Banking

Before Their Lordships

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Between

AND

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Before Their Lordships:

ANDREWS OTUTU OBASEKI,JUSTICE, SUPREME COURT

ADOLPHUS GODWIN KARIBI-WHYTE,JUSTICE, SUPREME COURT

SAIDU KAWU JUSTICE, SUPREME COURT

SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT

Between

HIGHGRADE MARITIME SERVICES LTD Appellant

And

FIRST BANK OF NIGERIA LTD Respondent

FACT

On 10th of August, 1983 the respondent opened a current account with the appellant with a sum of N400.00. On 11th August, 1983 the respondent deposited a -First Bank of Nigeria cheque Ikeja Branch for the sum of N1,568,946.35 into its current account at the appellant’s Airport Branch Port Harcourt. The cheque was said to have been drawn by Parkinson Nigeria Limited on the Ikeja Branch of the First Bank of Nigeria limited. The respondent’s account was credited with that amount the same day but as it is usual in banking practice, the respondent’s account was debited with the same amount because the amount was very heavy. The cheque was then sent to Ikeja for collection. This was to ascertain whether the cheque was a genuine cheque or not. The response from Ikeja that payment had been effected was sent in an unusual way of a mere paper transaction, whereas the usual practice whenever an amount was over N2,000.00 was that the message conveying payment would be by coded telegram. Because of the unusual manner in which the Ikeja Branch advised payment, the appellant suspected fraud and they sent a telegram to the Ikeja Branch for confirmation whether Exhibits 12 and 12A which conveyed that the cheque had been cleared originated from them. They also sent a letter and Ikeja Branch replied by Exhibit 13 on October 12, 1983 that Exhibits 12 and 12A were not from them and that the signature on them was forged.

The appellant also wrote to verify whether Parkinson Nigeria Limited, the company alleged to have been the drawer of the cheque had an account with the Ikeja Branch of the First Bank of Nigeria Limited, the Ikeja Branch replied by Exhibit 14 that there was no such account.

After these enquiries when Benedict Ume, who testified as the Managing Director of the respondent came with a cheque to withdraw N63,000.00 from the account, the appellant invited the Police and he was arrested. At the time of his arrest he had N19.50 to his credit having earlier withdrawn N80.00 on the 16th August, 1983.

At the Trial Court, the Appellant claimed the total sum of N1,568,966.35 (One million, five hundred and sixty-eight thousand, nine hundred and sixty-six naira, thirty-five kobo) against the Respondent, being money had and received by the respondent to the use of the defendant at Port Harcourt in the course of the respondent’s business as a banker and in respect of the appellant’s Current Account No.02025984 with the defendant’s branch at Aba Road, Port Harcourt, common or popularly known as the Airport Branch.

The appellant has closed the said account with the respondent and demanded the aforesaid sum of money being the balance standing to the appellant’s credit in the said account.

The respondent failed and refused to comply with the appellant’s demand aforesaid. The appellant then filed the suit and claimed to have damage and claims against the respondent for said debt or liquidated sum of N1,568,966.35 (One million, five hundred and sixty-eight thousand, nine hundred and sixty-six naira, thirty-five kobo) being money had and received by the respondent to the use of the appellant

The respondent denied the appellant’s claim. Pleadings were ordered, filed and exchanged and issues joined on material facts. At the end of the hearing of the case, the learned trial Judge, Fiberesima, J., delivered a reserved judgment in which he concluded –

“From the evidence before me and particularly from the conscious admissions by the defence of receiving the cheque and proceeds and of exhausting the cheque and of having the exhausted cheque in its custody, I hold that as between the plaintiff and its bankers the amount is recoverable by the plaintiff as money paid by plaintiff. Accordingly there must be judgment for the plaintiff for the amount claimed.

The defendant, aggrieved by the judgment, appealed against it to the Court of Appeal, Enugu Division. In a unanimous judgment of that court delivered by Kolawole, JC A., it allowed the appeal and concluded –

ISSUE:

Whether the Court of Appeal was right in its conclusion from the evidence adduced at the trial, that the appellant failed to prove that the Port Harcourt Branch of the respondent had collected the proceeds of a cheque for N1,568,946.35 from its Ikeja Branch for crediting to the appellant’s account at its Port Harcourt Branch situate along Aba Road

HELD:

This appeal on the whole lacks merit. It fails and is accordingly dismissed. The judgment and consequential orders of the Court of Appeal are hereby affirmed. N100.00 costs is awarded to the respondent in this appeal against the appellant.

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The defendant appealed, and won. The plaintiff lost in the appeal because the evidence on record did not support the findings of fact made by the learned trial Judge.

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The evidence on record only supported the finding that the appellant deposited a First Bank of Nigeria cheque drawn on Ikeja Branch of the First Bank of Nigeria Ltd. at Port Harcourt.

The finding that the defendant received the proceeds and exhausted the cheque is not borne out by the evidence. The contrary is supported by the evidence.

The Court of Appeal was therefore justified in reviewing the facts and reversing the findings of fact. Where findings of fact are not supported by the evidence, a Court of Appeal has the duty and the power to interfere and in reversing the findings make the proper findings of fact justified by the evidence. See:

Fatoyimbo v. Williams (1956) 1 FSC 87 SCNLR 274

Chief Frank Ebba v. Ogodo (1984) 1 SCNLR 372

Okafor v. Idigo (1984) 1 SCNLR 481

Watt or Thomas v. Thomas (1947) AC 484, 487, 488

Akinola & Anor. v. Oluwo & Ors. (1962) 1 ALL NLR 224

Iguoriguo & Ors. v. Akpor (1978) NSCC (Vol.19 (Pt. 1) 1115

Okpiri & Ors. v. Jonah & Ors. (1961) 1 SCNLR 174

Agbonifo v. Aiwerioba & Anor. (1988) 1 NWLR (Pt.70) 325

Ekpoke v. Usilo (1978) 6-7 S.C. 187.”

The appellant only had N20.00 left in its account which it opened with cash deposit of N100.00.

A cheque in strict sense, is an order or request for payment. Until the cheque is honoured or cleared and the amount stated on it paid, it is not money.

When the appellant proved that the cheque was deposited, it should have proceeded to prove that the amount stated in the cheque was paid to and received by the respondent. The respondent having joined issue on this point with the appellant, the burden of proof is on the appellant and it failed woefully to discharge the burden. This is more so as there is evidence that the drawer of the cheque is unknown to and has no account with the Ikeja Branch of the First Bank of Nigeria Ltd.

It was for the above reasons and the reason lucidly set out in the Reasons for Judgment delivered by my learned brother, Wali, J.S.C, that I dismissed the appeal on 22nd October, 1990.

A.G.KARIBI-WHYTE, J.S.C.: After arguments of counsel in this appeal on the 22nd October, 1990 and having already read the records of appeal and the briefs of argument adopted in argument, I summarily dismissed the appeal on the ground that it completely lacked any merits.

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I have read the judgment of my learned brother, Wali, JSC in this appeal. I agree entirely with his reasoning. The facts of the case so very clearly and comprehensively stated in Wali, JSC’s judgment, I entirely adopt for the purposes of my judgment.

Learned counsel to the Appellant has filed five grounds of appeal. It is somewhat surprising that eight issues for determination were formulated from the five grounds of appeal. This is to say the least an undesirable prolixity in the light of the real issue for determination involved in the grounds of Appeal. This court has constantly counselled and warned counsel to refrain from prolixity in the formulation of issues for determination. The principle has always been and still is that an issue should he formulated as encompassing a number of grounds of appeal. It is undesirable to split a ground of appeal into more than one issue; thereby rendering the issues wider than the grounds of appeal complained of.

In my opinion the only issue before us, as was in the Courts below, is whether the plaintiff failed to prove that the Aba Road Branch, Port Harcourt of the respondent Bank had collected the proceeds of a cheque from the Ikeja Branch of the Bank and credited appellant’s account at its Aba Road Branch, Port Harcourt. More tersely formulated, it is:

“Whether the Court below was right in holding on the evidence before it at the trial that Appellant failed to prove that the Aba Road Branch, Port Harcourt of the respondent Bank having collected the proceeds of a cheque for N1,568,946.35 from its Aba Road Branch, Port Harcourt, had failed to refund the money to the appellant.”

This covers the formulation of the many issues by learned counsel to appellant. I will confine myself to this main issue.

