent and liable to be struck out. That is the consequence of the failure to seek the leave of Court to appeal when leave is required.

See EHINLANWO VS OKE & ORS (2008) LPELR-1054 (SC), IKWEKI & ORS VS EBELE & ANOR (2005) LPELR-1490 (SC); NWADIKE VS IBEKWE (1987) 4 NWLR (Pt. 67) Where a statute specifies that leave of Court is required to file an appeal, failure to obtain the leave of Court to appeal robs the Appellate Court of jurisdiction and jurisdiction is fundamental to in every adjudication. In ABDULKARIM VS INCAR (NIG) LTD. (1992) LPELR-26 (SC), the Supreme Court per UWAIS JSC held: “As no leave to appeal to the Court of Appeal was obtained, the appeal before this Court is incompetent.

The Court of Appeal had no jurisdiction to entertain the appeal. The decision of the Court of Appeal is null and void. There is therefore no appeal before this Court.” Further reference is made to the Supreme Court Authorities of SAMPSON UKPONG & ANOR VS COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT & ANOR (2006) 12 SCNJ AT 129 AND DR. ABDUL VS CPC & ORS (2013) 5 SCNJ AT PAGE 378.

From the foregoing, this appeal cannot be considered as an appeal based on questions relating to Fundamental Rights and as such, there is no valid appeal before this Court with respect to the Grounds as they are incompetent. There is also no pending Application for leave to appeal before this Court and therefore, this Court lacks the jurisdiction to determine the appeal as presently constituted. The objections being fundamental and jurisdictional, it would be an academic exercise to venture into the substance of the main appeal.

Consequently, the Preliminary Objection raised by Learned Counsel representing the 1st Respondent is Upheld and resolved in favour of the 1st Respondent and against the Appellant. The appeal is hereby struck out for want of jurisdiction having been filed without the leave of the lower Court. On the off chance that the appeal is proper before this Court, the merit of the Substantive Appeal will be examined.

ISSUES FOR DETERMINATION Now having perused the Issues for Determination raised by the Learned Counsel across the divide, this Court will subsume the Four (4) issues raised by the Appellant with the Two (2) Issues raised by the Respondent to determine the appeal in the following manner: – 1.

Whether the lower Court was right and did not exceed its jurisdiction to deny the Appellant a fair hearing in its approach to the conclusion it reached in respect of the Appellant’s Exhibits G – G2 and H – H6, which related to the discrepancy in the figures N45,000,000.00, N55,000,000.00 and N420,000,000.00 2.

Whether the lower Court was right when it failed to exercise its discretion under the law and call on the Appellant to address it on Exhibits G-G2 and H – H6 as well as call Oral Evidence before making a finding of the conflicting figures in the Exhibits and further whether it was right to refuse to hold that these Exhibits take on the character of Collective Agreements. 3. Whether the lower Court was right when it failed to act on the Appellant’s unchallenged Affidavit Evidence to give judgment dismissing the Appellant’s case on the ground that the Appellant did not make out a case. 4.

Whether the lower Court was wrong in holding that its interpretative jurisdiction should not be used to settle triable Issues. ​For the purposes of a consistent flow in the analysis, this Court will treat Issues 1, 2 and 3 initially and then proceed to determine Issue Four (4).

Arguments of Counsel on Issues 1, 2 and 3 It is worthy of note that Learned Counsel representing the Appellant, in his Written Address argued his Issues 1, 2 and 3 in one steady stream and separately argued his Issue 4, while the Learned Counsel representing the Respondents, submitted on his own Issues seriatim. On Issues 1, 2 and 3, Learned Counsel to the Appellants submitted that the lower Court went into the contents of Exhibits G-G2 and H – H6 and doubted their efficacy, due to the conflicting figures.

Having found out that its interpretative jurisdiction could not be used to settle triable Issues, it ought to have struck out the case for want of jurisdiction. He then submitted that the trial Court ought to have called the Appellant to orally explain the conflicting figures of N45,000,000, N55,000,000 and N420,000,000 it spotted in the documents. Further, by going through the merit of the Affidavit Evidence, it failed to determine the issues raised because of the discrepancies in the Exhibits and therefore, acted erroneously by dismissing the suit.

He relied on CHIEF JAMES NTUKIDEM & ORS VS CHIEF OKO & ORS (1986) 12 SC 126 AT 127. He further stated that the trial Court failed to evaluate the Affidavit Evidence and the Exhibits before it, relying on the Authorities of NKPA VS NKUME (2001) 6 NWLR (PART 710) PAGE 543 AT 559; COLLINS VS VESTRY OF PADDINGTON (1880) 5 QBD 380. According to Counsel, the trial Court undermined the Affidavit Evidence by doubting the names of the workers, despite the fact that the 1st Respondent did not dispute the details of the workers.

Finally, he submitted that the Procedure adopted by the lower Court deprived the Appellant of fair hearing when it failed to invite them to address it on the conflicting figures and urged this Court to resolve Issues 2, 3 and 4 in his favour. Conversely, Learned Counsel to the 1st Respondent submitted that some of the members of the Appellant were at one time in the employment of the 1st Respondent until it encountered difficulties. He further submitted that the question before the Court was whether Exhibit G – G2 and H – H6 take the character of a Collective Agreement.

He relied on Section 48 of the Trade Dispute Act and the Case Law Authority of RECTOR, KWARAPOLY VS ADEFILA (2007) 15 NWLR (PART 1095) PAGE 42 AT 92 to argue that Exhibits G – G2 and H – H6 do not take the form of Collective Agreement. Learned Counsel further submitted that the documents fall within the realm of the Law of Contract since the 1st Respondent entered into a contract with the 2nd Respondent. The Appellant was not a Party to the Agreements and as such, cannot enforce it due to the doctrine of Privity of Contract.

He relied on BORISHADE VS NBN LTD (2007) 1 NWLR (PART 1015) PAGE 217 AT 249. RESOLUTION OF ISSUES 1, 2, and 3. Now, fair hearing means trial of a case or conduct of proceedings according to all relevant Rules for ensuring Justice. Therefore, fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. The true test of fair hearing is the impression a reasonable person present at the trial would form that justice was done in the case.

In MOHAMMED VS ABU ZARIA (2014) 7 NWLR (PART 1407) PAGE 500 AT PAGE 531, this Court per ORJI-ABADUA JCA explained the concept of Fair Hearing as follows: “Fair hearing entails giving somebody an opportunity to explain his actions. It is one in which authority is fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. Fair hearing contemplates the right to present evidence, to cross-examine and to have findings supported by evidence. It can be likened to a fair and impartial Trial.

It is a proceeding which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, consideration of evidence and facts as a whole.

Where principles of fair hearing are observed, there is, invariably, an atmosphere of calm in which witnesses can deliver their testimony without fear and intimidation, in which counsel can assert the accused’s rights freely and fully, and in which the truth may be received and given credence without fear of violence.” See also ANPP VS INEC (2004) 7 NWLR (PART 871) 16; SALEH VS MONGUNO (2003) 1 NWLR (PART 801) 221; EZECHUKWU VS ONWUKA (2006) 2 NWLR (PART 963) 151.

In this instant appeal, one of the grievances of the Appellant was that the trial Court exceeded its jurisdiction by denying it fair hearing due to its failure to ask the Appellant to explain the discrepancies in regard to Exhibits G-G2 and H – H6, before it made its findings thereby breaching its right to fair hearing.

The Learned Trial Judges held as follows: “The Applicant was expected to address the Court on the Issue of whether Exhibits G – G2 and H – H6 can be said to be part of the Collective Agreement in issue, given that what the Applicant did was to activate the Interpretation Jurisdiction of the Court. Unfortunately, the Applicant failed to do this. Instead, it assumed that the two documents are necessarily applicable without more and took the character of a Collective Agreement for which this Court should hold the Respondent liable.

Even assuming the Exhibits G–G2 and H–H6 are applicable to the matter at hand, their contents are such that raised doubts as to their efficacy. In the first place, Exhibit H – H6 in the recital, talks of 45,000,000; but in Schedule III, it talks of N55, 000,000.

Secondly, the same Exhibit in Clause 2A talks of the transferor covenanting with the Transferee ‘To pay and discharge unto the Transferee the sum of N420,000,000.00… which the sum shall be paid and discharged in accordance with the procedure set out in Schedule II herein.’ Nowhere did the Applicant establish that this said sum has been paid by it to warrant the 2nd Respondent to make the payments that the Applicant is praying for” The Appellant argued that trial Court raised doubts to the efficacy of Exhibits G – G2 and H – H6 without asking the Appellants to explain the discrepancies.

It is pertinent to note that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the Parties, particularly the Party that may be adversely affected by the Issue raised See MOJEKWU VS IWUCHUKWU (2004) 11 NWLR (PART 883) PAGE 196; LEADERS & COMPANY LTD VS BAMAIYI (2010) LPELR 1771; INAIFE VS DAUKURO & ORS (2019) LPELR – 48669 CA; OMOTOSO VS AKOGUN & ORS (2018) LPELR 46368 CA. Now, the trial Court perused Exhibits H – H6; G-G2 from the Originating Processes, which constitutes evidence for consideration.

However, the presence of these pieces of evidence will not detract from the fact that they must be established as the correct state of facts. The trial Court is empowered and must evaluate, assess the credibility and veracity of each and every piece of Evidence adduced before him. In CPC VS INEC & ORS (2011) LPELR – 8257 (SC), the Supreme Court Per ADEKEYE, JSC held as follows: “The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence.

The Court must ensure that it holds the string or scale of justice evenly balanced between the parties, so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence.

It is the trial Court which alone has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion.” See also AYUYA & ORS v. YONRIN & ORS (2011). LPELR-686(SC); SHA & ANOR VS KWAN (2000) 8 NWLR (PART 670) PAGE 685; ADAMU & ORS v. STATE (1991) LPELR-73(SC); AJAGBE v. IDOWU (2011) LPELR-279(SC).

From the foregoing Judicial Authorities, it can be seen that where documentary evidence is in issue, the Court is duty bound to evaluate the evidence before it, as the judgment must be confined to facts and issues raised by the Parties. It should be noted that the Parties relied on the Tripartite Deed of Assignment and Tripartite Deed of Loan as well as the Transfer Agreement, all marked as Exhibits G – G2 and H – H2 respectively for the determination of the question on whether the said Exhibits can be said to be part of the Collective Agreements.

The effects and implication of the Exhibits were one of the questions for determination by the trial Court and the lower Court was duty bound to determine the effects of these Agreements. Reviewing the contents of the judgment above, it is clear that the trial Court did not raise an issue suo motu, it only evaluated the said Exhibits relied on by the Parties, and interpreted the Agreements, drawing inference from them to determine whether, they indeed took on the character of a Collective Agreement.

In ENEKWE VS IMB (NIG) LTD (2006) 19 NWLR (PART 1013), the Supreme Court Per NIKKI TOBI JSC held as follows: “Learned counsel heavily descended on the expressions: ‘infinitesimally insubstantial tenuous, maliciously dubious and transitory in nature.’ To learned counsel, the expressions are tantamount to raising new issues suo motu by the Court of Appeal. While I agree that counsel is free and at liberty to attack dictum or dicta in a judgment, he has a duty to read the entire judgment very carefully before he embarks on a tirade on words used by the Judge.

A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings.

In other words, the Court of Appeal cannot be accused of raising issues suo motu, if the issue was canvassed at the Trial or on Appeal. The trial Court only raised its observation about the contents of the Agreements to determine the efficacy of the Agreement and whether they took on the character of a Collective Agreement. Thus the observations of the trial Court in this regard cannot be said to be an Issue raised suo motu.

Furthermore, the Appellant in his adoption of his Written Address as seen in Page 105 of the Record of Appeal, failed to address the trial Court on the question of whether the stated Exhibits could be said to be part of the Collective Agreement. Rather, he countered the Written Address of the 1st Respondent, asking the trial Court to discountenance the arguments therein on the Grounds that it was a way of re-opening issues that had already been resolved in its favour by the trial Court.

Further still, he argued that by the Agreements entered into between the two Respondents, they are jointly and severally liable to the Appellant. According to him, the Appellant had the opportunity of addressing the Court on the efficacy of the said Exhibits G – G2 and H – H6 as part of the Collective Agreement but failed to do so. Consequently, it cannot turn around and complain that it was denied the right of fair hearing.

His Lordship Per NIKI TOBI, JSC in ADEBAYO VS AG OGUN STATE (2008) LPELR (80) warned Counsels to refrain from misusing fair hearing to divert the attention of the Courts from the main issues in a suit as follows: “Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there.

They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage.

On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.

Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.” From the foregoing, it is clear that Learned Counsel to the Appellant had the opportunity to explain to the trial Court whether or not the Agreements could be classified as a Collective Agreement but slept on his rights. He cannot therefore complain that he was denied the right to fair hearing, when he had the opportunity to explain the relevance of the Agreements.

It is not the responsibility of a trial Court to ensure that a Party takes advantage of the environment by involving himself in the Proceedings. A Party who had the opportunity to explain the relevance of the Exhibits he attached to his pleadings cannot turn around and accuse the trial Court of denying him fair hearing. See BELLO VS THE STATE (2020) LPELR–50287 CA; MUTUAL BENEFIT ASSURANCE VS ACCESS BANK (2021) LPELR–52791 CA; PAX EDUCATION RESOURCES VS FRN (2020) LPELR–51181 CA; ORIENTAL ENERGY RESOURCES VS HERCULES OFFSHORE (NIG) LTD (2020) LPELR–50873 CA.

Furthermore, the trial Court is not under any obligation to call Counsel to the Parties to address it on whether Exhibits admitted should be ascribed probative value. In REVEREND KING VS THE STATE (2016) LPELR–40046 (SC), the Supreme Court Per NGWUTA, JSC held as follows: “The exhibits and oral evidence were received by the trial Court.

The trial Court did not need address from Counsel to the parties to decide whether or not a piece of evidence and exhibits admitted should be ascribed probative value, nor are Counsel to the parties entitled to be heard in the evaluation of the evidence before the Court” Thus from the foregoing, the trial Court has not breached the Appellant’s right to fair hearing as it is not under any obligation to call the Parties to address it in its evaluation of evidence before it. The Court did not exceed its jurisdiction in its conclusion on the Agreements.

Now having resolved that the trial Court had not breached the Appellant’s right to fair hearing, the next question is to determine if the trial Court was in error for refusing to hold that Exhibits G – G2 and H – H6 take the character of Collective Agreements.

Section 48 (1) of the Trade Disputes Act defined Collective Agreements as follows: “(1) In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say- “collective agreement” means any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between- (a) An Employer, a Group of Employers or one or more Organizations representative of employers, on the one hand; and (b) One or more Trade Unions or Organizations representing Workers, or the duly appointed Representative of any Body of Workers, on the other hand;” From the foregoing definition, the ingredients of a Collective Agreement are that: 1.

The Agreement must be in writing. 2. The Agreement must be for settlement of disputes.

3. The Agreement must relate to terms of Employment as well as physical working conditions.

4. It must be between an Employer or a Group of Employers or their Representatives on one hand and on the other hand one or more Trade Unions representing the Workers or an Appointed Representative of Workers. The four ingredients must co-exist for it to be termed as a Collective Agreement.

Furthermore, in OSOH & ORS VS UNITY BANK PLC (2013) LPELR – 19968 (SC), the Supreme Court per CHUKWUMA-ENEH JSC, further explained the features of a Collective Agreement as follows: “The provisions of Section 47(1) (supra) however require collective agreements to be in writing so as to formalize the agreements.

What has further emerged from the definition with respect to many cases of “collective agreements” is that where they have created legal relations giving rise to contractual obligations between the parties, they are enforceable by the immediate collective parties (i.e. between an employer or an employers’ organization and a trade union or Unions) but as between the employers and the workers as the respondent and appellants here, it is only so where they have been incorporated into the contracts of employment of the employees so as to be actionable for any breaches arising therefrom at the suit of either party to the contractual relationship.

Otherwise, they are no more than mere vague inspirational terms which are bound to present practical problems of enforcement and the best method being to use political or trade union pressure to bring about their enforcement.

The other notable, crucial feature of collective agreements arising from their being the products of the joint negotiating bodies of workers’ representatives and the employer’s representatives and in that regard being in writing is raising the presumption of being legally enforceable provided the agreements have created contractual obligations arising out of legal relations as between the parties.” ​Exhibits G – G2 is a Tripartite Deed of Assignment between the 1st Respondent, 2nd Respondent and Shell Petroleum Development Company Limited.

Exhibit H – H6 is a Tripartite Deed of Loan and Transfer Agreement between the 1st Respondent, 2nd Respondent and ESI Engineering International Nigeria Limited. A perusal of both Agreements shows that the Appellant is not a Party to the Agreements. Both Agreements are Contractual Agreements entered by the respective Companies in their own capacities. The workers are not represented in the Agreement. The Terms of the Agreement have nothing to do with settlement of disputes relating to terms of Employment and physical working conditions.

From the foregoing, Exhibits G – G2 and H – H6 do not fall under the definition of Collective Agreements as defined in Section 47 of the Trade Disputes Act. The Agreements falls under the realm of Law of Contract as the 1st Respondent entered into a contract with the 2nd Respondent assigning its liabilities to the 2nd Respondent. The question is whether the Appellant is entitled to enforce the Agreements?

In BASINCO MOTORS VS WOERMANN – LINE & ANOR (2009) LPELR – 756 (SC), the Supreme Court Per ADEKEYE, JSC explained the Doctrine of Privity of Contract as follows: “From the forgoing, it becomes really necessary to explain what is privity of contract. The doctrine of privity of contract portrays that as a general rule, a contract affects the parties thereto and cannot be enforced by or against a person who is not a party to it.

In short only parties to a contract can sue or be sued on the contract and a stranger to a contract can neither sue or be sued on the contract even if the contract is made for his… him liable upon it. Moreover, the fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue or be used upon the contract.” See NEGBENEBOR VS NEGBENEBOR 1971 1 ALL NLR 210; IKPEAZU VS A.C.B LTD 1965 NMLR 374; K.S.O.

ALLIED PRODUCTS LTD VS KOFA TRADING CO LTD (1996) 3 NWLR PART 436 PAGE 244 ALFOTRIN LTD VS A.G. 1996 NWLR PART 475 PAGE 634. In this instant case, the Contractual Agreement is only enforceable between the Respondents. The Appellant in this instant case is not a Party to the Tripartite Agreement and as such cannot enforce the Contract due to the doctrine of Privity of Contract. ​Consequently, the Appellant cannot enforce the Contract Agreement entered between the 1st and 2nd Respondents in respect of Exhibits G – G2 and H – H6.

The trial Court was therefore right in refusing to hold that the said Exhibits took the character of a Collective Agreement. Issues 1, 2 and 3 are hereby resolved in favour of the Respondents and against the Appellant. ARGUMENTS OF COUNSEL IN RESPECT OF ISSUE 4 In arguing Issue 4, Learned Counsel summarized the Claim before the lower Court and the Preliminary Objection on the jurisdiction of the lower Court.

He relied on the Case Law Authorities of NATIONAL UNION OF HOTELS AND PERSONAL SERVICE WORKERS VS WHASSAN EUREST NIGERIA LTD (2005) 2 NWLR (PART 4) PAGE 145 AT 154; CHEMICAL & NON-METALLIC PRODUCTS SSA VS BCC (2005) 2 NWLR (PART 6) PAGE 446 AT 470.

He submitted that the summary of the Respondents’ Defence to the Appellant’s claim was that there was ‘no cause of action’ relying on KALANGO VS DOKUBO (2003) 15 WRN 3 PAGE 32 AT 78; SONA BREWERIES PLC VS SIR SHINA PETERS & ANOR (2005) 1 NWLR (PART 908) PAGE 478 AND CBN VS SYSTEMS APPLICATIONS PRODUCTS NIG LTD (2005) 3 NWLR (PART 911) 153. ​Learned Counsel to the Appellant argued that based on the Common Grounds between the Appellant and the 1st Respondent, which was unchallenged by the 2nd Respondent, the lower Court had enough materials to interpret the Collective Agreement, make a declaration and an order for payment of the said N45 Million or decline both reliefs for stated reasons.

However, after holding that it had the jurisdiction to hear the matter, failed to interpret Exhibits G-G1 and H-H6 as a Collective Agreement and also failed to make an Order as to the Liability of the Respondents to pay the said N45 Million. On the contrary, the lower Court held that the Appellant assumed that the two documents are necessarily applicable, without more and took the character of a collective agreement for which the Court should hold the Respondents liable.

Learned Counsel to the Appellant contended that the Respondents did not raise any Issue as to the applicability of the Exhibits attached. Therefore, the lower Court erred when it expected the Appellants to address it on the undisputed Exhibits as to their efficacy but failed to do that. Finally, he submitted that the Court contradicted itself by holding that the Appellant failed to make out a case and yet held that it cannot through its interpretative jurisdiction try triable issues. Therefore he urged this Court to find in their favour on this Issue.

Conversely, the Learned Counsel to the Respondents relied on Section 20 of the Trade Dispute Act and Case Law Authority of ADESOYE & 5 ORS VS GOVERNOR OF OSUN STATE & ANOR (2005) 16 NWLR (PART 950) PAGE 1 AT 21 – 22 to state that the National Industrial Court has the jurisdiction to determine questions relating to Collective Agreements. Further reliance was placed on ABDULRAHEEM VS OLORUNTOBA –OJU (2006) 15 NWLR (PART 686) PAGE 581 AT 624 He submitted that the jurisdiction of the National Industrial Court lies only with the Interpretation of a Collective Agreement and nothing more.

The Reliefs sought by the Appellant at the lower Court are therefore ultra vires the powers of the National Industrial Court as provided for by Section 20 of the Trade Disputes Act, LFN 1990. He cited and relied on the Case Authority of ATTORNEY GENERAL OF OYO STATE VS NIGERIA LABOUR CONGRESS & ORS (2003) 8 NWLR (PART 821) PAGE 1 AT 28. ​Finally, Learned Counsel to the Respondent argued that the Appellant attempted to get the lower Court to grant declaratory reliefs under the guise of interpreting a Collective Agreement and to make an Order, which is outside the jurisdiction of the trial Court.

Reference was made to KALANGO VS DOKUBO (2003) 15 WRN PAGE 32 AT 78. He urged this Court to hold that the lower Court was right to restrict itself to its interpretative jurisdiction and not to go ultra vires its jurisdiction in granting the declarations and order sought by the Appellant and urged this Court dismiss the appeal of the Appellant on this Issue.

RESOLUTION OF ISSUE 4 Now, Section 48 of the Trade Dispute Act defines Trade Disputes as follows: “Trade Dispute” means any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person;” Thus for a dispute to come under the definition of a Trade Dispute, the following ingredients must be present: 1. There must be a dispute 2. The dispute must involve a trade 3. The dispute must be between a. Employers and Workers b. Workers and Workers 4.

The dispute must be connected with: a. Employment or Non-employment b. Terms of Employment c. Physical conditions of work of any persons. See NURTW VS NWEKE OGBODO & ORS (1998) 2 NWLR (PART 537) PAGE 191. All these four conditions must coexist to cloth the National Industrial Court with the jurisdiction to entertain the matter. In this instant case, there is a dispute between the 1st Respondent and the Appellant with some of its members working as employees with the 1st Respondent.

The dispute relates to the employment of the Appellant and as such, it falls under the provisions of Section 48 and Section 15 of the Trade Disputes Act. This now leads to question as to whether or not the National Industrial Court can hear Applications seeking Declaratory Reliefs or Injunctive Orders. The importance of jurisdiction in the adjudication of a matter cannot be over-emphasized. Without it, the Court will operate in futility. It is the power of the Court to adjudicate on a matter. It cannot be underrated for the purpose of litigation.

See SALISU V MOBOLAJI (2014) 4 NWLR (PT 1296) 1 AT 6; NSL LTD V ATTORNEY GENERAL OF LAGOS STATE (2009) 11 NWLR (PT 1152) PAGE 304 AT 306, KURMA V SAUWA (2019) 13 NWLR (PT 1659) PG 247; GT INVESTMENT LTD V WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500. The fundamental principle in determining whether a Court has the jurisdiction to hear a matter is to examine the claim as stated in the Writ of Summons or endorsed in the Statement of Claim.

See ADETAYO & ORS VS ADEMOLA (2010) LPELR – 155 SC, WAMBAI VS DONATUS & ORS (2014) LPELR 23303 – SC, OBI VS INEC (2007) LPELR 24347-SC, ADETONA & ORS VS IGELE (2011) LPELR – 159 SC. To successfully determine whether the National Industrial Court had the requisite jurisdiction to entertain the matter at hand, recourse must be had to the enabling Statute, which is the National Industrial Court Act of 2006.

Section 7 (1 A and C) of the National Industrial Court Act 2006 provides for the jurisdiction of the National Industrial Court as follows: “(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters- (a) relating to- (i) labour, including trade unions and industrial relations; and (ii) environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto; and (c) relating to the determination of any question as to the interpretation of- (i) any collective agreement, (ii) any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute, (iii) the terms of settlement of any labour dispute, organizational dispute as may be recorded in any memorandum of settlement, (iv) any trade union constitution, and (v) any award or judgment of the Court.” From the interpretation of Section 7 (1C), the National Industrial Court only has the jurisdiction to entertain matters relating to questions as regards the interpretation of Collective Agreements, any award made by an Arbitral Tribunal, Terms of Settlement of any Labour Dispute, Trade Union Constitutions and Award or Judgment of the Court.

There is nothing in the said Section that gives the National Industrial Court the jurisdiction to make declaratory reliefs or injunctive orders. It is settled law that the express mention of specific things is to the exclusion of other things. That is Expressio Unius Est Exclusio Alterius – Thus things not mentioned in a Statute is a clear intention that they are not intended to be included.

Reference is made to the decided Case Authorities of PDP & ANOR VS INEC & ORS (1999) LPELR-24856 (SC), SHINKAFI & ANOR VS YARI & ORS (2016) LPELR-26050 (SC), PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS VS MIGFO (NIG) LTD & ANOR (2012) LPELR-9725 (SC), BUHARI & ANOR VS YUSUF & ANOR (2003) LPELR-812 (SC). This Principle is applicable to the interpretation of Section 7 of the National Industrial Court Act 2006.

The fact that the jurisdiction of the National Industrial Court does not include the Powers to make Declaratory Reliefs and injunctive orders, shows that the Drafters of the National Industrial Court Act never intended to include such powers in the provisions of the National Industrial Court Act. Thus from the foregoing, the National Industrial Court does not have the jurisdiction to make declaratory reliefs and injunctive orders.

In OLORUNTOBA OJU VS ABDULRAHEEM (2009) 13 NWLR (PART 1157) PAGE 83 AT 127, the Supreme Court Per ADEKEYE, JSC held as follows: “Section 15 of the Trade Dispute Act, 1976 which confers jurisdiction on the National Industrial Court does not include jurisdiction to make declarations or to order an injunction.

In other words, considering the nature and scope of the jurisdiction and powers of the National Industrial Court as clearly spelt out in the Act, the Court lacks the competence to make Declarations and Orders of Injunction” See also WESTERN STEEL WORKS VS IRON STEEL WORKERS (1987) 1 NWLR (PART 49); AG OYO STATE VS NLC (2003) 8 NWLR (PART 821) PAGE 1.

Therefore, this Court, in compliance with the dictum of Her Lordship, would hold that the National Industrial Court only has the jurisdiction to interpret Collective Agreement and does not have the competence to make declarations or order an injunction. The Appellant hid under the cover of Interpretation and Fundamental Rights to seek a declaration that the Respondents are indebted to it and also wanted the trial Court to order the Respondents to pay it. The trial Court was right in holding that its interpretative jurisdiction should not be used to settle triable issues.

On the strength of the foregoing analysis, coupled with the fact that this Court has upheld the Preliminary Objection raised by the 1st Respondent against this suit, this appeal is incompetent and is accordingly dismissed.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Adebukunola Adeoti Banjoko, JCA. I endorse in toto the legal reasoning and conclusion in it. l, too, strike out the appeal for being incompetent. I abide by the consequential orders decreed in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft, the judgment just delivered by my learned Brother ADEBUKUNOLA ADEOTI BANJOKO, JCA. I uphold the Preliminary Objection and also dismiss the appeal.

Judgment

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/358/2016 by Honorable Justice Nasiru Saminu on the 16th of September, 2016.

The Respondent was the claimant in the lower Court and his claim was for the sum of $122,214.5833 (One Hundred and Twenty Two Thousand, Two Hundred and Fourteen US Dollars, Five Thousand Eight Hundred and Thirty Three Cents) being the amount due for textile materials supplied by the Respondent to the Appellant and which sum the Appellant failed, refused and neglected to pay despite repeated demands. ​The case of the Respondent against the Appellant in support of the claims was that it entered into an arrangement with the Appellant and his partner called Rabiu, under the trade name AlMustapha Salisu Ventures, of supplying textile materials to them on credit and to sell and thereafter remit the payment for the goods and that it was agreed that the remittance would be in US Dollars.

It was its case that it supplied the textile materials as agreed for some years and that a reconciliation of accounts showed that the Appellant and his partner were in arrears of making the remittances in the sum of USD300,758.5833 as at July 2015. It was the case of the Respondent that the Appellant and his partner had a meeting between themselves to determine and apportion the sum owed by each of them individually out of the outstanding sum and that at the end of the meeting, they made known to it in writing that the sum due from the Appellant personally was USD122,214.5833.

It was its case that the Appellant admitted in writing via a letter written by his Counsel that he was indeed owing the said sum of USD122,214.5833 and that the Appellant was referred to as “Ali” in the correspondences.

It was its case that the partner of the Appellant, Rabiu, settled the portion of the indebtedness apportioned to him while the Appellant failed, neglected and refused to pay up the admitted indebted sum despite repeated demands. ​The writ of summons and the statement of claim were accompanied by the list of witnesses, written deposition of witnesses on oath and copies of the documents to be relied upon at trial.

The Respondent also filed a motion for summary judgment pursuant to Order 11 of the High Court of Kano State Rules of 2014, along with the originating processes, and the motion was supported by an affidavit in the terms of the case of the Respondent on the pleadings and to which was attached documents and by a written address of arguments.