Before discussing the issue I advert to ground 5 relating to the finding of fraud. These are issues 6 and 7 as formulated by appellant. I agree with the reasoning and conclusion of my learned brother, Wali, J.S.C. on the allegation of fraud made by the respondent. I agree entirely that the submission of learned counsel to the appellants that respondent did not specifically plead fraud and the court below could not have found fraud established is clearly misconceived. It is clear from paragraphs 7, 8, 13 and 16 of the Statement of Defence, that these are averments raising very strong inference of fraud. The particulars are sufficient to lead appellant and from which he should have understood the case of the defendants to meet. – See U.A.C. v. Taylor 2 W.A. C. A. 67. I think the facts averred are sufficient to raise allegation of fraud. I have already referred to the main issue in this Appeal. The issue consists of complaints against the reversal by the Court below of findings of fact of the trial court, and the subsequent finding by the Court below that appellant failed to prove his case and therefore did not deserve to have judgment in his favour.

The argument was directed essentially at the right of the Court below, an appellate court, to reverse and set aside, findings of fact of the trial court. It was submitted that there was no legally admissible evidence upon which the court below could have acted. This was founded on the fact that Exhibits 12 and 12A having been made by respondents should be construed in favour of the appellants. Learned Counsel referred to the cheque, which was unaccounted for, and the subject- matter of the action and submitted that the onus of proof that it is not genuine is on the respondent. Learned counsel invited the court to invoke the provision of section 148(d) of the Evidence Act against the respondent.

Continuing his submission learned counsel to the Appellant contended that Exhibits 13 and 14 were suspect. He submitted that Exhibit 13 was a fabrication and Exhibit 14 was made after the commencement of the Court proceedings by the appellant, as a desperate effort to avoid liability.

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Learned counsel to the appellant referred to the evidence and submitted that respondent had received the controversial cheque and credited the account of the appellant. The cheque having not been dishonoured, respondent had no right to debit the account of the Appellant already credited with the proceeds. Learned counsel commented on Exhibits 12 and 12A and submitted that they are documents of evidential value and inadmissible. He submitted that the Court of Appeal was wrong to have relied on such evidence.

Learned Counsel to the respondent in his submission argued that Exhibits 12 and 12A were admissible and that the learned trial Judge relied heavily on them. He pointed out that they were given in evidence to expose the attempt to defraud by the appellant. Learned Counsel explained the practice of crediting the account on receipt of a cheque and subsequently debiting the same account pending clearance is normal banking practice. Evidence was called to show that Exhibits 12 and 12A were not genuine. The admission of Exhibits 12 and 12A in the trial Court was not challenged.

I shall consider here the submission by Appellant that Exhibits 13 and 14 were made by persons interested and in anticipation of proceedings, and therefore inadmissible in evidence. I cannot with justification agree with this submission. It is not disputed that Exhibits 13 and 14 were made by D.W.2 as a servant of the respondent. It was admitted it was written in the ordinary course of duty. It is in the course of an inquiry by the respondent bank to ascertain the authenticity of Exhibits 12 and 12A, before it could honour Exhibit 7, namely, the Appellant’s cheque, now subject-matter of dispute. This, in my opinion, does not make D.W.2 or the Official or servant maker of the document, a person interested in the proceedings as provided in Section .90(3) of the Evidence Act.

Section 90(3) Act provides as follows: –

“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.”

It seems to me the provision excludes documents made in anticipation of litigation by a “person not personally interested” in the results of the litigation. Thus the general principle is that the document made by a party to a litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible Barkway v. South Wales Transport Co. Ltd. (1949) 1

K. B. 54. The disqualifying interest is a personal not merely interest in an offilcial capacity. – See Bearmans Ltd. v. Metropolitan Police District Receiver (196 1) 1 NLR 634. Where however the interest of the maker is purely official or as a servant without a direct interest of a personal nature, there are decided cases that the document is not thereby excluded. – See Evan v. Noble (1949) 1 K. B.222. See The Atlantic and The Battyk (1946) 62, T.L. R.461. Re Powe, powe v. Barclays Bank Ltd. (1956) P.110; Gaiter v. Gaiter (1955) 1 W.L.R.400.

The nature of the disqualifying interest will depend upon the nature of duty undertaken by the servant. Where from the nature of the duty he can be relied upon to speak the truth, and that he will not be adversely affected thereby, the document has always been admitted in evidence. This is because the rationale of the provision is that he must be “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, independent. ”

Of course, before there will exist a disqualifying interest, or a person will be regarded as “a person interested” there must exist a real likelihood of bias. Hence where an official is discharging a ministerial duty which does not involve any personal opinion, the question of bias will not be in issue. Such document will be admissible under Section 90(3) of the Evidence Act.

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The facts in this case have not disclosed that any of the witnesses for the respondents had a personal interest in the result of the litigation. The Court below was therefore right to have admitted and acted on Exhibits 13 and 14.

The onus of proof at the end of the case is on the appellant to prove on the balance of probabilities, that-

(i) the cheque he paid into his account at the Aba Road Branch, Port Harcourt of the Respondent Bank was a genuine cheque issued by Parkinson Nigeria Ltd.

(ii) that Parkinson Nigeria Ltd. had sufficient funds with the respondent Bank at lkeja, to cover the cheque so issued.

It is only from such admissible evidence that the court can find for the appellant. In this case respondent did not only give admissible evidence of an attempt by the appellant to defraud it of the amount claimed, but had gone further to show that Parkinson Nigeria Ltd., whose cheque appellant relies upon for funds to credit the account at the Aba Road Branch, Port Harcourt, of the Respondent Bank, had no such account. Appellant has failed to prove that he paid any money into the account at Aba Road, Port Harcourt.

In the circumstances, it is not conceivable that there could be any legal duty on the Respondent to honour Exhibit 7. I do not think the facts of this case require calling in aid the presumption under section 148(d) of the Evidence Act.

It is clear that the learned trial Judge had failed to properly consider the evidence before him and therefore came to the wrong conclusions. – See Okolo v. Uzoka (1978) 4 S.C.77; Ebba v. Ogodo (1984) 4 S.C.84; [1984] 1 SCNLR 372.

In the circumstances, the Court of Appeal is perfectly justified to reconsider and re-evaluate the whole evidence which the learned trial Judge had failed to do and arrive at a just decision on the evidence before it. – See Abinabina v. Enyimadu 12 WACA 171; 1953 A.C.207. The above was why I affirmed the decision of the Court of Appeal that the judgment of the trial Judge be set aside in its entirety.

Appellant shall pay costs assessed at N500 to the respondent.

S.KAWU, J.S.C.: I had the advantage of reading, in draft, Reasons for Judgment’ just delivered by my learned brother, Wali, JSC, I entirely agree with the reasons and will respectfully adopt them as my reasons for dismissing the appeal on the 22nd October, 1990. 1 too will award costs assessed at N500 in favour of the respondent.

S.M.A.BELGORE,J.S.C.: The respondent in paragraphs 8,13 and 16 of the Statement of Defence clearly indicated the presence of fraud; that is to say, that the cheque (which finally got lost in the bank branches) was not genuine, and that the drawee, Parkinson Ltd. was a fake. The appellant therefore knew all along about the case the defence confronted him with at the trial court. U.A. C. Co. Ltd. v. Taylor 2 WACA 67.

Above all, the appellant had no sufficient fund in the account to meet the amount on the spurious cheque.

It is clear on the evidence before the trial court that the appellant attempted to defraud but the vigilance at the bank (respondent) made this impossible. The appellant has exhibited extraordinary courage in going to court on a claim tainted with dishonesty ab initio. No court will ever grant such a prayer.

It is for the foregoing reasons and the fuller reasons in the reasons advanced by my learned brother, Wali, JSC, which I adopt as mine, that I, on 22nd October, 1990, dismissed this appeal.

Counsel:

Chief Chuks Muoma for the Appellant.

A. N. Anyamene, SAN (with him, E.C. Obutte (Mrs.), ) for the Respondent.

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

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

MOHAMMED LAWAL GARBA, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Lagos Division of the Court of Appeal (lower Court) delivered on the 25th November, 2015 in favour of the 1st Respondent who was the Appellant therein.