Upon being served with the originating processes and the motion for summary judgment, the Appellant caused to be filed (i) a notice of preliminary objection challenging the competence of the action on the grounds that (a) proper parties were not before the Court, (b) the Respondent was a foreign company carrying on business in Nigeria without due compliance with Section 54 of the Companies and Allied Matters Act, and (c) the Respondent was not a registered company in Nigeria; and (ii) a counter-affidavit to the motion summary judgment.

The Appellant admitted in the counter-affidavit that he and Rabiu carried on business as partners under the name of AlMustapha Salihu Ventures and that they received supplies of textile materials from the Respondent on credit and that they remitted the money after sale of the goods. The Appellant admitted that in a reconciliation of accounts carried out in July 2015, it was discovered that the partnership, AlMustapha Salihu Ventures, was owing the Respondent the sum of USD300,758.00 and that a document was issued to that effect.

It was his case that he was not indebted to the Respondent in the sum of USD122,214.5833 or in any sum at all and that it was the partnership that was owing the Respondent. It was his case that it was never agreed between him and his partner, Rabiu, to individualize the indebtedness and that he never instructed the Counsel that wrote the letter admitting that he owed the Respondent the sum of USD122,214.5833.

It was his case that the letter was written by the Counsel to his partner and that he signed the letter without knowing its content as he cannot read or write in English language and that he was wrongly sued. Counsel to the Appellant filed a written address on the notice of preliminary objection and a written address in support the counter-affidavit. Counsel to the Respondent filed a written response to the notice of preliminary objection and Counsel to the Appellant filed a reply address thereto.

The lower Court took arguments on both the preliminary objection and the motion for summary judgment together and it delivered a considered judgment wherein it dismissed the notice of preliminary objection and granted the motion for summary judgment. The lower Court entered judgment in favour of the Respondent in the sum claimed. The Appellant was aggrieved by the judgment and he caused his Counsel to file a notice of appeal dated the 19th of September, 2016.

The notice of appeal was subsequently amended and the Appellant filed an amended notice of appeal dated the 10th of July, 2018 and it consisted of six grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 10th of July, 2018 on the 11th of July, 2018 while Counsel to the Respondent filed a reply brief of arguments dated the 3rd of December, 2018 on the 4th of December, 2018 and the brief of arguments of the Respondent was deem properly filed by this Court on the 11th of February, 2019.

Counsel to the Appellant filed a reply brief of arguments on the 25th of February, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal. Counsel to the Appellant distilled four issues for determination in the appeal and these were: i. Whether the trial Court erred in law by holding that the Respondent was right in suing the Appellant alone. ii. Whether the trial Court lacked jurisdiction to entertain the suit. iii.

Whether the trial Court erred in law by relying on Exhibit Leeho 2 as proof of the Appellant’s indebtedness to the Respondent and granting the application for summary judgment. iv.

Whether the trial Court denied the Appellant his right to fair hearing by proceeding to hear the Respondent’s motion for summary judgment while the Appellant was still within time to file his defence to the statement of claim. ​In arguing the first issue for determination, Counsel stated that the lower Court was in error in holding that the Respondent could commence the action against him alone, and not along with his partner or their partnership in its registered name and that it was clear from the documentary exhibits that the partnership was still in existence and had not been terminated.

Counsel stated that the money claimed against the Appellant alone was owed by the partnership as shown by the document on reconciliation of accounts between the parties attached to the motion for summary judgment as Exhibit Leeho 1.

Counsel stated that the document wherein he was said to have admitted owing the sum claimed, Exhibit Leeho 2, was signed by him in the ordinary course of business and that it is settled law that the act of any partner in the ordinary course of business binds the partnership and he referred to the provisions of Section 5 of the Partnership Act 1890 and the case of Ndoma Egba Vs ACB Plc (2001) All FWLR (Pt 283) 152.

Counsel stated that, by reason of the fact that the Appellant and his partner continued to do business together after the reconciliation of the accounts, the payments made towards settlement of the outstanding sums due to the Respondent was made on behalf of the partnership and that as such, it is the partnership that ought to have been sued in its name or all the partners together or him on behalf of the partnership and he referred to the case of Maki Vs Saidi (1961) ALL NLR 524.

Counsel stated that the letter, Exhibit Leeho 2, was not evidence that the partnership had been terminated and that termination of a registered partnership is regulated by the Partnership Act. Counsel urged the Court to resolve the issue for determination in favour of the Appellant. On the second issue for determination, Counsel stated that the lower Court lacked jurisdiction to entertain the claims of the Respondent as the proper procedure was not followed in commencing the action.

Counsel stated that the action was commenced during the vacation period of the lower Court and that by the provisions of Order 45 Rules 4 and 5 of the High Court of Kano State Rules 2014 a party desirous of having his matter heard during vacation was obligated to first apply by a motion ex-parte for leave to be heard during vacation.

Counsel stated that the lower Court entertained the action without the Respondent first applying by motion ex-parte for leave to be heard during vacation, a necessary condition precedent, and this robbed the lower Court of the requisite jurisdiction to entertain the action. ​Counsel stated that Rules of Court are meant to be obeyed and that one of the conditions for the exercise of jurisdiction by a Court is that all conditions precedent for commencing action must have been fulfilled and he referred to the cases of Oyegun Vs Nzeribe (2010) 1 SCNJ 127 and Sylva Vs INEC (2015) All FWLR (Pt 810) 1151.

Counsel reiterated that the failure of the Respondent to obtain the required leave to be heard during vacation was fatal to the action of the Respondent and that the word used in the provision is ‘shall’ and this makes compliance mandatory, leaving no room for exercise of discretion and he referred to the cases of ACB International Bank Plc Vs Otu (2008) All FWLR (Pt 406) 1817 and Salik Vs Idris (2015) All FWLR (Pt 790) 1307. Counsel stated that the entire proceedings before the lower Court were thus null and void.

Counsel contended further that the Respondent is a foreign company, not registered in Nigeria, and that by the provisions of Sections 54 and 55 of the Companies and Allied Matters Act the transaction between the Respondent and the Appellant was illegal and unenforceable by the lower Court and he referred to the case of Fasel Services Vs NPA (2009) 4 SCNJ 242 on what amount to an illegal contract or transaction.

Counsel stated that the act of the Respondent in carrying on business in Nigeria without complying with the provisions of the law is evident from the processes filed by the parties before the lower Court and he referred to the case of Edicomsa Intl Inc. Vs C.I.E. Ltd (2007) All FWLR (Pt 359) 990 on the definition of carrying on business.

Counsel stated that the lower Court lacked jurisdiction to enforce an illegal contract and he referred to the cases of Fasel Services Vs NPA supra, Ajaokuta Steel Co Nig Ltd Vs Corporate Insurers Ltd (2004) All FWLR (Pt 235) 189, Pan Bisbilder Vs FBN (2000) 1 SCNJ 26, amongst others.

Counsel urged the Court to resolve the second issue for determination in favour of the Appellant. ​With regards to the third issue for determination, Counsel stated that the lower Court was in error in relying on the document attached as Exhibit Leeho 2 to the motion for summary judgment to found liability on the part of the Appellant because the contents of the document contradicted the contents of the document attached as Exhibit Leeho 1 and the deposition in the affidavit to the effect that the Respondent supplied the textile materials to the partnership.

Counsel referred to the case of Wema Securities and Finance Plc Vs Nigeria Agricultural Insurance Corporation (2015) All FWLR (Pt 807) 410 on the essence of the summary judgment procedure and stated that the Appellant raised triable issues in his counter-affidavit to have warranted the lower Court transferring the matter to the general cause list for trial on the merits. Counsel stated that there was nothing showing that the partnership between the Appellant and Rabiu had been terminated to empower the Respondent to commence an action against the Appellant alone.

Counsel urged the Court to resolve the third issue for determination in favour of the Appellant. ​In arguing the fourth issue for determination, Counsel referred to the provisions of Order 11 Rule 4 of the High Court of Kano State Rules, 2014 on the processes that a defendant desirous of contesting a motion for summary judgment should file and the provisions of Order 17 Rule 2 of the Rules on the time allowed for a defendant to file a statement of defence to an action.

Counsel stated that it is a requirement of Order 11 Rule 4 of the Rules that before a motion for summary judgment filed by a claimant can be set down for hearing, the defendant must either have filed a statement of defence together with the accompanying process or the time for doing so must have expired and that by the provisions of Order 17 Rule 2 of the Rules, the time for Appellant to file his statement of defence had not expired as at the time the lower Court heard and determined the motion of the Respondent for summary judgment.

Counsel stated that the hearing and determination of the motion for summary judgment thus breached the Appellant’s right to fair hearing and he referred to the cases of Oranezi Vs Ngige (2014) All FWLR (Pt 760) 1350 on the meaning of fair hearing. Counsel also referred to the case of Pan African Intl Inc Vs Shoreline Lift Boats Ltd (2010) All FWLR (Pt 524) 65 in restating that the test for fair hearing is the impression of a reasonable man and that the legal consequence of breach of fair hearing is that it renders the whole proceedings conducted a nullity.

Counsel stated that looking at the entire proceedings of what transpired before the lower Court the impression of a reasonable person present in Court is categorically that the Appellant was not given a fair hearing. Counsel urged the Court to resolve the fourth issue for determination in favour of the Appellant. Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and order a trial of the action.

In his response, Counsel to the Respondent also distilled four issues for determination in the appeal and these were: i. Whether the trial Court was right when it held that the Respondent, being a foreign company, had the legal right to sue the Appellant for recovery of the subject matter of the suit. ii. Whether the learned trial Judge was right when he held that the Appellant was rightly sued alone at the trial Court. iii.

Whether the trial Court complied with the provisions of Order 11 of the Civil Procedure Rules when it held that the Appellant raised no triable issue and went ahead to enter judgment against him. iv.

Whether a party who had an opportunity of being heard but failed to utilize it can bring an action or appeal against the Court’s decision for breach of fair hearing. ​In arguing the first issue for determination, Counsel stated that the Counsel to the Appellant completely misconstrued the provisions of Sections 54 and 55 of the Companies and Allied Matter Act and that Section 60 of the Act preserved the right of a foreign company to sue in Nigeria to enforce contracts and claim debts owed to it and that this right has been upheld in several decisions of this Court and of the Supreme Court and he referred to the cases ofOlaogun Ent.

Ltd Vs SJ and M (1992) 4 NLR (Pt 235) 237 and In Ritz Pumen Fabrick GMBH & Co Vs AG Techo Continental Engineers Nigeria Ltd (1994) 4 NWLR (Pt 598) 298. Counsel proceeded to suggest that even if a foreign company breaches the provisions of Section 54 of the Companies and Allied Matters Act and carries on business in Nigeria without having been registered, it could still sue to enforce its contracts because Section 55 of the Act merely imposes a fine for such a breach and does not bar the foreign company from suing or being sued and he referred to the case of E.I.I.A Vs C.I.E.

Ltd (2006) 4 NWLR (Pt 969) 114. Counsel stated that the contention of illegality canvassed by the Counsel to the Appellant was non-existent and that, moreover, a party cannot be allowed to take the benefit of a contract and then seek to rely on illegality to avoid liability and he referred to the cases of Sodipo Vs Lamminkainen OY (1986) 1 NWLR (Pt 15) 222 and Solanke Vs Abed (1962) NNLR 92.

Counsel stated that the lower Court was thus correct when it held that the Respondent had the legal right to sue the Appellant for recovery of indebtedness and he urged the Court to resolve the first issue for determination in favour of the Respondent. ​On the second issue for determination, Counsel reproduced the finding of the lower Court on the issue and he referred to the documents attached as Exhibits Leeho 1 and Leeho 2 to the motion for summary judgment – these are the document on reconciliation of accounts between the Respondent and the Appellant and his partner and the letter written by the Appellant and his Counsel where the Appellant admitted owing the Respondent USD122,214.5833 out of the total indebtedness due from the partnership.

Counsel stated that the law recognizes the authority of Counsel to bind his client in an action and that this includes all matters collateral to such action and that the consent of the client was not necessary in respect of a matter within the ordinary authority of Counsel and he referred to the case of Afegbai Vs Att-Gen., Edo State (2001) FWLR (Pt 69) 1352.

Counsel referred to Sections 20 and 22 of the Evidence Act, 2011 on the bindingness of admissions made by a person or his agent and stated that by Exhibit Leeho 2, the Appellant made representations to the Respondent as to his personal liability for the sum claimed and that he was estopped from resiling from the representation and he referred to the cases of Ebba Vs Ogodo (2000) 6 SC (Pt I) 133 and Iga Vs Amakiri (1976) 11 SC 12.

Counsel stated that in the light of the above, the finding of the lower Court that the Respondent acted rightly in suing the Appellant alone was correct and he urged the Court to resolve the second issue for determination in favour of the Respondent. ​With respect to the third issue for determination, Counsel stated that under the provisions of Order 11 of the High Court of Kano Rules, a defendant desirous of defending against a motion for summary judgment must file processes which show a bona fide defence on the merit, not one calculated to delay, and the defence must condescend on particulars by disclosing facts from which the Court can discern a good defence to the action and he referred to the case of Thor Limited Vs FCMB Ltd (2005) All FWLR (Pt 274) 217.

Counsel stated that the Respondent presented a case supported by documents wherein the Appellant admitted a personal indebtedness of USD122,214.5833, Exhibit Leeho 2, and that the Appellant failed to aver facts that show a convincing defence to the claims of the Respondent. Counsel stated the contention of the Appellant that the letter, Exhibit Leeho 2, was not written on his instructions is not tenable because he counter-signed same and he admitted that the Counsel who wrote the letter was the lawyer to himself and his partner.

Counsel reiterated his arguments under the second issue for determination on the scope of authority of Counsel to a party and urged the Court to resolve this issue for determination also in favour of the Respondent. ​In arguing the fourth issue for determination, Counsel stated that the Appellant was given ample opportunity to be heard but that he failed to utilize the opportunity and therefore cannot be heard to complain of breach of fair hearing.

Counsel stated that upon being served with the processes in the matter on the 12th of August, 2016, the Appellant chose to file a notice of preliminary objection and a counter-affidavit and did not file a statement of defence with accompanying processes and that it was on the day of the hearing of the matter, 9th of September, 2016, that the Appellant brought up the issue of filing of statement of defence, and by which time the period allowed him to file a statement of defence had elapsed.

Counsel stated that at no time, even after the date of hearing and before judgment, did the Appellant file any statement of defence or an application to regularize a statement of defence. Counsel stated that having been given an opportunity to be heard, it was not open to the Appellant who failed to utilize the opportunity to complain of breach of fair hearing and he referred to the case of Chevron Nigeria Limited Vs Lowaz (2017) LPELR-42813(CA).

Counsel urged the Court to resolve the issue in favour of the Respondent. ​Counsel concluded his submissions by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

Reading through the records of appeal, particularly the case of the parties on the writ and in the depositions in the affidavit and counter-affidavit on the motion for summary judgment together with the contents of the exhibits attached, the judgment of the lower Court and the notice of appeal, as well as the arguments of Counsel in their respective briefs of arguments, this Court is of the view that there are only two issues for determination in the appeal. These are: i.