Briefly, the facts which led to the appeal before the lower Court are that the Appellant had sued the Respondents before the Lagos State High Court (trial Court) vide a writ of summons dated 11th May, 2000 and claimed the following reliefs: “1. A Declaration that the plaintiff is the owner of and entitled to the various sums of money totaling N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Account No. 201-01874-2 with the 1st Defendant between 24th November and 2nd December 1998 on the inducements of the 1st Defendant. 2.

A Declaration that the failure, refusal and or neglect by the 1st Defendant to refund or pay back the said sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) to the plaintiff amounts to unlawful conversion of or an improper dealing with the plaintiff’s fund and a breach of trust as well as a breach of contract. 3.

A Declaration that the purported transfer by the 1st Defendant of the plaintiff’s N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Current Account No. 201-01874-2 on the inducement of the 1st Defendant to Allied Internal Ltd, if true is improper, irregular, wrongful, null and void. 4.

AN ORDER setting aside the purported transfer of the Plaintiff’s funds being N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) kept in the 2nd Defendant’s Current No. 201-01874-2 to Allied International Ltd, on the purported mandate of the 2nd Defendant’s Managing Director Alhaji Yunusa. 5.

AN ORDER directing the 1st Defendant to refund and pay back to the plaintiff the sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) which the 1st Defendant induced the plaintiff to pay into the 2nd Defendant’s Current Account No. 210-01874-2 to be held in trust for purpose of transfer to the Plaintiff’s Account No. 201-019366 when finally established, the sum with interest at 21% per annum, being the current bank rate from 3rd December, 1998 until date of judgment and thereafter till final payment.

Alternatively The sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) against the 1st Defendant being monthly had and received by the 1st Defendant for purposes of opening a Current Account for the Plaintiff, which purpose has failed, with interest at 21% per annum from 3rd December, 1998 until final judgment and thereafter until final payment. 6.

N10 million being damages for deceit and fraudulent representations and or misstatements, improper inducements and unlawful deprivation of the use of legitimate funds further to which the plaintiff may suffer damage.”

The claims were denied by the Respondents in their respective Statements of Defence and at the end of trial, judgment was entered in favour of the Appellant on the 30th May, 2008 by the trial Court.

​Aggrieved, the 1st Respondent appealed against that judgment to the lower Court, which, as stated above, allowed the appeal on the ground that the originating processes, i.e; the writ of summons and the Statement or Claim were both signed in the name of a Law Firm and not by the Legal Practitioner known to law and so incompetent.

The appeal was brought vide the Notice of Appeal dated the 3rd December, 2015 on seven (7) grounds and in the Appellant Brief filed on the 17th March, 2016, six (6) issues are set out for determination as follows:- “i. Whether the lower Court was right by striking out the appellant’s preliminary objection to the competence of the appeal as well as the jurisdiction of the Court to entertain the same and assuming jurisdiction over the matter. This relates to grounds one of the grounds of appeal. ii.

Whether the lower Court was right and did not act in excess of its jurisdiction when it held that the suit was not initiated in accordance with or by the due process of law and as such the suit was incompetent ab initio thereby rendering the judgment delivered by the Court on 30th May 2008 null and void. This issue is relative to grounds 2 & 3. iii. Whether the lower Court was right when it failed to distinguish the case from the cases of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317 and FBN, Plc v.

Maiwada ​(2013) 5 NWLR (pt. 1348) 444 as well as apply the principle in Ogundele v. Agiri (2009) 18 NWLR (pt. 1173) 219 and hold that the signature ‘J. O. Esezoobo’ makes it an exception to the cases. This is relative to ground 4. iv. Whether the lower Court was right and did not violate the appellant’s fundamental right to a fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, when it held that ground one of the 1st Respondent’s Further Amended Notice of Appeal dated 17th October 2012 was competent and required no leave of the Court to validate it.

Relative to ground 5. v. Whether the lower Court properly came to the conclusion that “the Appellant’s complaint (in ground two) flows from the decision of the lower Court wherein the Court decided in favour of the 1st Respondent that the transfer of the money in contention was wrong” and consequently holding the appeal competent. Relative to ground 6. vi.

Whether the lower Court was right and did not violate Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, by failing to hear the case within a reasonable time until seven (7) years from 2008 to 2015 such as renders the judgment of the lower Court a nullity. This is relative to ground 7 of the Notice of appeal.”

Three (3) issues are said to arise from the grounds of the appeal for decision by the Court, in the Amended 1st Respondent’s Brief filed on the 10th September 2021, they are in the following terms:- “(i) Whether the lower Court was right when it held that the Appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner?” (Grounds 2, 3 and 4). (ii) Whether the lower Court was right when it struck out the Appellant’s preliminary objection dated 24 March, 2014?” (Grounds 1, 5 and 6). (iii) Whether the length of the proceedings as the lower Court amount to a breach of the Appellant’s fundamental right to fair hearing?” (Ground 7).”

There is no record that the 2nd Respondent, who was duly served with all the material processes in the appeal, filed a brief of argument or any other process for the prosecution of the appeal. The 2nd Respondent was also not represented at the oral hearing of the appeal on the 12th October, 2021 when the learned counsel for the Appellant and 1st Respondent adopted their respective briefs. The Appellant also filed the Appellant’s Reply Brief on 26th September, 2018.

As stated above, the lower Court allowed the appeal by the 1st Respondent on the sole ground that the originating processes were incompetent for being signed in the name of a Law Firm and not a legal practitioner. The suit was struck out for incompetence and want of jurisdiction on the part of the trial Court to entertain and adjudicate over it. The crucial issue which requires determination first, is whether the lower Court is right in law in that decision.

Although, the appellant also challenges the competence of the 1st Respondent’s Notice of Appeal in the lower Court, in the absence of or without the requisite jurisdiction on the part of the trial Court, if it turns out, to entertain and conduct proceedings in the Appellant’s suit initially, then the issue or question of an appeal; competent or incompetent, against the outcome of the purported proceedings conducted in the suit, would not arise. This Court, per M. D. Muhammad, JSC, in the recent case of NNPC v.

Roven Shipping Ltd. (2019) NWLR (pt. 1676) 67 at 92, restated the law that:- “A decision arrived at a Court without jurisdiction, being null and void, can never be the basis of a competent appeal or further litigation.” His lordship referred to and relied on the decisions in Fadiora v. Gbadebo (1978) 3 SC, 219 and Bamishebi v. Faloye (1987) 2 NWLR (pt. 54) 51.

The very intrinsic and extrinsic nature of the issue of jurisdiction in judicial proceedings of a Court of law and the fatal consequence on the part of a Court to entertain an action, are of considerable antiquity to be elementary in our judicial jurisprudence now. Madukolu v. Nkemdilim (1962) 1 All NLR, 587, (1962) 2 SCNLR 341 is the decision often referred to and relied on for the fundamental and crucial nature of the issue of jurisdiction in judicial proceedings of a Court of law and, named by many, as the “Locus classicus” on the issue.

The law is also firmly established that it is never too late in the course of the proceedings of all Courts in a matter, at all stages of the judicial ladder, for any of the parties or the Courts to raise the issue of jurisdiction, in any form, and that once raised or it arises, it should be decided first before further steps are taken on other issues in the matter in order to avoid an exercise in futility. See Madukolu v. Nkemdilim (supra), Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, (1983) 1 SCNLR, 1172, U.D. U.S. v. Kraus Thoumpson Org.

Ltd. (2001) 15 NWLR (pt. 376) 305, Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 46, Bankole v. Dada (2003) 11 NWLR (pt. 830) 174, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272.

The Appellant’s arguments on the issue, which is argued under the Appellant’s issues two and three at pages 7 – 14 of the Appellant’s Brief, are to the effect that the person who signed page 2 of the Record of Appeal is identifiable by the name written on it and not in doubt and that the lower Court was wrong to have relied on the decisions in Okafor v. Nweke (2007) 10 NWLR (pt. 1252) 317 and FBN, Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444 to hold that the Appellant’s suit was not initiated by due process of the law to deprive the trial Court of the jurisdiction to entertain it.

Learned counsel pointed out and maintains that J. O. Esezobo who signed page 2 of that Record of appeal and all other processes, is different and clear from J. Odion Esezobo & Co. written thereunder and so the facts in the aforenamed decisions are distinguishable from the facts in the Appellant’s case. He argues that where the signature is the name of counsel, as in the Appellant’s case, it cannot be ascribed to a law firm since it is not a mere mark or contraption that is not identifiable. Dankwambo v. Abubakar (2016) 2 NWLR (pt. 1495) 157 at 180/184, 187 and 194/196 was referred to.