Whether, on the peculiar facts and circumstances of this case, the lower Court was correct when it entered summary judgment in favour of the Respondents. ii. Whether the lower Court breached the Appellant’s right to fair hearing at any stage of the proceedings. This appeal will be resolved on the two issues for determination and all the relevant arguments canvassed by the Counsel to the parties in their respective briefs of arguments will be considered under the two issues for determination.

Issue One Whether, on the peculiar facts and circumstances of this case, the lower Court was correct when it entered summary judgment in favour of the Respondents Judgment was entered by the lower Court on the Respondent’s motion for summary judgment filed pursuant to the provisions of Order 11 of the High Court of Kano State (Civil Procedure) Rules. The term summary judgment denotes a judgment usually granted by Court on a claim about which there is no genuine issue of material fact, and upon which the claimant is entitled to prevail as a matter of law.

Primarily, the Court takes into consideration the pleadings, the motions, and, where necessary, additional evidence adduced by the parties to determine whether or not there is a genuine issue of material fact, rather than one of law.

The primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial – Nnabude Vs G N Godiscoy (W/A) Ltd (2010) 15 NWLR (Pt 1216) 365, Bona V Textile Ltd Vs Asaba Textile Mill Plc (2013) 2 NWLR (Pt 1338) 357. ​Order 11 of the High Court of Kano State (Civil Procedure) Rules provides for summary judgment where it is clearly shown on the papers before the Court that the defendant has no good defence to a plaintiff’s claim.

The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. A sham defence is an unreal, fake and deceitful defence. No amount of sophistry or technical pyrotechnics can launder a sham defence into a real defence to a plaintiff’s pleaded facts and verifying evidence.

In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441, Ifeanyichukwu Trading Investment Ventures Ltd Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Matab Oil & Gas Ltd Vs Fundquest Financial Services Ltd (2020) 17 NWLR (Pt 1752) 1.

Order 11 Rule 1 of the High Court of Kano State (Civil Procedure) Rules states that where a claimant reasonably believes that the defendant has no defence to his claim, he shall file with the originating process, the statement of claim, the exhibits, the depositions of witnesses and an application for summary judgment and the said application shall be supported by an affidavit stating the grounds and a written brief in respect thereof.

Order 11 Rule 4 provides that a defendant who is served with all the processes referred to in Rule 1 shall not later than the time prescribed for defence file: (i) his statement of defence; (ii) deposition of witnesses; (iii) exhibits to be used in his defence; and (iv) a written brief in reply to the plaintiff’s application for summary judgment. Order 11 Rule 5 (1) stipulates that where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defence.

Order 11 Rule 5 (2) states that where it appears to a Judge that the defendant has no good defence, the Judge may thereupon enter judgment for a claimant – The Registered Trustees of Fansum Foundations Vs Partners for Development (2021) 11 NWLR (Pt 1787) 388.

The summary judgment procedure was evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the Court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37, Samabey International Communications Ltd Vs Celtel Nigeria Limited (2013) LPELR-20758(CA).

In other words, where there is no reasonable doubt on the efficacy of the claim of a claimant and the defendant does not disclose a plausible defence to the claim, the claimant is entitled to judgment under the summary judgment procedure – Torno Internazionale Nigeria Ltd Vs FSB International Bank Plc (2013) LPELR-22616(CA).

The procedure is best suited for a liquidated money demand; that is a sum of money that is arithmetically ascertainable without further investigation – Maja Vs Samouris (2002) 7 NWLR (Pt 765) 78, African International Bank Plc Vs Packoplast Nigeria Ltd (2003) 1 NWLR (Pt 802) 502, A. T. S. & Sons Vs Ben Electronics Co. Nig. Ltd (2018) 17 NWLR (Pt 1647) 1, Nigeria Breweries Plc Vs National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499.

Now, what the provisions of Order 11 of the High Court of Kano State Rules do is that where a claimant applies for judgment under the summary judgment procedure and the case of the plaintiff is suited for the procedure, the burden is put on a defendant to satisfy a trial Court that he has a good defence, or to disclose other facts entitling him to defend, otherwise judgment would be entered for the claimant. The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that: i.

The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and should also clearly and concisely state what the defence is; ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position; iii. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay; iv.

In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence; v. Only defences on the merit are allowed; the defendant cannot rely on sham defence; vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.

See the cases Nishizawa Vs Jethwani (1984) 12 SC 234, Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Federal Military Government of Nigeria Vs Sani (1990) 5 NWLR (Pt 147) 688, Sanusi Brothers (Nigeria) Ltd Vs Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt 679) 566, Wema Securities & Finance Plc Vs Nigeria Agricultural Insurance Corp (2015) 16 NWLR (Pt 1484) 93, Nigeria Breweries Plc Vs. National Union of Food Beverages and Tobacco Employees (2020) 7 NWLR (Pt 1724) 499.

In the case, The Estate of Olusola Popoola Vs Access Bank Plc (2020) 16 NWLR (Pt 1751) 539, this Court explained thus: “The purpose of the summary judgment procedure is to allow for the disposal of cases which are not contested and where it is inexpedient to allow the defendant who has no defence to waste the time of the Court. In a summary judgment procedure, the defendant has a duty in law to establish facts in such a manner that will meet the case of the claimant.

A defendant’s affidavit must show that the defence he is raising is particularized and as much as possible deal with the specifics and state clearly and concisely what the defence is and what facts are relied on as supporting the position taken. It is his responsibility to raise a triable issue in the affidavit seeking to defend the claim. The defence must be a bona fide or good defence or raise a triable issue and not a sham or spurious defence.

The mere filing of an affidavit that does not answer the case of the claimant will not stand to sway the Court into allowing the defendant defend the claim.” ​The claim of the Respondent in the instant case was for a liquidated money demand; the sum of USD122,214.5833 being the debt due from the Appellant to the Respondent for textile materials supplied to the Appellant on credit.

It was an agreed fact between the parties that the Appellant and his partner called Rabiu, carried on business under the trade name Al Mustapha Salisu Ventures and that they entered into an arrangement with the Respondent for the supply of textile materials on credit and after which they would sell and remit the payment for the goods in US Dollars. It was an agreed fact that sometime in July 2015, the Appellant and his partner had a reconciliation of accounts meeting with the Respondent and the result showed that the Appellant and his partner were in arrears in the sum of USD300,758.5833.

The document by which the Appellant and his partner admitted the sum, with a promise to liquidate same, was attached as Exhibit Leeho 1. ​The Respondent pontificated that the Appellant and his partner thereafter had a meeting between themselves to determine and apportion the sum owed and at the end of which the sum of USD122,214.5833 was shared to the Appellant and the Appellant caused a letter to be written to the Respondent by his Counsel, and which he countersigned, admitting in owing the said sum of USD122,214.5833.

The letter, Exhibit Leeho 2, read in part thus: “We are Solicitor to Ali who is one of the directors of AlMustapha Salihu Ventures … Your company sequel to the agreement with our client on 27th of July, 2015 supplied goods to our client on different occasions worth USD151,514.5833. It is the instruction of our client to inform you about the position of the account in respect aforementioned transaction as follows: 1. The total amount of the money of goods supplied to our client – USD151,714.5833. 2. Total amount of the money transferred to your company – USED27.5. 3.

Outstanding balance of your money with our client – N122,214.5833. …” The letter was signed by Counsel to the Appellant and was countersigned by the Appellant. The Appellant admitted countersigning the letter, both before the lower Court and before this Court. The Appellant contended on the counter-affidavit filed before the lower Court that he did not instruct the Counsel to write the letter and that he signed same without understanding its contents because he could not read or write English language.

In this appeal, however, the Appellant changed tact and his Counsel admitted that the letter was indeed written on the instructions of the Appellant and that the Appellant knew what he was signing, but he contended that the Appellant signed the letter on behalf of the partnership, AlMustapha Salihu Ventures, in the ordinary course of business and that since the act of a partner done in the ordinary course of business binds the partnership, the letter should be taken as having been done on behalf of AlMustapha Salihu Ventures. ​It is elementary that an appeal is not for retrying the action, rather it is a rehearing on the Record of Appeal.

The appellate Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discover the truth.

A party should not be seen to approbate and reprobate or to speak from both sides of his mouth at the same time on an issue in the case – Thomas Wyatt and Son (North Nigeria) Ltd Vs Plumstead Investment Limited (2019) 12 NWLR (Pt 1687) 540, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511.

No reasonable Court or Tribunal will come to the aid of a party who is inconsistent in the presentation of his case before it – Oliyide & Sons Ltd Vs Obafemi Awolowo University Ile-Ife (2018) LPELR-43711(SC), Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124, Akande Vs IBB University, Lapai (2020) LPELR-52552(CA). In Akaninwo Vs Nsirim (2008) All FWLR (Pt. 410) 610 at 663, Tobi, JSC made the point thus: “A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth.

He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case. A party cannot by his complete state of mind make an admission and later decide to change it by an amendment.”

The Court thus rejects the case made out by the Appellant on his signing of the letter, Exhibit Leeho 2 for lack of consistency in its presentation. The letter constitutes an admission of the sum claimed by the Respondent. It is settled that an admitted fact ceases to be in issue and it is deemed established – Eweje Vs O.M.

Oil Industries Ltd (2021) 4 NWLR (Pt 1765) 117, Skymit Motors Ltd Vs United Bank for Africa Plc (2021) 5 NWLR (Pt 1768) 123, Passco International Ltd Vs Unity Bank Plc (2021) 7 NWLR (Pt 1775) 224, Central Bank of Nigeria Vs Dinneh (2021) 15 NWLR (Pt 1798) 91, Abimbola Vs State (2021) 17 NWLR (Pt 1806) 399. There was thus no doubt about the efficacy of the claim of the Respondent for the sum of USD122,214.5833.

In putting forward a defence to the claim, the Appellants canvassed (i) that proper parties were not before the Court; (ii) that the lower Court lacked jurisdiction to entertain the claim on the grounds that (a) proper mode of commencement of action was not followed, and (b) the transaction upon which the claim was based was illegal; (iii) that the Appellant presented a triable defence. ​The Appellant predicated his contention that proper parties were not before the Court on the ground that the money in question was owed by the partnership, AlMustapha Salihu Ventures consisting of himself and his partner, Rabiu, and that it was the partnership that ought to have been sued and not him alone.

It is settled law that it is the prerogative of a claimant to determine the defendants in a suit. The liability of each of the parties in the suit would be determined having regards to the pleadings and evidence led by the claimant in the light of the applicable laws. Therefore in order to determine whether a party is a proper defendant to a suit, all the Court needs to do is to examine the claim of the claimant before the Court.

It is the plaintiff’s claim that gives him the right to initiate the action of the alleged wrongful act – Dantata Vs Mohammed (2000) 7 NWLR (Pt 664) 176, Adekoya Vs Federal Housing Authority (2000) 4 NWLR (Pt 652) 215, Ogbebo Vs Independent National Electoral Commission (2005) 15 NWLR (Pt 948) 376, Bello Vs Independent National Electoral Commission (2010) 8 NWLR (Pt 1196) 342. ​Looking at the case made out on the processes filed by the Respondent and the reliefs sought, they were directed at the Appellant alone, and not the partnership.

The rejection of the case made out by the Appellant on his signing of the letter by which he admitted personal liability for the sum claimed “removes the wind from the sail” of the contention of the Appellant that he was not the proper defendant to be sued. The contention did not thus raise any plausible defence. The first contention of the Appellant on lack of jurisdiction was predicated on non-compliance by the Respondent with the provision contained in the Rules of Court on commencing an action during the annual vacation of the lower Court.

This contention is on the procedural jurisdiction of the lower Court to hear the matter. This Court has read through the records of appeal and noticed that this complaint was not raised or canvassed by the Appellant before the lower Court and that the Appellant fully participated in the proceedings despite being aware of the alleged defect in the mode of commencing the action.

The law is that there is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at any time. Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction.

It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court.

A matter that impugns the presumed competence of the action should be raised by the opponent – Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 71, Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522) 536, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) 1. Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR 22362(CA). It is matters of substantive jurisdiction that can be raised at any time and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction – Odu’a Investment Co.

Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488.

A matter of procedural jurisdiction must be raised by a party before taking steps in the proceedings and where it is not so raised, it is deemed waived and cannot be raised again by the party unless there has been a substantial miscarriage of justice caused thereby –F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Akahall & Sons Ltd Vs Nigeria Deposit Insurance Corporation (2017) 7 NWLR (Pt 1564) 194, Belgore Vs Federal Republic of Nigeria. (2021) 3 NWLR (Pt 1764) 503, Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1.

Where a party consents to an irregular procedure adopted by his adversary in the lower Court by participating in the proceedings without any complaint, he cannot be heard to complain on appeal that the procedure was irregular – Adama Vs State (2018) 3 NWLR (Pt 1605) 94, Ekwuruekwu Vs State (2020) 4 NWLR (Pt 1713) 114, Ajibade Vs Gbadamosi (2021) 7 NWLR (Pt 1776) 475, Aje Printing (Nig) Ltd Vs Ekiti LGA (2021) 13 NWLR (Pt 1794) 498.

The Appellant cannot be heard on this complaint and it is unfounded in this appeal and cannot affect the judgment of the lower Court. ​The second contention of the Appellant on lack of jurisdiction on the part of the lower Court to entertain the case of the Respondent was that the transaction upon which it was anchored was illegal because the Respondent was a foreign company, not registered in Nigeria, and was forbidden by the provisions of Section 54 and 55 of the Companies and Allied Matters Act from carrying on business in Nigeria.

It is not in contest between the parties that the Respondent is a foreign company, not registered in Nigeria. The law on the extent to which a foreign company, not registered in Nigeria, can operate within Nigeria has been settled by the Courts.

A foreign company has a right to sue in Nigeria for the enforcement of contracts or to recover debts owed to it and a Nigeria Court has jurisdiction to entertain such claims made by a foreign company – Nigerian Bank for Commerce & Industry Ltd Vs Europa Traders (UK) Ltd (1990) 6 NWLR (Pt 154) 36, Watanmal (Singapore) Pte Limited Vs Liz Olofin & Co Plc (1998) 1 NWLR (Pt 533) 311, Emespo J Continental Ltd Vs Automotor France S.A. (2016) LPELR-42232(CA), NU Metro Retail (Nig) Ltd Vs Tradex S.I.L (2017) LPELR-42329(SC), Citec International Estates Ltd Vs Edicomisa International Inc & Associates (2018) 3 NWLR (Pt 1606) 332.

In Saeby Jernstoberi Maskinfabric A/S Vs Olaogun Enterprises Ltd (1999) 14 NWLR (Pt 637) 128, the Supreme Court reiterated the point thus: “The principle of law that a foreign corporation, duly created according to the laws of a foreign State recognized by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law.

The suggestion that a foreign company duly incorporated outside Nigeria should be first registered in Nigeria under the provision of the Companies Act, 1968 (which was then the applicable Statute) dealing with registration of foreign companies, notwithstanding that it does not fall into the category of foreign company as defined by that Act, is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration.

It suffices to say the appellant company, which was admitted by the respondent to be limited liability company with its registered office in Copenhagen properly sued in its corporate name.” Where, however, the contract sought to be enforced or the debt sought to be recovered arose in the course of the foreign company carrying on business within Nigeria, without having been first duly registered in accordance with the provisions of the Companies and Allied Matters Act, the foreign company is barred from suing as the transactions sought to be enforced are deemed illegal and the Nigeria Courts lack jurisdiction to enforce an illegal contract – Citec International Estates Ltd Vs Edicomisa International Inc & Associates supra.

Now, Section  54 of the Companies and Allied Matters Act which imposes the restriction on the operation of foreign companies in Nigeria states in its subsection (1) that: “Subject to Sections 56 to 59 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.” ​What is inferable from this provision is that a foreign company will be said to be carrying on business in Nigeria when it has a place of business in the country, when it exercises any of the powers of a registered company under the Act or when it has an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to its incorporation.

Reading through the processes filed by the Respondent in support of its claims and the responses filed thereto by the Appellant, nowhere therein was it stated or suggested that the Respondent had a place of business or an address for service of documents or processes in Nigeria. ​The case of the Respondent was that it was an importer and exporter of textile materials and that it established business contacts in Nigeria and to whom it supplied textile materials on credit and that the contacts remit repayment to it after selling the materials.

It was its case that it was in the course of such arrangement that the Appellant incurred a debt in the sum claimed for. The Appellant did not counter these assertions in his responses. The transactions leading up to the debt did not thus arise in the course of the Respondent carrying on business in Nigeria and it is not illegal. The Respondent had a right to sue for the debt and it was an action over which the lower Court had and properly exercised jurisdiction.

Reading through the contents of the counter-affidavit of the Appellant to the motion for summary judgment, it is clear that it presented no recognizable, plausible or iota of defence to the claims of the Respondent. All the depositions therein were aimed at diverting the attention of the lower Court from the admitted liability of the Appellant. The matter was one properly suited for hearing under the summary judgment procedure and the lower Court was correct when it entered judgment for the Respondent thereon. The first issue for determination is resolved in favor of the Respondent.

Issue Two Whether the lower Court breached the Appellant’s right to fair hearing at any stage of the proceedings. The concept of fair hearing adumbrated under this issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves.

It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua – Daniel Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1771) 20, Destra Investment Ltd Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1771) 57, Central Bank of Nigeria Vs Bako (2021) 11 NWLR (Pt 1786) 122.

Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing.

If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule – Ararume Vs Ibezim (2021) 8 NWLR (Pt 1779) 543, John Holt Plc Vs Nwabuwa (2021) 11 NWLR (Pt 1787) 325, Muyideen Vs Nigerian Bar Association (2021) 13 NWLR (Pt 1794) 393, National Ear Care Center Vs Nnadi (2021) 17 NWLR (Pt 1805) 365. This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground.

It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

Hence, fair hearing is not only a common law right but also a constitutional right – Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348, Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175, Adebowale Vs Ademola (2021) 4 NWLR (Pt 1767) 399, Dasuki Vs Federal Republic of Nigeria (2021) 9 NWLR (Pt 1781) 249.

​The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing.

Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45, Ayoade Vs State (2020) 9 NWLR (Pt 1730) 577, Ndukwe Vs Union Bank of Nigeria Plc (2021) 4 NWLR (Pt 1765) 165. ​The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case.

The complaint of the Appellant under this issue for determination was that the lower Court heard and determined the Respondent’s motion for summary judgment before the expiration of the time allowed him by the Rules of Court to file his statement of defence.

As stated earlier, Order 11 Rule 4 of the High Court of Kano State Rules provides that a defendant who is desirous of defending an action commenced under the summary judgment procedure should file his statement of defence, deposition of witnesses, exhibits to be used in his defence and a written brief in reply to the plaintiff’s application for summary judgment.

The provision did not say that a motion for summary judgment could not be heard without a defendant first having filed these processes. ​The Appellant, upon being served with the processes of the Respondent, chose on his own to file only a notice of preliminary objection, a counter-affidavit to the motion for summary judgment and written brief in reply. The Appellant did not file a statement of defence, deposition of witnesses, and exhibits to be used in his defence, by choice.

There is nothing showing that the Appellant was stopped or in any way prevented by the lower Court or by anyone from filing those processes. The records of appeal show that when the matter came up on the 6th of September, 2016, the lower Court, with the consent of Counsel to both parties, adjourned the case to the 9th of September, 2016 for the hearing of both the preliminary objection of the Appellant and the substantive motion for judgment of the Respondent.

Counsel to the Appellant, at the time of consenting to the hearing, was aware that the Appellant was yet to file a statement of defence and accompanying processes and no step was taken to file the processes before the date for hearing. The records show that on the 9th of September, 2016, Counsel to the Appellant informed the lower Court that he was ready for the hearing of both the preliminary objection and the substantive application and he commenced the hearing by arguing the preliminary objection.

The records show that in the course of arguing the substantive application for judgment, Counsel to the Respondent stated that the Appellant did not comply with the provisions of the Rules requiring him to file a statement of defence with accompanying processes and he prayed the lower Court to strike out the counter-affidavit and the written brief.

The records show that Counsel to the Appellant responded by urging the lower Court to consider the counter-affidavit and the written brief in determining the motion for judgment and that the failure to file a statement of defence with accompanying processes was no big deal and the Appellant still had time to file them. In other words, the failure to file the Appellant to file a statement of defence with accompanying processes in contesting against the Respondent’s motion for summary judgment was a personal decision taken by the Appellant and his Counsel, perhaps as a legal tactic.

The Appellant and his Counsel were comfortable defending the motion with the preliminary objection, counter-affidavit and written brief. The records show that the lower Court considered the preliminary objection, the counter-affidavit and written brief of the Appellant in making its findings. The hearing and determination of the motion for summary judgment in the absence of a statement of defence with accompanying processes cannot thus be said to constitute a breach of the Appellant’s right to fair hearing in the circumstances. The contention of the Appellant was totally misconceived.

The second issue for determination is resolved in favour of the Respondent. ​This appeal is downright frivolous and a blatant waste of scarce judicial time. The appeal fails with ignominy and it is dismissed. The judgment of the High Court of Kano State delivered in Suit No K/358/2016 by Honorable Justice Nasiru Saminu on the 16th of September, 2016 is hereby affirmed. The Appellant is awarded the cost of the suit assessed at N200,000.00. These shall be the orders of the Court.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA and I am in complete agreement with the reasoning and conclusion reached therein. The appeal is without merit and it is accordingly dismissed. I abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother HABEEB ADEWALE. O. ABIRU, JCA. I am in agreement with the reasoning and conclusions reached by him in this appeal. ​For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.

Judgment

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgement) : This is the ruling in respect of the motion on notice filed by the appellant/applicant on 15/6/2021 praying as follows: 1. “An Order for enlargement of time within which the Appellant/applicant may apply to this Court for an order relisting Appeal No. CA/EK/43/2021 between NAZEEDES BORNER NIGERIA LIMITED VS.

HONGYE AMIP CONCEPT LIMITED which was struck out on 23rd day of January, 2018 by this Honourable Court for failure of the Appellant to comply with the Order of the Court awarding cost to the Respondent on 19th of October 2015. 2. An Order of this Honourable Court relisting Appeal No. CA/EK/81/2014 Between NAZEEDES BORNER NIGERIA LIMITED VS. HONGYE AMIP CONCEPT LIMITED which was struck out on 23rd January, 2018 for failure to comply with the Order of Court made on 19th of October, 2015 directing the Appellant to pay cost to the Respondent. ​3.

An Order of this Honourable Court granting leave to the Appellant/applicant to file and argue an additional ground of appeal against the judgment of the lower Court in Suit No: HAD/40/2013 between HONGYE AMIP CONCEPT LIMITED VS NAZEEDES BORNER NIGERIA LIMITED delivered on 11th day of April, 2014 challenging the jurisdiction of the trial Court to entertain the matter. Prayers 4 and 5 of the application as reflected on the motion paper were withdrawn by the applicant and struck out.

The surviving prayers in this application are: (i) Prayer for extension of time to apply for relisting of Appeal No CA/EK/81/2014 (ii) Prayer for relisting of the said appeal (iii) Prayer for leave to file and argue additional ground of appeal against the judgment of the lower Court. ​The grounds of the application are as follows: 1. The appeal was struck out on the ground that the Appellant failed to comply with the orders of this Honourable Court made on 19th October, 2015 awarding cost in favour of the Respondent and against the Appellant. 2.

The Court’s orders as to cost were never brought to the attention of the Appellant company by its erstwhile counsel Izuchukwu Okorie, Esq. 3. The Appellant is desirous of diligently prosecuting this appeal and have therefore complied with the order of this Court by paying the costs awarded to the Respondent pursuant to which this appeal was struck out. 4. The appeal raises serious issues of jurisdiction as it relates to the competent of the writ of summons issued and served on the Appellant who resides outside jurisdiction without a leave to issue and serve. 5.

The Appellant/Applicant as soon as after having the knowledge of the position of this appeal has complied with the order of this Honourable Court as to cost, and is desirable of expeditiously pursuing the appeal. 6. The Appellant/Applicant had earlier filed similar application before this Honourable Court on 6th day of March 2020, but same was struck out on 14th May, 2021 for carrying the Appeal No. of the substantive Appeal already struck out by this Corut on 23rd January, 2018. 7.

The order of Court sought to be set aside is not a decision on the merits and the Court has the discretion to set same aside. The application is supported by 25 paragraph 3-10 and paragraph 14-21 of the affidavit in support of the Motion on Notice. ​ Learned counsel for the applicant, Olalekan Olatawura, adopted his written address in support of the Motion on Notice. He urged the Court to grant the application. The Respondent opposed the application by filing a 20 paragraph counter affidavit on written address prepared by A. O. OKEYA his counsel.

Most relevant of the averments in the counter affidavit are paragraphs 4, 7, 8, 11 – 15 of the counter-affidavit. Learned counsel for the Respondent, A. O. OKEYA filed written address on 16/12/2021 which was deemed filed on 8/3/2022. He based his argument on the issues proffered by the applicant and urged the Court to dismiss the application. I have deeply considered the submission of learned counsel on both sides. What conditions must an applicant fulfill before an application for extension of time within which an appellant may take procedural steps can succeed? MOHAMMED JSC in OLATUNBOSUN v.

TEXACO (NIG.) PLC. & ANOR (2012) LPELR-7805 (SC) CHIEF T. O. S. BENSON v.

NIGERIA AGIP OIL CO. (1982) 5 S.C. 1 explained it thus “There is no doubt that an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking steps the grant of the enlargement of time applied for.” The question to ask in this application is, has the applicant adduced good substantial or exceptional reasons for this application to be granted?

His reasons are:- i) Appeal No CA/EK/81/2014 was struck out on 23/1/2018 for failure to comply the Order of Court awarding costs on 19/10/2015. ii) A previous similar application before this application was filed on 6/3/2020 but struck out on 14/5/2021 for carrying the Appeal No. of the substantive appeal that was struck out on 23/1/2018. iii) One major cause of delay as can be gathered from paragraphs 7-12 of the affidavit in support is the lack of diligence on the part of its former counsel IZUCHUKWU OKORIE. ​The said paragraphs 7-12 of supporting affidavit state: “1.

That the Appellant/applicant perfected fully the brief of its erstwhile counsel, Izuchukwu Okorie, Esq. to handle the appeal to its logical conclusion at the Court of Appeal. 2. That I have kept contact and indeed constantly called our erstwhile in Court of which he has always obliged. 3.

That the erstwhile counsel, Izuchukwu Okorie, Esq. as a matter of fact did file and Appellant’s Brief on behalf of the Appellant/Applicant long before the appeal was struck out for non-compliance with the order of Court as to the awarded costs, which made this Honourable Court to find as a fact on 23/1/2018 that the issue of want of diligent prosecution was a non-issue. 4. That our erstwhile counsel has always given us the impression that everything was in order each time we call to get an update in respect of the pending appeal. 5.

That surprisingly, we were informed on the 22nd day of February, 2020 by one of our bankers (Zenith Bank) that there is a ganishee order Nisi attaching all the Appellant/Applicant accounts as a result of the execution of the judgment which is the subject of this appeal. 6. That further to the averment in para 11, I immediately placed over 20 calls to our erstwhile counsel Izuchukwu Okorie through his phone number 08033008259 in order to be properly informed of the state of affairs in relation to the proceedings in Court but we got no response from him”.

Learned counsel for the Respondent in his counter-affidavit did little in counter acting the allegation of the applicant as regard its lawyer, IZUCHUKWU OKORIE. See paragraphs 5, 6 – 9 of the counter affidavit. It seems clear to me in the circumstance that the delay of the applicant which has resulted in this application is largely as a result of the sin of its counsel. The sin of counsel should not be visited on his client. See SALEH v. MONGUNO (2006) 15 NWLR Pt. 1001 P. 26. According to PETER-ODILI JSC in OGUNPEHIN v.

NUCLEUS VENTURE (2019) LPELR – 48772 (S.C) “It is correct and indeed trite in law that parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case the Court would show interest and lean towards accommodating the parties determination of the case on the merits. See CBN v. AHMED (2001) 11 NWLR (PT. 724) 369 at 394; OGUNDOYIN v. ADEYEMI (2001) 13NWLR (1980) 5-7 SC. 42 at 52; BELLOW AKANBI v. MAMUDU ALAO (1989) 3NWLR (PT. 108) 118; BOWAJE v.

ADEDIWURA (1976) 6 SC. 143.” I am minded to allow the parties to ventilate their respective grievances in the interest of justice. I am satisfied with the reasons adduced by the applicant for the delay. It would be unfair to visit the sin of the applicant’s counsel on him in the circumstances of this case. In the circumstance, ORDER AS PRAYED in term of prayers 1 – 3 of the application i) Appeal No. CA/EK/81/2014 BETWEEN NAZEEDES BORNER NIGERIA LTD VS HONGYE AMIP CONCEPT LTD is hereby relisted. ii) Leave for the appellant to file appeal against the judgment of the lower Court in Suit No.

HAD/40/2013 BETWEEN HONGYE AMIP CONCEPT LTD. VS. NAZEEDES BORNER NIG. LTD delivered on 11/4/2014 challenging the jurisdiction of the trial Court to entertain the matter is hereby granted. Appellant is to file Amended Notice of Appeal in line with EXHIBIT F attached to the affidavit in support of motion on notice. I award N200,000 as cost in favour of the Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ABDUL-AZEEZ WAZIRI, J.C.A.: I have been afforded a copy of the lead ruling prepared and delivered by TUNDE O. AWOTOYE, JCA before now. I am satisfied with my Lord’s reasoning and conclusion in granting the application in terms of prayers 1-3 on the face of the motion paper. I also abide by the consequential order made including the issue of cost awarded against the Applicant and in favour of the Respondent.

Judgment

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is related to APPEAL NO. CA/IB/344/2020, the judgment of which was delivered this morning. The facts on which the cause of action in both matters were ventilated are the same. Indeed, the lower Court in its judgment in this matter adopted the judgment it gave in the said related matter. The Respondent herein was the Applicant at the Federal High Court, Abeokuta Division in an application for the enforcement of fundamental rights.

The facts of the matter as presented by the Respondent in the processes filed at the lower Court disclose that on or about the 25th day of January 2019, the officers of the Appellants herein, Respondents at the lower Court, carried out an anti-smuggling operation at the Owode Area of Ogun State.