It is his further argument that with the signature “J.O. Esezobo” being clearly the name of the person who signed, the identity of the person who appended the signature was no longer in doubt, citing Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486 at 498 - 499 and 505 - 507 on the difference between “shall sign” and “shall endorse” in respect of processes of Court provided for in the Rules of the trial Court. Learned Counsel urged the Court to resolve the issue in favour of the Appellant.

The 1st Respondent’s arguments on the issue are that the law is settled that only a legal practitioner entitled to practice law under the Legal Practitioners Act (LPA) can sign processes to be filed in Court and that a process signed in the name of law firm is incompetent. Reliance was placed on Peak Merchant Bank Ltd. v. NDIC (2011) 12 NWLR (pt. 1261) 253 at 201 – 202, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317, the facts of which are said to be similar to the Respondents’ case, FBN v. Maiwada (supra), Framphino Pharm. V. Jawa Int.

Ltd. (2013) 5 NWLR (pt. 1348) 444 and SPDC Ltd. v. Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (pt. 1514) 318. Learned counsel referred to Order 17 Rule 4 of the Trial Court Rules and contends that the arguments of the Appellant do not appreciate the purport of the decisions in SLB Consortium Ltd. v. NNPC and Okafor v. Nweke (both supra) in which, contrary to the arguments, do not create “exceptions and borderline cases” but restated the law that an originating process signed in the name of a law firm, is incompetent. He maintains that the Appellant’s writ and Statement of Claim issued by “J.

Odion Esezobo & Co.” did not come before the trial Court initiated by due process of law and upon fulfilment of a condition precedent to the exercise of jurisdiction and so incompetent. That a party cannot condone or waive lack of jurisdiction on the part of a Court to entertain and action, on the authority of Ugo v. Okafor (1996) 3 NWLR (pt. 438) 542 and Ijebu-Ode Local Government v. Adedeji (1991) 1 NWLR (pt. 166) 136, Adeyemi v. Opeyori (1976) 9 – 10 SC, 31 at 49, 51 – 52 and Kasikwu Farms Ltd. v. A. G. Bendel State (1986) 1 NWLR (pt. 19) 693 at 703 – 704.

In the Appellant’s Reply Brief, it is maintained that the facts in FBN, Plc v. Maiwada (supra) are not similar to the Appellant’s case.

RESOLUTION: The law is now firmly settled beyond arguments, and the learned counsel for the parties acknowledge and agree, that an originating Court process employed or used for the invocation of a Court’s jurisdiction over an action or matter which was signed in the name of a Law Firm is incurably incompetent and incapable of igniting or invoking the requisite jurisdiction of the Court to entertain the action or matter for being in contravention or breach of the provisions of Sections 2 (1) and 24 of the LPA and Rules of Courts. ​This is the position established, stated and restated in the decisions in Okafor v.

Nweke, SLB Consortium v. NNPC and FBN, Plc v. Maiwada (all supra) and the underlining principle decided by this Court in these cases is that once a Court process is signed in the name of Law Firm and the person whose signature was appended cannot be identified to be a legal practitioner entitled to practice law by virtue of the provisions of Sections 2 (1) and 24 of the LPA, then such a process is incurable incompetent.

The import of the decisions is that non-compliance with the provisions of Sections 2(1) and 24 of the LPA, as a matter of substantive law, affects and deprives a Court of the jurisdiction to entertain and adjudicate over such a Court process, as an initiating process, which is therefore liable to be struck out. Madukolu v. Nkemdilim (supra), Ebhodagbe v. Omokhafe (2004) 12 SCNJ, 106, Obi v. INEC (2007) 7 SC, 268.

​The question whether a Court process filed in Court was signed in the name of an identifiable person or in the name of a law firm is and can easily be determined by a physical view, close look and consideration of the process itself by the Court.

​The Court processes in this appeal are the writ of summons at pages 1 – 3 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which appear thus:- “ … “

Even a casual and passing glance at these processes would clearly show, beyond reasonable argument, that each was signed with a signature above, for and on the name of “J. Odion Esezobo & Co.” indicated to be counsel plaintiff. It is plain that the signature does not reveal, signify or identify, precisely, the name of the person who appended the signature or signed for the law firm, said to be the counsel to the plaintiff on any of the processes. The signature itself does not portray the name of the person who inscribed it for the purpose of accurate identification and proper authentication.

“Signature” is defined in the 9th Edition of the Black’s Law Dictionary, page 1507, to mean, among others:- “1. A person’s name or mark written by that person or at the person’s direction. “the signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of this signer.” The word “sign” is also defined on the same page, to mean, inter alia:- “To identify (a record) by means of a signature, mark, or other symbols with the intent to authenticate it as an act or agreement of the person identifying it.” See also Onward Ent.

Ltd. v. Olam Int. Ltd. (2010) All FWLR (pt. 531) 1503 at 1512.

In SLB Consortium Ltd. v. NNPC, (supra) this Court, per Rhodes-Vivour, JSC underscored the importance of the way counsel chooses to sign a Court process and how all processes to be filed in Court shall be signed by Counsel. His Lordship explained that:-

“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.” This position was restated by the Learned Law lord in the case of Nigerian Army v.

Samuel (2013) 14 NWLR (pt. 1375) 446 at 485 to settle the appropriate manner, way or mode for proper and valid signing of all Court processes by Counsel representing parties recognised by the law. Any Court process not signed by a legal practitioner representing a party as specifically stated and in the specified manner, is not a Court process signed in accordance with or recognised by law since it will not be a process signed by an identifiable person who could be attributed the competence to sign same.

The undeniable fact in the case of the Appellant in this appeal is that both the writ of summons at page 2 and the statement of claim at pages 4 – 11 of vol. 2 of the Record of Appeal, which clearly and expressly, though mutedly, speak for themselves, are signed by way of a contraption as a signature, over, for and in the name of the law firm of “J. Odion Esezobo & Co.” The contraption or signature is not/does not represent the name of any identifiable person.

In his brief of argument, the learned counsel for the appellant has strenuously contended that the signature is the name of counsel for the plaintiff and it is not just a contraption. However, an objective look at the signature shows not even a semblance of a specific and identifiable name, which by the prescription of the Court in SLB Consortium Ltd. v. NNPC and Nigerian Army v. Samuel (above, supra) is required to be “clearly written” in addition to any contraption which may be inscribed or appended as a signature of counsel to the processes.

On the two (2) processes, only a signature appears and was inscribed without any name specifically, distinctly and clearly written so as to identify the person who made the contraption of the signature thereon. The signature was inscribed or appended, as a contraption, over or on top of the name of the Law Firm of “J. Odion Esezobo & Co.” clearly indicating and showing that they were both signed on behalf of and in the name of the said law firm, as counsel for the plaintiff. In the words of Mukhtar, JSC (later CJN) in SLB Consortium Ltd v.

NNPC (supra):- “It is instructive to note here that the requirement for the name of the Legal Practitioner to be given, is necessary and important. The emphasis here is on the name together with the signature.” Rhodes-Viviour, JSC, concluded that:- “A signature without the name is incurably bad. ” In the foregoing premises, the facts of the appellant’s case on the competence of the initiating processes filed at the trial Court are substantially similar, even the same, as those considered and decided upon by this Court in the cases of Okafor v. Nweke, SLB Consortium Ltd. v. NNPC and FBN, Plc v.

Maiwada referred to and relied on by the lower Court to hold that the said processes for being signed in the name of Law Firm, are incurably bad and incompetent and the action for not being initiated in line with due process of the law, was incompetent and liable to be struck out.

Perhaps, I should state that since the two (2) processes in the Appellant’s case have been demonstrated to have been signed in the name of a law firm and not by a Legal Practitioner known to law, the issue of the provisions of the trial Court’s Rules as to who has the duty to issue and “sign” or “endorse” a writ of summons is non-sequitur in the determination of the competence of the processes in question. The case of Hamzat v. Sanni (supra) therefore becomes irrelevant in the circumstances. I resolve the issue in favour of the 1st Respondent and against the Appellant.

​The resolution of the issue has effectively and completely subsumed the other issues raised in the appeal since in the absence of the requisite jurisdiction to entertain and conduct valid proceedings on the part of the trial Court, no competent issue could arise for consideration out of the action.