In the course of the operation, the officers allegedly ransacked the shops of the traders in the area, including that of the Respondent’s deceased brother, Olabode Sunday, who was alleged to have been shot dead in the course of the operation and his corpse was taken to the State Hospital, Ota, by Police Officers. ​The case of the Appellants, as Respondents at the lower Court was a denial of the allegations as to what allegedly transpired on 25th January 2019.

They however asserted that they carried out an operation on 21st January 2019 at the Celestial Church of Christ, Owode, in order to seize smuggled foreign parboiled rice which intelligence reports disclosed were loaded in about 50 vehicles coming to Owode from Ado Odo Creek. It is their case that upon arrival at Celestial Church of Christ, Owode, some hoodlums who were armed with dangerous weapons attacked them and that in consequence, their officers fired shots in the air to disperse the crowd of attackers.

They maintain that nobody was injured or killed as a result of the shots that they fired in the air. It is premised on these set of facts that the Respondent instituted proceedings before the lower Court in SUIT NO. FHC/AB/FHR/3/2020: MR. OLAYINKA SUNDAY (Suing as Applicant and Next of Kin on behalf of Olabode Sunday, The Deceased) vs. NIGERIA CUSTOMS SERVICE BOARD & ORS.

The Respondent claimed the following reliefs: (a) A DECLARATION that the arrest, torture and extra-judicial killing of the Applicant’s deceased brother (late Olabode Sunday) by the Customs Officers attached to Idiroko Area Command of Ogun State agents of the Respondents on the 25th of January 2019 at Owode Area of Ogun State without any Court order is illegal, unlawful, unconstitutional and a gross violation of the Applicant’s deceased brother constitutional right to life, dignity of human person and fair hearing as enshrined under Section 33, 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria and the African Charter and the Universal Declaration of Human Rights. (b) AN ORDER DIRECTING the IMMEDIATE PROSECUTION of the culpable Customs officers attached to the Idiroko Area Command for the unlawful and extra-judicial killing of the Applicant’s deceased brother (late Olabode Sunday) on the 25th of January 2019 at Owode Area of Ogun State without any order of Court. (c) AN ORDER compelling the Respondents to jointly and severally issue a Public Apology in Three (3) widely circulated Newspaper publications and to pay the sum of N500,000,000.00 (Five Hundred Million Naira) only as GENERAL and EXEMPLARY DAMAGES in favour of the Applicant and his family for the unlawful and extra-judicial killing of the Applicant’s deceased brother (late Olabode Sunday) without any order of the Court. (d) AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents jointly and severally whether by themselves, their agents, officers, officials, privies, servants or anyone else claiming or deriving authority from them from harassing, intimidating, inviting, arresting, detaining or disturbing the Applicant in connection with the facts of this case.

The application was heard on the affidavit evidence and other processes filed and exchanged by the parties. The lower Court in its judgment, which was delivered on 16th July 2020, struck out the name of the 2nd Appellant from the action and entered judgment against the 1st Appellant only in terms of reliefs (a) and (d) and further awarded the sum of N40 million as damages against the 1st Appellant. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 22nd July 2020.

The judgment of the lower Court is at pages 74-108 of the Records, while the Notice of Appeal is at pages 109-110A of the Records. ​In prosecution of the appeal, the Records of Appeal was compiled and transmitted on 13th October 2020, but deemed as properly transmitted on 25th November 2021. The parties thereafter filed and exchanged briefs of argument. The Appellants filed their brief of argument on 24th November 2020 and their Reply Brief on 30th June 2021. On his part, the Respondent filed his brief of argument on 16th June 2021.

All the briefs were deemed as properly filed on 25th November, 2021. The Respondents also filed a Notice of Preliminary Objection which was argued in the Respondent’s brief of argument. At the hearing of the appeal on 25th November, 2021, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the matter. THE PRELIMINARY OBJECTION It is the Respondent’s preliminary objection which is threshold in nature and seeks to scuttle in limine the hearing and determination of the appeal on the merits that will first captivate our attention.

The preliminary objection is predicated on the following grounds: “1. That the appeal herein is grossly incompetent and improperly constituted. 2. That the Appellants Notice of Appeal was NOT served on the Respondent herein. 3. That the non-service or failure to serve the Appellants Notice of Appeal on the Respondent or his counsel robs this Court of jurisdiction to hear this instant appeal. 4. That the Appellants’ one (1) ground of appeal as contained in the Notice of Appeal is one of mixed law and facts wherein leave of Court was not sought and obtained by the Appellants. 5.

The one (1) ground Notice of Appeal is solely grounded in mixed law and fact and clearly incompetent to enable this Court properly exercise it [sic] jurisdiction to hear this appeal. 6. The jurisdiction of this Court has NOT been properly activated by the Appellants. 7. It is in the interest of justice to dismiss and/or strike out this instant appeal for being grossly incompetent.” The Respondent submits that the Notice of Appeal is the originating process and spinal cord of an appeal vide ANI vs.

EFFIOK (2017) 8 NWLR (PT 1567) 281 at 301 and that the failure to serve the Respondent with the Notice of Appeal is a fundamental defect which affects the jurisdiction of the Court to entertain the appeal.

The affidavit of non-service of the Notice of Appeal deposed to by the bailiff of the lower Court was referred to and it was opined that even the attempted service was not made at the address for service of the Respondent’s counsel on record. The Court was accordingly urged to strike out the appeal since the Notice of Appeal was not served.

It is the further contention of the Respondent that the Appellants’ sole ground of appeal was a ground of mixed law and fact which requires leave of Court, and that the Appellants having failed to seek and obtain leave of Court in respect of the said ground of appeal rendered the appeal incompetent. The case of FBN PLC vs.

A-G FEDERATION (2018) 7 NWLR (PT 1617) 121 at 151 was relied upon. ​In opposing the preliminary objection, the Appellants submit that from the affidavit of non-service, it was clear that the Respondent’s counsel refused to accept service of the process and used abusive words on the bailiff. It was stated that by Order 6 Rule 26 of the Federal High Court (Civil Procedure) Rules, 2019, it sufficed in such circumstances if the person to be served is told the nature of the process.

This, it was posited, was done, which made it possible for the Respondent’s counsel to later collect the necessary documents which enabled him file the Respondent’s brief and preliminary objection. It was further submitted that the sole ground of appeal is a ground of law which challenges the availability of evidence on the basis of which the lower Court held that the allegations of the Respondent were proved beyond reasonable doubt.

It was opined that though difficult to distinguish a ground of law from a ground of fact, but that the Appellants’ ground of appeal which complains about the absence of the required evidence as provided by law is a ground of law, not mixed law and fact as contended by the Respondent. The cases of IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) [no page stated] or (2008) LPELR 1476, THE MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG) LTD (2010) LPELR-3189 (SC) or (2010) 12 NWLR (PT 1208) 261 and UWAK vs.

EKPENYONG (2019) 7 NWLR (PT 1670) AT 67-84 were called in aid. RESOLUTION OF THE PRELIMINARY OBJECTION The Respondent’s preliminary objection is bifurcated. The first branch is on the consequences of non-service of the Notice of Appeal, while the second branch is on the sole ground of appeal being a ground of mixed law and fact, and the Appellants having failed to obtain leave of Court to appeal on the said ground of mixed law and fact.

The parties have referred to the affidavit of non-service deposed to by the bailiff of the lower Court, with the Respondent contending that the attempt at service was not made at the Respondent’s address for service on record.

For the Appellants, the stipulations of Order 6 Rule 26 of the Federal High Court (Civil Procedure) Rules, 2019 was relied upon to the effect that the nature of the process was made known to the Respondent, on account of which the Respondent filed her processes in respect of the appeal. ​First of all, from the processes filed by the Respondent at the lower Court, the address for service of the Respondent’s counsel included the addresses at Igando, Lagos State and Iperin-Agbara, Ogun State. (See pages 2, 6, 21, 50, 64-65 and 67-68 of the Records).

From the affidavit of non-service at page 112 of the Records, the directions requested by the bailiff of the lower Court, were the directions to the Igando, Lagos State address. So it is not correct as contended by the Respondent that the attempt at service was not made at the address for service on record. Be that as it may, the Notice of Appeal which the bailiff of the lower Court attempted to serve is at pages 109-110A of the Records. The Respondent’s address for service thereon (page 110 of the Records) is the Igando, Lagos State address.

Accordingly, the bailiff of the lower Court was justified in attempting to effect service at the Igando, Lagos State address, being the address for service stated in the Notice of Appeal. ​By all odds, the Notice of Appeal is filed at the Registry of the lower Court; but the Respondent is correct in his submission that the Notice of Appeal is the originating process for an appeal. So it is the Rules of procedure of this Court that we would turn to in order to interrogate the consequences of failure to serve the Notice of Appeal.

It is trite law that there is no vested right in any course of procedure, a litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner. In this regard, the rudimentary principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13, OMIRINDE vs. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE vs.

FRN (2014) LPELR (22254) 1 at 14, NWORA vs. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 20. ​The attempt at service of the Notice of Appeal on the Respondent was made on 24th September 2020. The applicable rules of procedure of this Court as at that date was the Court of Appeal Rules, 2016. At the date of hearing of this matter on 25th November 2021, the applicable rules of procedure are the Court of Appeal Rules, 2021 which repealed the Court of Appeal Rules 2016 and which came into force on 1st November 2021.

Since there is no vested interest in the rules of procedure, it is the Court of Appeal Rules, 2021 that is applicable. Happily however, the relevant stipulations whether in the 2016 Rules or the 2021 Rules are the same. Order 2 Rule 1 of the Court of Appeal Rules, 2021, requires that service of the Notice of Appeal be effected on the Respondent personally or by electronic mail to the electronic mail address of the Respondent.

The affidavit of non-service clearly establishes that the Notice of Appeal was not served on the Respondent. Being the originating process for the appeal, the law is settled beyond peradventure that it is fatal where the Notice of Appeal has not been served as the jurisdiction of the appellate Court is as a result not activated. See ADEGBOLA vs. OSIYI (2017) LPELR (42471) 1 at 14-15, HARRY vs. MENAKAYA (2017) LPELR (42363) 1 at 38-39 and ODEY vs. ALAGA (2021) LPELR (53408) 1 at 19-27 and 71-75.

Since the Notice of Appeal was not served, the concomitance is that the first branch of the preliminary objection on non-service of the Notice of Appeal succeeds. The consequence of the non-service of the Notice of Appeal is that the jurisdiction of this Court to entertain the appeal has not been activated. The appeal is therefore incompetent and will have to be struck out for want of jurisdiction: ODEY vs. ALAGA (supra), BUNI vs. OZOBO (2020) LPELR (52282) 1 at 25-40, APC vs. OZOBO (2020) LPELR (52283) 1 at 10-24, NCSU vs. EKASA (2021) LPELR (54752) 1 at 6-7 and ANWAKOBE vs.

ESUMEI (2018) LPELR (47255) 1 at 13-17. Having held that the Court does not have the jurisdiction to entertain the appeal on account of non-service of the originating process, the Notice of Appeal, I ought to end this judgment at that this stage; but being an intermediate appellate Court, I am enjoined by law to consider all the issues raised in the appeal.

Accordingly, I will proceed to consider the second branch of the preliminary objection and thereafter dovetail to the merits of the appeal. ​While the first branch of the preliminary objection deals with the threshold issue of service of the Notice of Appeal, the second branch of the preliminary objection challenges the competence of the Notice of Appeal filed by the Appellants. It is hornbook law that a notice of appeal in the process of an appeal is a very important document, as it forms the foundation of the appeal.

If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on the jurisdiction of the appellate Court. If no proper notice of appeal has been filed, then there is no appeal for the Court to entertain. See OLANREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622 and FIRST BANK vs. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 49. In aliis verbis, a competent notice of appeal is the foundation and substratum of every appeal.

Any defects thereto will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain the appeal: UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 14 and ADELEKAN vs. ECU-LINE N.V. (2006) LPELR (113) 1 at 26-27. ​The Respondent’s contention in this second branch of the objection is that the sole ground of appeal is a ground of mixed law and fact and that the Appellants require leave of Court to appeal on the said ground, which leave they neither sought for nor obtained.

Now, a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party. See IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578, AZAATSE vs. ZEGEOR (1994) 5 NWLR (PT 342) 76 at 83 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464.

The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground. In ascertaining the real issue or complaint, the ground of appeal as formulated and all the particulars thereto are to be read and construed together. See OBATOYINBO vs. OSHATOBA (1996) LPELR (2156) 1 at 33, CHIEF OF STAFF vs. IYEN (2005) 6 NWLR (PT 922) 496, ODUKWE vs. ACHEBE (2008) 1 NWLR (PT 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION vs. ONYEABOR (2011) LPELR (3563) 1 at 31.

The Appellants’ sole ground of appeal reads as follows: “GROUND OF APPEAL The Court below erred in law when it held that the officers of the Respondent were responsible for the death of the brother of the Applicant one [sic] on the 25th of January, 2019 when the Applicant did not place any cogent evidence before the Court in prove of that fact. PARTICULARS OF ERROR 1. The case of the Applicant borders on the alleged breach of the fundamental Right of his deceased brother allegedly tortured and killed by officers of the Respondent on the 25th of January, 2019.

The lower Court failed to address its mind to the fact that the Applicant has the legal burden to place enough material before the Honourable Court in prove of the depositions in the affidavit in support of the application and thereby came to a wrong conclusion that the respondents are responsible for the death of the Applicant’s brother. 2.

The lower Court erred in law when it failed to properly evaluate the evidence brought before it and thereby came to a wrong conclusion. ” ​The crux of the Respondent’s contention is that the above ground is not a ground of law alone but a ground of mixed law and fact and therefore leave of Court was necessary to appeal on the said ground and that having failed to obtain leave of Court, the said ground was incompetent and liable to be struck out. The Appellants contend the contrary, asserting that the ground of appeal is one of law only.

I will first ascertain the character of the ground of appeal, whether one of law or one of mixed law and fact, and thereafter determine, whichever it be, if in the diacritical circumstances of this matter, the Appellants require leave to appeal on the said ground. Now, oftentimes, it is a very thin line that separates a ground of law simpliciter from a ground of mixed law and facts. Happily, the apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or mixed law and fact. In the words of Eso, JSC in OGBECHIE vs.

ONOCHIE (1986) LPELR (2278) 1 at 8: “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact.

The issue of pure fact is easier to determine.” ​Equally, in giving the classification of a ground of appeal in FIRST BANK OF NIGERIA PLC vs. T. S. A.

INDUSTRIES LTD (supra) at 55-56, Adekeye, JSC stated as follows: “The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance – (a) Where the grounds of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law. (b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact. (c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law. (d) Where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact. (e) Where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case. (f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact. (g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law. (h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.” See also OLABOMI vs.

OYEWINLE (2013) LPELR (20969) 1 at 11-12, IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (supra) and UWAK vs. EKPENYONG (supra).

With this marker as the guide, I have closely examined the scarified sole ground of appeal and I am not in any doubt whatsoever that the complaint therein is on the evaluation of the affidavit evidence by the lower Court. Being a complaint on evaluation of evidence, it is a ground of mixed law and facts: FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (supra). However, given the circumstances of this matter, do the Appellants require leave of Court to appeal on the said ground? I think not. The appeal is against the final decision of the lower Court.

Section 241 (1) (a) of the 1999 Constitution (as amended) provides as follows: “241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases – (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance” ​The decision subject of this appeal is the final decision of the Federal High Court, Abeokuta Division, sitting at first instance.

By the constitutional provision, an appeal lies as of right against a final decision at first instance, irrespective of whether the grounds of appeal are of law, mixed law and facts or indeed facts only. See OKOYEKWU vs. OKOYE (2009) 6 NWLR (PT 1137) 350 at 381, OYEWINLE vs. ARAGBIJI OF IRAGBIJI (2012) LPELR (9328) 1 at 28-31 and NUC vs. ALLI (2013) LPELR (21444) 1 at 35-36. Ineluctably, the ground of appeal is competent and leave of Court is not required for the Appellants to appeal on the said ground.

Having considered and dealt with the preliminary objection, I will now proceed to consider the appeal on the merits. I will only state that the manner in which the issues raised in the preliminary objection were resolved would impact on the final order to be made in this appeal, notwithstanding the manner in which the merits of the appeal is resolved.

THE APPEAL The Appellants distilled a sole issue for determination, as follows: “Whether from the evidence before the Court the Applicant proved his case to be entitled to the reliefs sought.” The Respondent equally formulated a sole issue for determination, namely: “Whether the learned trial Judge was correct and rightly condemned the extra-judicial killing and brazen violation of the Respondent Deceased Brother’s right to life by the Appellants.” ​From the sole ground of appeal, the issue crafted by the Appellants is apt and it is on the basis of the said issue that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE FOR DETERMINATION Whether from the evidence before the Court the Applicant proved his case to be entitled to the reliefs sought. SUBMISSIONS OF THE APPELLANTS’ COUNSEL The Appellants submit that there is no convincing and/or credible evidence as required by law to entitle the Respondent to the relief he sought in the application. Sections 131 and 132 of the Evidence Act and the case of ADAKE vs. AKUN (2003) LPELR-72 were referred to on the burden of proof.

It was stated that the burden was on the Respondent to prove his allegation of arrest, torture and extra-judicial killing of his brother; which allegations being criminal in nature were to be proved beyond reasonable doubt as required by Section 135 of the Evidence Act vide APC vs. PDP (2015) 15 NWLR (PT 1481) at 66-67. It was asserted that the burden was on the Respondent to prove the alleged infringement of fundamental rights, which he failed to do by his affidavit evidence. The cases of DIRECTOR OF STATE SECURITY SERVICES vs. IBRAHIM (2016) LPELR-41618 (CA) and ATAKPA vs.

OBETOR (2015) 3 NWLR (PT 1447) 549 were relied upon. It was posited that torture and murder as alleged are criminal offences which ought to be reported to the Police for investigation and that Exhibits B and D attached to the Respondent’s Further Affidavit were not Police Report of Investigation and do not state the cause of death or persons responsible for the death.

It was conclusively submitted that the facts and materials before the Court do not establish the allegations of arrest, torture and extra-judicial killing of the deceased, such that the Respondent was not entitled to the relief he claimed. The case of CPC vs. INEC (2012) 1 NWLR (PT 1280) 106 at 131 was called in aid. SUBMISSIONS OF THE RESPONDENT’S COUNSEL The Respondent contends that the lower Court did a proper analysis of the affidavit and material evidence in arriving at the just determination of the case.

It was opined that the lower Court rightly found that the Appellants approbated and reprobated by first stating that they were not at the area where the incident happened, only for them to again depose that they were in the area to seize foreign rice and had to shoot their way through when they were attacked by hoodlums, while denying that anyone died as a result of the shooting. Paragraphs 3 and 10-16 of the Appellants’ Counter Affidavit were referred to.

It was therefore maintained that the lower Court rightly held at page 102 of the Records that the Appellants were liable for the killing of the deceased. It was further submitted that the burden is on the person who has deprived another citizen of his life to show that the killing was justified or excused by law vide IGP vs. IKPILA (2016) NWLR [no volume stated] (PT 1517) 236 at 286-287.

The lower Court, it was contended, rightly held at page 104 of the Records that the affidavit evidence did not show that the killing of the deceased was in execution of an order of Court and that it was therefore illegal, unlawful and a violation of Section 33 (1) of the 1999 Constitution (as amended). ​It was argued that in deserving cases of abuse of fundamental rights, the attitude of the Courts is to award exemplary damages and that at page 107 of the Records, the lower Court followed the binding pronouncements of this Court in arriving at the amount it awarded as damages.

The case of IGP vs. IKPILA (supra) at 298 was cited in support. It was conclusively submitted that the reasoning and findings of the lower Court were not perverse and that the Appellants have not shown any cogent reason why this Court should interfere with the said findings and reasoning. APPELLANTS’ REPLY ON LAW The Appellants in their Reply Brief doubled down on their submissions that the Respondent did not prove the alleged arrest, torture and extra-judicial killing beyond reasonable doubt.

The necessary elements for arrest, torture, extra-judicial killing, murder, unlawful homicide, manslaughter and how to prove them were set out in support of the contention that the allegations made by the Respondent were not proved beyond reasonable doubt. Section 36 (5) and (12) of the 1999 Constitution as amended, Section 4 of the Administration of Criminal Justice Act, Sections 315 to 325 of the Criminal Code of Ogun State and the cases of AFUAPE vs. THE STATE (2020) 17 NWLR (PT 1754) at 381-424 and OLADIPO vs.

THE STATE (2020) 7 NWLR (PT 1723) at 238-258 were relied upon. ​RESOLUTION OF THE APPEAL The Appellants in paragraph 4.0 on page 3 of their Reply Brief rightly submitted that the decision of the lower Court did not turn on the allegations of arrest and torture. This being so, the fine legal points made by the Appellants on elements of arrest and torture are otiose. I restate that the conspectus of the complaint in the ground of appeal is on the evaluation of evidence and ascription of probative value thereto by the lower Court.

Even though the lower Court awarded the sum of N40 million as damages in favour of the Respondent, the Appellants have not challenged the award in any manner whatsoever in this appeal. So the very narrow prism in which this appeal has been ventilated is on evaluation of evidence. That is the Appellants’ grouse with the decision of the lower Court and that is what we are to resolve in this appeal, and nothing more.

Therefore, the proper course to follow in resolving this matter will be to examine the evaluation of evidence by the lower Court relative to the ratio decidendi in the case. ​The decision of the lower Court primarily turned on issue number four which it distilled at page 94 of the Records, namely:“…Whether the killing of the applicant’s sister [brother] is illegal and/or constitutional having regards to Sections 33, 34, and 36 and [sic] of Constitution of Federal Republic of Nigeria 1999 (as amended)” In resolving this issue, the lower Court found and held as follows at pages 104-105 of the Records: “From the affidavits evidence before the Court there was no evidence to show that the killing of the Applicant’s sister [brother] by the Respondents was in execution of the order of Court in Nigerian. [sic] What was in evidence was that … when the Respondent’s officers fired shot and the bullet subsequently hit and killed her [him].

This being the case therefore, I agree with the submission of the learned Counsel for the Applicant that the killing … by the officers of the Respondents at Owode on 25th January, 2019 was illegal and unlawful as it was done in flagrant violation of Section 33 (1) of the Constitution of Federal Republic of Nigeria 1999 as amended I and [sic] so hold.

This issue is also resolved in favour of the Applicant against the Respondents.” ​Having so resolved this issue in favour of the Respondent, the lower Court held that compensation ought to be paid for the illegal and unlawful act that resulted in the violation of the right to life.

It then made an award at page 108 of the Records as follows: “I am of the considered view that the sum of N40m will be adequate damages for breach of the right to her [his] life.” It is translucent that the decision of the lower Court and the award made was not for arrest and torture, but solely for the violation of the constitutional right to life enshrined in Section 33 (1) of the Constitution.

This is what the lower Court stated at page 104 of the Records: “Be that as it may, it has been the constant and unambiguous provision in our past and present constitutions that every Nigerian has a right to life and no one shall be deprived of his life save in execution of the sentence of a Court of law in respect of a criminal offence of which the person has been found guilty in Nigeria.

See Section 33 (6) of the Constitution of Federal Republic of Nigeria 1999 (as amended).” ​The paramount consideration in the resolution of this appeal is whether the lower Court was correct in its finding and decision that the affidavit evidence established that the killing of Olabode Sunday was not in execution of the order of any Court in Nigeria and that it was illegal, unlawful and in flagrant violation of Section 33 (1) of the 1999 Constitution as amended. The action at the lower Court was for the enforcement of fundamental rights.

It was not a criminal prosecution for murder or manslaughter. This remains so, irrespective of the fact that the action which resulted in the infringement of the fundamental right was the killing of the Respondent’s brother. The Appellants are dogged in their contention that since the facts on which the application for enforcement of fundamental rights are founded amount to criminal offences, that the Respondent did not prove the allegations beyond reasonable doubt. I am not enthralled by this contention.

I do not think that the fact that the allegations have some criminal connotation would change the character and complexion of the case from one for the enforcement of fundamental rights, in order to require the Respondent to meet the criminal standard of proof beyond reasonable doubt. See OMONYAHUY vs. IGP (2015) LPELR (25581) 1 at 70 and 77 and NPF vs. OMOTOSHO (2018) LPELR (45778) 1 at 43-44. This Court, per Tsammani, JCA eloquently captured the legal position in the following words in the case of ADEKUNLE vs.

A-G OGUN STATE (2014) LPELR (22569) 1 at 23-24: “This matter was initiated under the Fundamental Rights (Enforcement Procedures) Rules, 1979. It is not in doubt that, the Fundamental Rights (Enforcement Procedure) Rules have been made as a special procedure for the speedy enforcement of the fundamental rights of the citizens. In other words, an action under the Fundamental Rights (Enforcement Procedure) Rules is a peculiar action.

It is a kind of action which may be considered as sui generis i.e. it is a claim in a class of its own, though with a closer affinity to a civil action than a criminal action. The remedy available by this procedure is to enforce the Constitutional Rights available to citizens which has been contravened by another or others. Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights, may have some criminal connotation, but will not raise the allegations of breach of fundamental rights to the level or pedestal of a criminal allegation.

I am therefore of the view that, to raise the standard of proof in an action for the enforcement of fundamental rights to that required in a criminal allegation, merely because the facts giving rise to the breach or contravention have semblance of criminal acts, will defeat the purpose of Section 46 (1) of the 1999 Constitution of Nigeria, which seeks a simple, easy to attain and thus effective judicial process for the enforcement of fundamental rights available to citizens under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.” See also COMMISSIONER OF POLICE, EKITI STATE vs.

AREGBESOLA (2020) LPELR (50177) 1 at 29-31. ​Having established that the legal position is that the standard of proof in an action for the enforcement of fundamental rights is not the criminal standard of proof beyond reasonable doubt, we shall now advert to the affidavit evidence which the lower Court held that it established the flagrant violation of the constitutional right to life under Section 33 (1) of the 1999 Constitution as amended. Actions for the enforcement of fundamental rights are governed by the procedure under the Fundamental Rights (Enforcement Procedure) Rules.

It requires the use of affidavits for the speedy dispensation of fundamental rights actions. The actions are determined on the affidavit evidence of the parties, which affidavit evidence is properly evaluated by the Court to ascertain if the applicant had discharged the burden of proving that the fundamental rights were indeed eviscerated. See JACK vs. UNIV OF AGRIC, MAKURDI (2004) LPELR (1587) 1 at 13-14, ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536, MBANG vs. JANET (2014) LPELR (22656) 1 at 27 and GEORGEWILL vs.

LAMBERT ELECTROMEC LTD (2021) LPELR (54469) 1 at 27-28. ​In the prolegomenon, I redacted the case of the parties as made out in their respective affidavits. From the facts as made out, there is no dispute about the Appellants having fired shots at the Owode Area of Ogun State when they went for an operation. The only areas of disagreement and the core of the question to be resolved was whether death occurred consequent upon the shooting and whether the Appellants were at the scene on 21st January 2019 as opposed to 25th January 2019 asserted by the Respondent.

For the Appellants, no one died as a result of the shots they fired into the air to disperse the hoodlums that attacked them; while the Respondent’s case is that the deceased Olabode Sunday was shot dead.

Section 33 (1) of the 1999 Constitution which enacts the constitutional right to life provides: “Every person has a right to life, and no one shall be deprived intentionally of his life save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria.” The lower Court held that this fundamental right was infringed as there is no evidence to show that the killing of the deceased Olabode Sunday was in execution of the order of Court in Nigeria and that the evidence was that the deceased Olabode Sunday was killed by a bullet from the shots fired by the Appellants’ officers (see page 104 of the Records). ​Let me reiterate that the main area of disagreement is on the presence of the Appellants’ officers at Owode on 25th January, 2019 when the deceased was killed as opposed to 21st January 2019 when they concede that they were at Owode Area, shot in the air, but no one was killed.

The Appellants challenge the reliance by the lower Court on Exhibits B and D of the Respondent’s Further Affidavit, contending that the said Exhibits were not Police Investigation Report and do not state the cause of death and persons responsible for the death. ​With due deference to learned counsel for the Appellants, the lower Court rightly utilised Exhibits B and D to resolve the main areas of disagreement as to when the incident happened, whether 21st January 2019 or 25th January 2019; and whether any persons died.

The lower Court consequently held that the 1st Appellant’s officers were actually at Owode Area on 25th January 2019 and that all accusing fingers point to the Appellants’ officers as the violators of the right to life. (See pages 102 and 103 of the Records).

Now, Exhibit B is the letter from the Divisional Police Officer in charge of Owode Police Division and it confirms that there was an incident of extra-judicial killing of five (5) persons in the Owode Area of Ogun State by Customs Officers attached to Idiroko Border on 25th January 2019 and that it was already subject of investigation by the State Criminal Intelligence and Investigation Department (SCIID) Abeokuta. So it establishes that the incident was on 25th January 2019. (See page 34 of the Records).

On the other hand, Exhibit D is a letter from State Hospital Ota (see page 39 of the Records); and it acknowledges that five corpses were brought in dead on 25th January 2019, allegedly killed by Customs Officers and deposited at the Hospital by policemen from Owode Police Division. So Exhibit D affords evidence on record that some persons died as a result of the incident, contrary to the Appellants’ contention that nobody died.

So the integral evaluation of the affidavit evidence and Exhibits B and D establish that it was on 25th January 2019 that the Appellants’ officers fired the shots at the Owode Area and that some persons died from the shots that were fired. ​The Appellants’ complaint against the decision of the lower Court is that the lower Court failed to properly evaluate the evidence before it and thereby came to a wrong conclusion as there was no evidence before it that the Respondent proved his case.

In simple terms, evaluation of evidence is the assessment of facts by the Court to ascertain which of the parties to a case has more preponderant evidence. The lower Court in entering judgment for the Respondent held that the Respondent had more preponderant evidence. The Appellants are hankering after the setting aside of the said decision based on their contention that the lower Court failed to properly evaluate the evidence and thereby came to a wrong decision. The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court.

Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court.

An appellate Court is loath to interfere with the findings of facts made by the trial Court except, inter alia, where there is insufficient evidence to sustain the judgment; or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence; or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs.

OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46 47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320, FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48, TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18. I have insightfully gone through the evidence on record and I am not in any doubt whatsoever that the lower Court justifiably appraised the facts and unquestionably evaluated the evidence.

The findings arrived at flow from the accepted evidence and they are not perverse. There is no basis for an appellate Court to interfere since it is not the business of an appellate Court to embark on a fresh appraisal of the evidence when the trial Court has unquestionably evaluated and appraised the evidence. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47.

I am satisfied that the lower Court unquestionably evaluated the evidence, justifiably appraised the facts and came to the correct conclusion on the evidence. In conflation, the sole issue for determination is resolved against the Appellants. The appeal is devoid of merit. Accordingly, the appeal fails and is deserving of dismissal.

However, given the manner in which the preliminary objection on the service of the Notice of Appeal was resolved, the proper order to make since the jurisdiction of the Court to entertain the appeal was not activated will be an order striking out the appeal for want of jurisdiction: ODEY vs. ALAGA (supra). The appeal is accordingly struck out with costs of N200,000.00 in favour of the Respondent.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft, a copy of the lead judgment of my Learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered. ​This appeal is related to appeal NO- CA/IB/344/2020. The facts and the cause of action are the same. My Lord has adequately dealt with the issues in this appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal is incompetent and should be struck out.

I will also emphasise that the Notice of Appeal is the Originating Process and spinal cord of an appeal and that the failure to serve the Respondent with the Notice of Appeal is a fundamental defect which affects the jurisdiction of this Court to entertain the appeal. Order 2 Rule 1 of the Court of Appeal Rules 2021 requires that service of the Notice of Appeal be effected on the Respondent personally or by electronic mail to the electronic mail address of the Respondent.

In this appeal, it was shown beyond reasonable doubt that the Notice of Appeal was not served on the Respondent. The consequence of this is that the jurisdiction of this Court is not activated. The non-service of the Notice of Appeal on the Respondent has rendered the appeal incompetent and liable to be struck out. See – ODEY VS ALAGA & OTHERS (2021) LPELR-53408 (SC). – AKINLOYE VS ADELAKUN (2000) 5 NWLR PART 657 PAGE 530. – SKEN CONSULT NIG. LTD VS UKEY (1981) 1 S. C.

PAGE 6. – NBN LTD VS GUTHRIE (NIG) LTD (1993) 3 NWLR PART 1195 PAGE 48. ​Consequent upon the foregoing and in view of the detailed reasons contained in the lead judgment, I am also of the view that this appeal deserves to be struck out and it is hereby struck out. I abide by the order as to cost made in the lead judgment.

ABBA BELLO MOHAMMED, J.C.A.: I had read in draft, the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with his reasoning and conclusions both in relation to the Respondent’s preliminary objection and in respect of the substantive appeal.

On the first prong of the Respondent’s preliminary objection challenging the competence of the appeal, which is predicated on non-service of the Notice of Appeal, it is trite that a Notice of Appeal is the originating process that initiates an appeal: OKARIKA & ORS v SAMUEL & ANOR (2013) LPELR-19935(SC), per Ogunbiyi, JSC at page 31, para. C; and DANIEL v INEC (2015) LPELR-24566(SC), per Rhodes-Vivour, JSC at pages 32-33, para.

E. ​Order 2 Rule 1 of both the 2016 and 2021 Court of Appeal Rules, mandates that Notice of Appeal must be served personally or by electronic mail to the electronic mail address of the Respondent(s). In the instant appeal, the record shows that service of the Notice of Appeal was only attempted by the Bailiff at the Respondent’s address for service on record, but was not effected as required by the said Rules.

Being an originating process, Notice of Appeal must be served personally on the Respondent(s), unless otherwise ordered by the Court or exempted by law: IHEDIOHA & ANOR v OKOROCHA & ORS (2015) LPELR-40837(SC), per Okoro, JSC at page 31, para. A. It is the proper service of the Notice of Appeal that activates the jurisdiction of the Court. It is therefore, a pre-condition to the competence of the Court to determine the appeal: ADERIBIGBE & ANOR v ABIDOYE (2009) LPELR-140(SC), per Oguntade, JSC at pages 28–29, para. D; and DUWIN PHARMACEUTICAL & CHEMICAL CO.

LTD v ESAPHARMA SRL ITALY & ANOR (2017) LPELR-42695(CA), per Nimpar, JCA at pages 19–21, para. E. In the instant appeal, the non-service of the Notice of Appeal on the Respondent has rendered the appeal incompetent and has not activated the jurisdiction of this Court to entertain the appeal.

I so hold. ​As for the second prong of the Respondent’s preliminary objection which attacks the sole ground of appeal and the competence of the Notice of Appeal, the essential contention of the Respondent is that the sole ground of appeal is one of mixed law and fact which requires leave of Court to maintain, and no leave of Court was sought by the Appellants before same was filed. Observably however, this appeal is against the final judgment of the Federal High Court, Abeokuta Division.

By the express provision of Section 241 (1) (a) of the 1999 Constitution, appeals to the Court of Appeal from final decisions of the Federal High Court or a High Court sitting at first instance do not require leave of Court, whether such appeal is grounded on law, on fact or mixed law and fact. See: AULT & WIBORG (NIG) LTD v NIBEL INDUSTRIES LTD (2010) LPELR-639(SC), per Fabiyi, JSC at pages 15–18, para. D; and DANKWAMBO v ABUBAKAR & ORS (2015) LPELR-25716(SC), per Peter-Odili, JSC at pages 61–62, para. E.

Being an appeal against the final judgment of the Federal High Court, Abeokuta Division delivered on 16th July, 2020, the appeal is as of right. No leave is therefore required for the sole ground of appeal to be competent. It is for the above reasons which are more elaborately stated in the lead judgment, that I also uphold the first ground of the Preliminary objection over non-service of the Notice of Appeal and hold that the appeal is incompetent and deserves to be struck out for want of jurisdiction.

In the event that this appeal deserves a merited consideration, the essential issue is notably whether the Respondent had proved his case to be entitled to the reliefs granted by the trial Court. Having carefully gone through the Record of Appeal, especially the affidavit evidence led before the trial Court and the trial Court’s evaluation and findings which it made thereon, I am at one with the reasoning and conclusions of my learned brother Ogakwu, JCA, that the trial Court had properly evaluated the evidence led before it.

This being the case, an appellate Court which this Court is, will not interfere with the evaluation so carried out by the trial Court even if it would have evaluated such evidence differently: OBUEKE & ORS v NNAMCHI & ORS (2012) LPELR-7810(SC), per Peter-Odili, JSC at page 25, para. B. ​In consequence, I also find this appeal devoid of merit, deserving of a dismissal.

However, since the preliminary objection of the Respondent over non-service of the Notice of Appeal has been upheld, I join my learned brother, Ogakwu, JCA in holding that the appeal is incompetent in the first place and this Court lacks the jurisdiction to entertain same. Accordingly, I hereby strike out the appeal for want of jurisdiction. I abide by the consequential order as to cost contained in the lead judgment.

Judgment

MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Leading Judgment): Being dissatisfied with the decision by the Court of Appeal, Kaduna Division, (Court below) to dismiss their appeal before it, in a judgment delivered on 16th January, 2015, the Appellants brought this further appeal on nine (9) grounds vide the Notice and Grounds of Appeal dated 27th February, 2015, but filed on 3rd March, 2015 and deemed on 9th October, 2017 (as shown at pages 546-553 of the Record of Appeal received in the Court on the 7th of April, 2015).

In line with the requirement in Order 6, Rule 5 of the Rules of the Court, learned counsel for the parties filed briefs of argument in support to their respective positions as follows:- 1. Appellants’ Brief filed on 13th November, 2017 deemed on the 9th October, 2017. 2. 1st Respondent’s Brief filed on 22nd November, 2017 along with Notice of Preliminary Objection on the competence of the appeal. 3. Appellants’ Reply Brief was filed on the 15th December, 2017.

​The Briefs of Argument were adopted at the hearing of the appeal on the 17th January, 2022 by learned SAN, Mr. Kehinde Ogunwumiju for the Appellants, who also filed a list of Additional Authorities on that day, and Mr. S. J. Gani, Esq. for the 1st Respondent, Mr. O. Gbadeyan, Esq. who appeared for the 2nd-4th Respondents, informed the Court that he did not file a Brief of Argument in the appeal.

In the Appellant Brief, settled by A. T. Kehinde, SAN, five (5) issues are set out for determination at page 5, as follows:- “3.1 Whether the lower Court was justified in holding that the Tribunal gave judgment on the 20th April, 1999 after being satisfied that there had been due compliance with the order for substituted service of processes and following the application of the Claimant/Applicant’s counsel?

Grounds 5, 8&9. 3.2 Whether a party who is not aware of a proceeding against him/her in a Court or Tribunal could be bound by the Judgment or ruling of that Court or Tribunal under any law, rule of law or practice. Ground 4. 3.3 Whether the facts of the case of AREWA PAPER CONVERTERS LTD v. N.D.I.C. (2006) 7 S.C.N.J 457 are on all fours with the facts of the instant case to justify the blanket application of the judgment of the Supreme Court in that case in the instant case?

Grounds 6 & 7. 3.4 Whether the lone judgment of the lower Court delivered in chambers does not amount to a nullity in law? Grounds 1 & 2. 3.5 Whether the 16/1/2015, tile date the lone judgment was delivered in this suit can be said to be a juridical date in view of the Judicial State Union of Nigeria strike as at that date? Ground 3. ”

For the 1st Respondent, the preliminary objection was argued at pages 3-8 of the 1st Respondent Brief, challenging the jurisdiction of the Court to adjudicate over the appeal on the ground that it is incompetent.

At paragraph 4.01 on page 9 of the Brief, the following three (3) issues are said to call for determination in the appeal:- “ISSUE NO. 1 Whether considering the facts of the case of Arewa Paper Conveters v. N.D.I.C (2006) 7 SCNJ 457 and the Failed bank (Recovery debts and Financial Malpractices in Banks) Decree 1994 as amended the lower Court was justified when it applied the ratio in the case of Arewa Paper Converters V.

N.D.I.C. and held that the appellants were served with the Court processes and therefore bound by the judgment of the Tribunal-Issues 1, 2 and 3 of the appellants’. (Grounds 4, 5, 6 ,7, 8 & 9) ISSUE NO. 2 Whether in the circumstances of this case the judgment of the lower Court delivered in chambers is a nullity. (Grounds 1 and 2). ISSUE NO. 3 Whether the judgment of the lower Court delivered on 16/1/2015 when the Judiciary Staff Union of Nigeria was on strike as a nullity. (Ground 3). ”

Due to the known fundamental and crucial nature of the issue or question touching on the jurisdiction of a Court, generally, to adjudicate over a case or matter, and the appellate Courts, to entertain and adjudicate over appeals, which is said to be both intrinsic in and extrinsic to judicial proceedings, the law prescribes that whenever it arises or is raised in the course of such proceedings (as all stages or steps of the judicial ladder), the Court before which it arises or is raised has the duty and obligation to consider and determine it first before proceeding with other issues or taking further steps in the case/appeal, if necessary.

See Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNL 296, Kotoye v. Saraki (1993) 5 NWLR (pt. 296) 710, Odofin v. Agu (1992) 3 NWLR (pt. 729) 350, Bakare v. A.G. Federation (1990) 5 NWLR (pt. 152) 516, NDIC v. CBN (2002) 7 NWLR (pt. 766) 271, Kalio v. Daniel-Kalio (1975) 2 SC, Salati v. Shehu (1986) 1 NWLR (pt. 15) 198.

An objection questioning or challenging the competence of an action/matter or appeal, as the case may be, goes to also attack or question the judicial power and authority of the Court, ie. the requisite jurisdiction or vires in law, of the Court, to adjudicate over the action/matter or appeal, on the merit, and so seeks to terminate it in limine. For that reason, it is prudent to first deal with and make a pronouncement on it before further steps are taken (if necessary) in the action/matter or appeal. In the case of Efet v. INEC (2011) 7 NWLR (pt. 1247) 423 the law was restated by I.T.

Muhammad, JSC (now CJN) that:- “It is trite law that where a Notice of Preliminary Objection is filed and moved before a Court of law, the Court is duty bound to consider the Preliminary Objection before venturing into the main appeal or cross-appeal, as the case may be. See AGBAREH & ANR v. MIMRA & ORS (2008) 1 SCNJ 24;  ONYEMEH & ORS. v. EGUCHUSAM & ORS (1996) 4 SCNJ 235.” See in addition, A.G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt. 618) 187, NWLR (pt. 77) 157, Odu v. Agbor-Hemeson (2003) 1 NWLR (pt. 802) 624, GBARABE v. REG.

T.M.C.N. (2009) LPELR-8378, All States Trust Bank v. King Davidson Ent. Ltd. (2000) 12 N WLR (pt. 680) 298,Uba v. Yawe (2000) 8 NWLR (pt. 670) 739, Abiola v. Olawoye (2006) 13 N WLR (pt. 996) 1, wherein the position of the law was repeatedly stated.

I intend to, bowing to the established and recognized position of the law demonstrated above, consider the objection raised by the 1st Respondent to the competence of the appeal and jurisdiction of the Court to adjudicate on it, as contained on the Notice of Preliminary Objection mentioned earlier.

The grounds of the objection set out on the Notice of Preliminary Objection are that:- “1. There is no competent appeal as the matter was not commenced by due process of the law before the Federal High Court. 2. The two lower Courts have no power to entertain this matter as Courts of competent jurisdiction. 3. By Section 2 of the Tribunals (certain consequential Amendments e.t.c.) Decree No. 62 of 1999 ​ the Federal High Court has no jurisdiction to entertain the matter. 4. The judgment of the Tribunal before the commencement of the Decree is preserved. 5.

The law does not give the lower Court the jurisdiction to entertain an appeal against the judgment of the failed banks Tribunal. 6. The appellants/applicants’ late father was supposed to appeal to the special appeal Tribunal within 21 days and he failed to do. 7. The judgment of the Federal High Court was given without jurisdiction, 8. This Court in Arewa Paper v. N.D.I.C (2006) 7 SCNJ 457 at 477 line 5 to 12 held that the Federal High Court lacked jurisdiction to entertain the matter to support any appeal.”

In arguing the objection at pages 3-8 of the 1st Respondent’s Brief, learned counsel, relying on the case of Petrojessica Ent. Ltd. v. Leventis Tech. Co. Ltd. (1992) I NWLR (pt. 244) 675 at 693, per Belgore, JSC, (Former CJN), submitted that the law is settled that the issue of jurisdiction of a Court can be raised at any time and at any stage of the proceedings of a case, in writing or even verbally, either by the parties or the Court suo motu.

He said that the right of appeal is either constitutional or statutory and that an appellate Court has no jurisdiction to hear any appeal unless it was vested by the Constitution or statute, on the authority of Ehuwa v. Ondo State (2006) 12 SCJN, 259 at 267. Learned counsel sets out Section 240 of the Constitution on the jurisdiction of the Court below and contends that the Failed Banks Tribunal (the Tribunal) is not one of the Courts listed therein for that Court to have jurisdictions of the Tribunal. Still relying on Ehuwa v.