In the final result, the incompetent initiating processes are hereby struck out and the appeal dismissed. Parties shall bear their respective costs of prosecuting the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Mohammed Lawal Garba JSC and to underscore the support I have in the reasoning from which the decision came about, I shall make some comments.

On the 12th October, 2021 date of hearing, learned counsel for the appellant, Johnson Esezoobo, Esq. adopted the brief of argument filed on 17/3/2016 and the Reply brief filed on 26/7/2016. He distilled six (6) issues for determination as follows:- i. Whether the lower Court was right by striking out the appellant’s preliminary objection to the competence of the appeal as well as the jurisdiction of the Court to entertain the same and assuming jurisdiction over the matter. This relates to ground one of the grounds of appeal. ii.

Whether the lower Court was right and did not act in excess of its jurisdiction when it held that the suit was not initiated in accordance with or by the due process of law and as such the suit was incompetent ab initio thereby rendering the judgment delivered by the Court on 30th May 2008 null and void. This issue is relative to grounds 2 & 3. iii. Whether the lower Court was right when it failed to distinguish the case from the cases of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, SLB, PLC Consortium Ltd V NNPC (2011) 9 NWLR (PT. 1252) 317 and FBN, PLC V.

Maiwada (2013) 5 NWLR (PT. 1348) 444 as well as apply the principle in Ogundele v Agiri (2009) 18 NWLR (PT. 1173) 219 and hold that the signature J.O. Esezoobo’ makes it an exception to the cases. This is relative to ground 4. iv. Whether the lower Court was right and did not violate the appellant’s fundamental right to a fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, ​when it held that ground one of the 1st Respondent’s further Amended Notice of Appeal dated 17th October 2012 was competent and required no leave of the Court to validate it.

Relative to ground 5. v. Whether the lower Court properly came to the conclusion that “the Appellant’s complaint (in ground two) flows from the decision of the lower Court wherein the Court decided in favour of the 1st Respondent that the transfer of the money in contention was wrong” and consequently holding the appeal incompetent. Relative to ground 6. vi.

Whether the lower Court was right and did not violate Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, by failing to hear the case within a reasonable time until seven (7) years from 2008 to 2015 such as renders the judgment of the lower Court a nullity (Ground 7 of the Notice of Appeal).

Learned counsel for the 1st respondent, Davidson Oturu adopted the brief of argument filed on 10/9/2021 and deemed filed on 12/10/2021 and in it distilled three issues for determination Viz: i. Whether the lower Court was right when it held that the Appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner” (Grounds 2, 3 and 4). ii. Whether the lower Court was right when it struck out the Appellant’s preliminary objection dated 24th March, 2014.” (Ground 1, 5 and 6) iii.

Whether the length of the proceedings at the lower Court amount to a breach of the Appellant’s fundamental right to fair hearing? Ground 7

I shall make use of Issue 1 of the respondent in the determination of this appeal.

ISSUE 1 Whether the lower Court was right when it held that appellant’s action at the lower Court was incompetent ab initio having been initiated by a Writ of Summons and Statement of Claim which were not signed by a legal practitioner. Learned counsel for the appellant contended that the issue of the non signing of the originating process was not raised at the trial Court and so comes to no issue here and now. He cited SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt. 1252) 317 etc.

That ascribing a signature as clear as J.O. Esezoobo over ‘J. ODION ESEZOOBO & Co to the law firm rather than the person whose name was clear on the face of the process is taking the law beyond what was decided in earlier cases of this Court. He cited Dankwambo v Abubakar (2016) 2 NWLR (pt. 1495) 157 at 179-208.

In response, learned counsel for the 1st respondent submitted that there is no name as “J. Odion Esezoobo & Co” on the Roll of legal practitioners in Nigeria. That where a Court lacks jurisdiction or competence to entertain an action, the parties to the suit cannot by acquiescence, waive or even by agreement confer jurisdiction or competence upon the Court. He cited Ugo v Okafor (1996) 3 NWLR (pt. 438) 542; Ijebu-Ode LG v Adedeji (1991) 1 NWLR (pt. 166) 136 etc.

It is a well settled principle of law that a Court process must be signed either by the party or by a Legal Practitioner whose name is on the Roll of Legal practitioners. The rational for this legal position was expatiated in the case of Peak Merchant Bank Limited v.

Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 at 261-261 as follows:- “I am of the firm view that any person signing processes on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of registered legal practitioners. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in Court on behalf of principal partners in the chambers.”

In the case at hand the Appellant’s Writ of Summons and Statement of Claim dated May 11, 2000 will be found at pp. 1 to 11 of the Record. On pp. 3 and 11 respectively of the Record, which are the concluding parts of the Writ of Summons and Statement of Claim, the following endorsements will be found: “J. Odion Esezoobo & Co Counsel to the Plaintiff 5 Destiny Chambers 105, Ikorodu Road Fadeyi Lagos State” Apart from the name of the law firm, the endorsements do not carry the name of any person entitled to practice law in Nigeria.

Order 17, R4 of the High Court of Lagos State (Civil Procedure) Rules 1994 (which were the applicable rules at the time this action was commenced at the lower Court) provides as follows: “…Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.” The question that arises is whether “J. Odion Esezoobo & Co” is a legal practitioner within the meaning of Order 17, Rule 4? The answer is clearly in the negative.

Section 24 of the Legal Practitioners Act, Chapter L. 11 Laws of the Federation of Nigeria, 2004 (formerly S.24 of the Legal Practitioners Act, Cap 207, L.F.N., 1990 defines a legal practitioner as meaning: “…a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings.” Furthermore, Section 2(1) of the Legal Practitioners Act also provides that: “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”.

The facts of this case are similar to the facts in SLB Consortium Ltd. V. N.N.P.C. (2011) 9 NWLR (Pt. 1252 317. There, the originating processes filed at the High Court were signed in the name of the law firm representing the Appellant. At the Supreme Court, the Respondent for the first time on appeal raised a jurisdictional objection on this ground and argued that the originating processes were therefore incompetent. The Supreme Court agreed with the Respondent. At pages 335 to 336 of the Report, Fabiyi JSC stated as follows: “Briefs of argument were filed on behalf of the parties.

The respondent observed that the originating summons filed by the appellant in respect of the proceedings at the trial Federal High Court were signed by a law firm instead of a qualified legal Practitioner as required by the rules and practice of the Federal High Court and contrary to the decision in the case of Okafor v. Nweke (2007) 3 SC (Pt. 11) 55 at 62-2-63, (2007) 10 NWLR (Pt. 1043) 521. A notice of preliminary objection dated 25th May 2009 to the hearing of the appeal was filed.

The complaint is that since the originating summons was signed by “Adewale Adesokan & Co” as the plaintiff’s legal practitioner, it is incompetent. There is no gainsaying the fact that vide Order 26 Rule 4 (3) of the Federal High Court Rules 2000 processes shall be signed by a legal practitioner or a party if he sues or defends in person. In reality, “Adewale Adesokan & Co” which signed the originating summons is not a legal practitioner known to the applicable Legal Practitioners Act, CAP 207 of the Laws of the Federation of Nigeria 1990.

This is so since it is not a person entitled to practice as a barrister and solicitor with its name on the roll. Refer to the case Okafor v. Nweke & Ors (supra) … It is not in doubt that the signature of “Adewale Adesokan & Co” on the originating summons of the appellant robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice law as a Barrister and Solicitor of this Court… In the prevailing circumstance, all the proceedings which rested on the inchoate originating summons are deemed not to have a place in law.

One cannot put something on nothing and expect it to stand. This is as stated decades ago in UAC v. Macfoy (1962) AC 152 at 160. It is also desirable to state it here that this Court in the case of Madukolu v. Nkedilim (1962) 2 NSCC, 374 at 379-380, (1962) SCNLR 341 maintained that a Court is competent when, inter alia, ‘the case comes up before the Court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction’.

It has been established that the originating summons signed by a law firm of ‘Adewale Adesokan & Co’ was not initiated by due process. As same is incompetent, this appeal rests on nothing. This appeal must be, and it is hereby struck out as the preliminary objection is sustained.” At pp. 337 to 338 of the law report, Rhodes-Vivour JSC made the same point in the following words: “This suit highlights the painful realities that confronts a litigation when counsel fails to sign processes stipulated by law.

The appellant as plaintiff sued the respondent in the Federal High Court for breach of contract and won. He was awarded $19,840,467 as damages, and that was in 2001. The respondent appealed. The Court of Appeal found the judgment of the trial Court correct and sent back the case for a hearing on damages. After hearing, the Court reduced the sum and awarded damages in the sum of $7,155,053. On appeal, the Court of Appeal found that the trial Court had no jurisdiction to hear the case. It ordered that the case being simple contract should be heard by the State High Court.

Dissatisfied, the appellant lodged an appeal before this Court. The respondent filed a preliminary objection. The objection being that the originating processes (i.e in the trial Court) was not properly signed by learned counsel for the appellant (plaintiff). Okafor & Ors v. Nweke & 4 Ors (2007), this Court said the same thing Okafor (supra) says. See Reg. Trustees of Apostolic Church of Lagos v. R. Akindele (1967) NMLR p.263. What then is so important about the way counsel chooses to sign process?

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 contraction. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the legal firm. In this case, the originating summons was signed but there was no name of counsel.

The position is that there must be strict compliance with the law, clearly spelt out in Reg. Trustees of Apostolic Church of Lagos v. Akindele (supra) and Okafor v. Nweke (supra). In this case, there is a signature of counsel but no name of counsel. A signature without a name is incurably bad.” In the light of the above decisions, it is clear that there is no name as “J. Odion Esezoobo & Co” on the Roll of legal practitioners in Nigeria. Therefore that process signed in the name of “J. Odion Esezoobo & Co” is incompetent.

The entire proceedings at the trial Court to the judgment are incompetent. Just as Lord Denning stated in Macfoy v. UAC (1961) 3 All ER 1169 at p. 1172; “You cannot put something on nothing and expect it to stay there. It will collapse.” The appellant veered off course in the arguments in paragraphs 4.13 to 4.23 and 8.11 to 8:15 of the appellant’s Brief and the distinctions which the Appellant seeks to make between the decisions of the Supreme Court in SLB Consortium Ltd. V. N.N.P.C (supra), Okafor v.

Nweke (2007) 10 NWLR (Pt. 1043) 521 and other decisions on the point, it is clear that the Appellant’s counsel had failed to appreciate the purport of the decisions. Contrary to the arguments in the said paragraphs, the SLB decision and in fact, none of the decisions of the Supreme Court on the point create “exceptions and borderline cases”. The law is not opaque in mystery that where an originating process is signed in the name of a law firm, the process is incompetent.

Of note is with specific reference to the Appellant’s arguments in paragraphs 8.11 to 8.15 of the Appellant’s Brief, the 1st Respondent was not in a position to waive the Appellant’s incompetent Writ Summons. The originating process is fundamentally defective and legally non-existent and the action is dead at the point of filing. The Appellant’s Writ of Summons and statement of Claim issued by “J. Odion Esezoobo & Co” did not come before the Court initiated by due process of law and the trial Court had no jurisdiction to adjudicate on these incompetent processes.

​It is trite that where a Court lacks jurisdiction or competence to entertain an action, the parties to the suit cannot by acquiescence, waiver or even agreement confer jurisdiction or competence upon the Court. A party cannot waive in a situation where clearly the Court lacks jurisdiction to entertain a matter. See Ugo v. Okafor (1996) 3 NWLR (Pt. 438) 542 and Ijebu-Ode L.G. v. Adedeji (1991) 1 NWLR (Pt. 166) 135.

In any event, the issue of the propriety of signing of Court processes by a law firm had been put beyond any doubt recently by the Supreme Court in First Bank of Nigeria Plc v. Maiwada and Framphino Pharmaceutical v. Jawa International Limited (2013) 5 NWLR (Pt. 1348) 444. In this case, the full Court of the Supreme Court assisted by over 11 amici curiae took another look at the issue. In the lead judgment, Justice J.A. Fabiyi, JSC held at pages 487 to 488 of the Report as follows:

“I wish to repeat that we are interpreting a law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law in signing Court processes. It is my view that if the decision in Okafor v. Nweke is revisited as argued, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law and I cannot trace the issue to the domain of public policy.

The convenience of counsel should have no pre- eminence over the dictate of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this Court in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession.” ​Musdapher, CJN – “The purported appeals filed before the Court of Appeal were incompetent and were properly struck out by the Court of Appeal”. Also in SPDC Ltd v.

Sam Royal Hotel (Nig) Ltd (2016) 8 NWLR 318, the Supreme Court held thus:- “There is now a veritable body of authorities of this Court on the effect of signing a process in the name of a law firm, not being a person whose name appears on the roll of legal practitioners and authorized to practice law in Nigeria by virtue of Section 2(1) and 24 of the Legal Practitioners Act, Cap. L.11, Laws of the Federation of Nigeria (LFN) 2004. Some of the authorities are as follows: N.N.B. Plc v. Denclag Ltd. (2005) 4 NWLR (Pt. 915) 549 at 582; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v.

Adewunmi (2010) 2-3 SC (Pt. 1) 140, (2010) 8 NWLR (Pt. 1195) 63; F.B.N Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 488 A-D; SLB Consortium Ltd v. N.N.P.C (2011) 9 NWLR (Pt. 1252) 317. It therefore behoves any legal practitioner practicing before the Courts in Nigeria to fully acquaint himself with the law and the precedents set by this apex Court.

It has been said time and again that in upholding the sanctity of Sections 2(1) and 24 of the Legal Practitioners Act, this Court being a public policy Court, has a responsibility to ensure that standards of legal practice are maintained.” It is now well settled in law that it is the Claimant’s case that vests jurisdiction on the Court. A valid Writ of Summons is sine qua non to the assumption of the requisite jurisdiction by a Court to entertain or adjudicate over a matter commenced by that process. I refer to Adeyemi v. Opeyori (1976) 9-10 SC 31 at 49, 51-52; and Kasikwu Farms Limited v.

A.G of Bendel State (1986) 1 NWLR (Pt. 19) 695 at 703-704. The Court will not look at a defendant’s processes to determine whether it has jurisdiction. I posit that the onus is on the Appellant (as Claimant at the lower Court) to ensure that its action at the lower Court was originated by due process of law. That duty has never been that of the defendant. See: Madukolu v. Nkemdilim (1962) All NLR (Pt. 11) 581.

It is clear that this appeal is a non starter, the writ of summons and statement of claim being the originating process having not been signed by a legal practitioner as known in the Roll of Legal Practitioners is invalid or incompetent hence this appeal being a continuum from that originating process cannot be validated as the jurisdiction of the Court had been ousted with the jurisdiction of the trial Court non-existent on account of that incompetence. The Court below followed that above principle and I see nothing upon which I can depart from that. See First Bank of Nigeria Plc v.

Maiwada and Framphino Pharmaceutical v. Java International Limited (2013) 5 NWLR (pt. 1348) 444; SPDC Ltd v. Sam Royal Hotel (Nig) Ltd (supra); Hamzat v. Sani (2015) 5 NWLR (pt. 1453) 486. The appeal in my view from the foregoing has no merit and I dismiss it. I also strike out the suit in the Court of trial. Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Mohammed Lawal Garba, JSC, just delivered. I agree entirely with the reasoning and conclusion reached therein and adopt same as my own.

The provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria, 2004, are clear and unequivocal and must be given their ordinary meaning.

Section 2(1) 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.” Section 24 defines a “legal practitioner” to be “a person entitled, in accordance with the provision of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular proceeding.” (Emphasis mine) It was held in Okafor vs Nweke (2007) 10 NWLR (Pt. 1043) 521 @ 531 C – D, that the combined effect of these provisions is that, for a person to be qualified to practice as a legal practitioner, he must have his name on the roll otherwise he cannot engage in any form of legal practice in Nigeria.

In that case, as in the present one, there was a signature above the inscription J.H.C. Okolo, SAN & Co, a law firm. The person who appended his signature thereto purported to have signed the process on behalf of J.H.C. Okolo, SAN & Co. This Court, per Onnoghen, JSC (as he then was) held thus at pages 531 – 532 G -A: “…it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. Okolo, SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C.

Okolo, SAN & Co. is not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo, SAN & Co. cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th December 2005, notice of cross appeal and appellants’ brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo, SAN & Co. are incompetent in law, particularly as the said firm of J.H.C. Okolo, SAN & Co. is not a registered legal practitioner.” The instant case is on all fours with Okafor Vs Nweke (supra).

A signature, which cannot be deciphered, appears above the inscription “J. Odion Esezobo & Co.” at the foot of the Writ of Summons and Statement of Claim at pages 3 and 11 of the record. Just as in Nweke’s case, learned counsel before us has laboured to convince the Court that the contraption above “J. Odion Esezobo & Co.” belongs to the appellant’s counsel. I agree with my learned brother, Garba, JSC, that the signature above “J.

Odion Esezobo & Co.” cannot be presumed to belong to the appellant’s counsel and in any event the signature was appended for and on behalf of “J, Odion Esezobo & Co.,” which is not the name of any legal practitioner appearing on the roll of legal practitioners at the Supreme Court. The decision in Nweke’s case has been followed in many subsequent decisions of this Court such as: Oketade vs Adewunmi & Ors. ​(2010) 2 – 3 SC (Pt. 1) 140; FBN Plc vs Maiwada (2013) 5 NWLR (Pt. 1348) 444; Nigerian Army Vs Samuel & Ors. (2013) LPELR – 20931 (SC) @ 14 – 16.

In FBN Plc Vs Maiwada (supra) there was an attempt by the appellant to have the decision in Okafor Vs Nweke revisited, on the ground that it was reached per incuriam. The full bench of this Court, assisted by 11 amici curae resisted the attempt and held that the decision is not in any respect, wrong in law and that it has come to stay. Yet again in Igbinedion & Ors vs Antia (2017) 12 SC (Pt. X) 102 @ 120 - 123, another full panel of this Court maintained the position in Okafor Vs Nweke. See also: SPDC Ltd Vs Sam Royal Hotel (Nig). (2016) 8 NWLR (Pt. 1514) 318.

In Hamzat vs Sanni (2015) 5 NWLR (Pt. 1453) 486, the issue of the competence of the Statement of Claim filed at the trial Court, having been signed in the name of a law firm, “Olumuyiwa Obanewa & Co.”, was raised for the first time before this Court. It was held that being an issue of jurisdiction, it goes to the root of the matter and sustains or nullifies whatever decision the Court may arrive at, no matter how brilliantly presented and could therefore be raised at any time, even for the first time before this Court. In that case, the Writ of Summons was found to be valid.

However, the incompetent Statement of Claim and evidence led thereon were expunged from the record. See pages 497 C – G per Galadima, JSC (supra) and 504 – 505 D – F per Peter-Odili, JSC (supra). This issue should finally be laid to rest. I agree with my learned brother that the processes before the trial Court were incompetent and rightly struck out by the Court below. For these and the more detailed reasoning in the lead judgment, I too would dismiss the appeal. The parties shall bear their respective costs in the appeal.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice M. L. Garba, JSC, to the effect that the instant appeal is grossly unmeritorious thus ought to be dismissed.

​Hence, without any much ado, I too hereby dismiss the appeal and abide by the consequential order thereby striking out the suit (LD/1432/2000) in the trial Court.

EJEMBI EKO, J.S.C. (DISSENTING): The Court of Appeal, Lagos Division (hereinafter called “the lower Court”) predicated the decision appealed on the fact that the entity – “J. Odion Ezezoobo & Co” that signed “the writ of summons” initiating the suit at the trial Court was not either the Plaintiff or “a legal practitioner within the meaning of the Legal Practitioners Act and the contemplation of Order 17 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 15 Rule 2 of the 2012 Rules of the (said) Court”.

On this premise the lower Court concluded that the action at the trial Court, not initiated in accordance with the due process of law, was incompetent ab initio. The judgment of the trial Court, in consequence of the said writ of summons, allegedly incompetent, was declared null and void.

The principle of law espoused in NWEKE v. OKAFOR (2007) 10 NWLR (pt. 1043) 521, followed by SLB CONSTRUCTION LTD. v. NNPC (2011) 9 NWLR (pt. 1252) 317; FBN PLC v. MAIWADA (2013) 5 NWLR (pt. 1348) 444, was, in my view, wrongly applied in the decision appealed, considering the peculiar facts of the case. Not every process of Court is an originating process. I agree the following are originating processes; that is:- the writ of summons; originating summons; originating motion and a Notice of Appeal. The process the subject of NWEKE v.

OKAFOR (supra) was an originating motion purportedly signed or settled by J.H.C. OKOLO, SAN & Co. that was neither the litigant himself nor a known legal practitioner. The originating motion, being an originating process was in the circumstance adjudged fundamentally defective and void ab initio. A defect in any other process, not an originating process, is taken as a mere irregularity.

They are voidable at the instance of the adversary; who upon failing to object, is deemed to have condoned and acquiesced in the defect and therefore taken to have waived his right in law to object to the defect.

A procedural irregularity can be waived or deemed to have been waived by the adversary “taking steps” in the proceedings inspite of the defect. This Court in ARIORI v. ELEMO (1983) 1 SC 13 has held that a party, in whom a legal right enures, can waive the legal right including his right in law to object to any defect appearing ex facie the process. Such conduct of failing or neglecting to object timeously to procedural defect appearing ex facie the process creates estoppel by conduct against the prospective objector under Section 169 of the Evidence Act, 2011.

I had stated that not all processes of Court are originating processes. An indorsement on the writ of summons, the purpose of which “is to let the defendant know why he is sued and what is being claimed against him” is not itself the writ of summons. The defect in the indorsement is curable either by amendment or the subsequent filing of statement of claim: FIDELIS NWADIALO – CIVIL PROCEDURE IN NIGERIA, 2nd Ed; Page 218, relying on the English case: HILL v. BOROUGH OF LUTON (1951) 2 KB 387.

In the same vein when the indorsement is deficient or bereft of particularity, such defect does not pronto render the writ of summons a nullity: PANTIN v. WOOD (1962) 1 QB 594. T. AKINOLA AGUDA: PRACTICE & PROCEDURE OF THE SUPREME COURT etc 1980 Ed. Para, 3.25, pages 22 – 23 citing FADAHUNSI v. SHELL COMPANY OF NIGERIA LTD (1969) NMLR 3041 etc opines, and I agree, that a defect in indorsement does not render a writ a nullity since such defect is curable by an amendment even of the writ.

In the instant case the writ of summons, which commanded the defendant to cause an appearance to be entered in the High Court of Lagos State in an action at the suit of the Plaintiff/Appellant, was issued “by order of the Court”. It was duly signed, at page 1 of the Records of appeal, by an officer duly authorised in that behalf by the extant Rules of the trial Court: Order 5 Rule 1 thereof. There is no complaint about this.

Its validity and competence enjoy presumption of regularity under Section 168(1) of the Evidence Act, 2011 since the “formal requisites for its validity were duly complied with” as a judicial act. The writ of summons at page 2 of the Record, has the indorsement which the defendant/respondent did not complain of.

​The complaint of the defendants/respondents at the lower Court necessitating this appeal is all about the process at page 3 headed “WRIT OF SUMMONS” which, in substance and actuality, was/is not a writ of summons, having not been issued “by the order of Court”. It was clearly not a process issued by an officer duly authorised in that behalf by the Rules of the trial Court. The process, clearly, a mere surplusage in view of the Writ of Summons at page 1 and the indorsement on the writ of summons at page 2 of the of the Record and the subsequent statement of claim.

The finding of fact, by the lower Court, that the said surplus process at page 3 of the Record was the writ of summons commencing the suit is thus perverse.

​The defendants, herein the Respondents, had consistently, at the trial Court, not complained about any defective writ of summons on account of its being allegedly singed or settled by a firm of legal practitioners, “J. Odion Ezezoobo & Co.” They each filed a Statement of Defence which, by leave of Court, they amended and filed Amended Statements of Defence subsequently. The parties called evidence on their respective pleadings. Their counsel also made final submissions wherein they adumbrated on the merits of their respective cases.

No objection was taken against the Writ of Summons allegedly signed or settled by a firm of legal practitioners – “J. Odion Ezezoobo & Co”. There being no such objection, the trial Court in its reserved judgment at pages 209 - 247 of Record neither considered nor resolved such issue. In other words, the trial Court did not consider or decide that the Writ of Summons on which the trial predicated and proceeded up to final judgment was defective and void ab initio. In its final judgment, the trial Court found only the 2nd defendant liable in the suit of the Plaintiff/Appellant.

In the appeal of the 2nd defendant, the first issue settled for the determination of the appeal by the lower Court (from ground 1 of the Further Amended Notice of Appeal) was: whether the Writ of Summons and the Statement of Claim not signed by the plaintiff himself but by a law firm were competent? The lower Court resolved that issue (in relation to only the Writ of Summons) in favour of the 2nd defendant and the suit of the Plaintiff/Appellant was struck out; hence this further appeal. The facts in this case, being almost on all fours with HERITAGE BANK LTD v.

BENTWORTH FINANCE (NIG.) LTD. (2018) 9 NWLR (pt. 1625) 420 (SC); the decision should have followed the decision in the HERITAGE BANK case (supra). ​Me thinks the said ground one in the Further Amended Notice of Appeal, not directed or not being a challenge to any particular ratio decidendi of the decision of the trial Court appealed, ought to have been thoroughly interrogated by the lower Court, which appellate Court, by dint of Sections 241, 242 and 243 of the 1999 Constitution is not constituted to entertain preliminary objections that ought to have been raised and determined by the trial Court.

The said Ground one, to me, is an attempt to invite the lower Court to usurp the function of the trial Court. Procedurally, therefore, leave ought to have been first sought and obtained before filing of the said Ground one, being a fresh issue at the lower Court and the issue raised therein also being extraneous to the decision appealed. I will restate the point I made in A.G, KWARA STATE v. LAWAL & ORS (2017) LPELR – 42347 (SC) that there is a distinction between preliminary objection and ground of appeal.

The main objective of preliminary objection is to terminate the suit in limine without going to its merits or substance. The usual complaint in preliminary objection is that the suit is incompetent and therefore should not be heard because the Court lacks jurisdiction to hear and determine the merits of it: NEPA v. ANGO (2001) 15 NWLR (pt. 737) 627 (SC); NDIGWE v. NWUDE ​(1999) 11 NWLR (pt. 626) 314 (SC).

On the other hand, a ground of appeal attacks the correctness of the decision appealed on a point or issue, and if successful, the ground of appeal and issue raised therefrom invariably leads to the setting aside of the decision on that point. The point canvassed in Ground One and issue one raised therefrom for the determination of the appeal at the lower Court, which that Court acceded to howbeit wrongly, was that the suit was incompetent, the Writ of Summons commencing it being void by reason of the fact that it was settled or signed by a law firm – J.

Odion Ezezoobo & Co, an entity unknown to law. The defendants at the trial Court having not raised any objection to the Writ of Summons and having also acquiesced in the defect were subsequently estopped from formulating objection thereto by the fact of their taking active steps in the proceedings leading to the trial Court’s final judgment: ARIORI v. ELEMO (supra); Section 168 (1) of the Evidence Act, 2011.

In this regard a ground of appeal is not an acceptable procedure for raising preliminary objection (that had been abandoned and/or waived) and doing so will be unconscionable, equity acting in personam; delay defeats equity and equity follows the law and public policy in ensuring that there must be an end to litigation. A party in litigation must be consistent. He cannot prevaricate, and therefore on one issue or point he must not be encouraged to approbate and reprobate at the same time.

That is the mischief estoppel by conduct seeks to restrain and exterminate in the administration of justice. The Supreme Court, being both a Court of justice and a policy Court must take a consistently robust stance on this. Strict compliance with the rules of Court makes administration of justice quicker: SOLANKE v. SOMEFUN (1974) 1 ALL NLR 586 (SC) at 592; F.B.N. V. ABRAHAM (2008) 362 NSCQR 1056 at 1076. Undue application or extension of the principle in NWEKE v.

OKAFOR (supra), without any attempt at distinction, is now stretching the principle to a breaking point, and leading invariably to substantial injustice (as in my opinion was the situation in AJIBODE v. GBADAMOSI (2021) 7 NWLR (pt. 1776) 475 (SC). Parties with bad cases, who by conduct had waived their right in law to object to defective process at the trial would later, after several years at the appellate Courts, surface with a ground of appeal as subterfuge to raise in substance an issue that clearly amounts to preliminary objection.

These days the Courts abhor technicality and have moved from undue reliance on technicality to doing substantial justice. In other words, as this Court has laid down in several authoritative judicial policy declarations, it is no longer the duty of the Court to give undue prominence to technicality at the expense of justice: NWOBODO v. ONOH (1984) 1 SCNLR 1; OWURU v. INEC (1999) 10 NWLR (pt. 622) 201; NWOLE v. IWUAGWU (2004) 15 NWLR (pt. 895) 61; IDRIS v. ANPP (2008) 8 NWLR (pt. 1088) 1 at 91; just to mention a few.

Finding, as I do, no defect that vitiated the Writ of Summons and the indorsement thereon at pages 1 and 2 of the Record of appeals; and that the defendants at the trial Court had waived their right to the preliminary objection and accordingly estopped from raising the said objection vide Ground One of the Notice of Appeal (from which issue one had been raised) before the lower Court; I hereby allow the appeal and set aside the decision of the lower Court appealed.

In my firm view, the lower Court had been hoodwinked and thereby succumbed to sheer arcane technicality, a clear antithesis of doing substantial justice in the matter. ​Appeal allowed. I make no order as to costs.

Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division, which dismissed the Appellant’s appeal against the judgment of the High Court of Lagos State delivered on 4th March, 2014. The Court below affirmed the declaratory reliefs amongst other reliefs made in favour of the Respondent in respect of a property known as No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos.

BRIEF STATEMENT OF FACTS The property, the subject matter of the suit, then known as Plot 15, Fashola Layout, Idi-Iroko Village, Lagos was owned by one Late Brigadier General Sunday Ajibade Adenihun (Rtd) who acquired title to the property in 1975 by virtue of a Deed of Conveyance dated 29th May, 1975 and registered as No. 83 at Page 83 in Vol. 1503 at the Lands Registry, Ikeja, Lagos. The said Late Brigadier Adenihun subsequently developed the property into two detached houses.

​In the year 1998, the Appellant, then known as Standard Trust Bank granted a loan facility to Late Brigadier Adenihun (Rtd) for which he pledged the property as security. The Deed of Legal Mortgage is dated 10th November, 2000 and registered on December, 2000 as No.59 at Page 59 in Vol. 2049 of the Register of Deeds kept at the Lagos State Lands Registry, Ikeja, Lagos. Consequent upon the failure of the Late Brigadier Adenihun (Rtd) to repay the loan facility granted to him, the Appellant auctioned a part of the property containing one of the detached houses.

However, when the proceeds were not enough to liquidate the lingering indebtedness, the Appellant sought to auction the other portion of the property which at that material time was occupied by the Respondent.

The attempt to auction the said property was resisted by Respondent who claimed that the property sought to be auctioned had been sold to his principals by Late Brigadier Adenihun (Rtd.) via a Deed of Assignment dated 18th November, 1992 and which a Lagos State Certificate of Occupancy No 48/48/1996AH dated 10th July, 1996 was issued to them. The Respondent claimed that his principals have enjoyed undisturbed possession of the property in dispute exercising direct act of ownership with regards to same since 1992, till dispute arose between the parties.

​In a bid to restrain the Appellant from auctioning the disputed property now known as No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos, the Respondent suing as attorney of his disclosed principals, took out a Writ of Summons and Statement of Claim against the Appellant seeking the following reliefs: i. “A declaration that late Brigadier General Sunday Ajibade Adenihun (Rtd) sold the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos to Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya in 1992. ii.

A declaration that as at 1998, the late Brigadier General Sunday Ajibade Adenihun (Rtd) had no legal or equitable interest in the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos which he could mortgage to the defendant. iii.

A declaration that any purported mortgage of the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos by Brigadier General Sunday Ajibade Adenihun (Rtd) to the defendant vide deed of mortgage dated 10th of November, 2000 registered as No. 59 at Page 59 in Volume 2049 at the Lands Registry, Ikeja, Lagos is null and void and of no effect whatsoever. iv. A declaration that the defendant has no legal or equitable interest in the property known as No. 5, Fashola Street, Idi Iroko Village, Off Ikorodu Road, Lagos to transfer, sell or assign to a third party. v.

N5,000,000 (Five Million Naira) as general damages against the Defendant for trespass to the Claimant’s property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos since 2007 till date. vi. An order of perpetual injunction restraining the Defendant, its servants, agents and privies from committing further acts of trespass on the property known as No. 5, Fashola Street, Idi Iroko Village, Off Ikorodu Road, Lagos. vii.

An order of perpetual injunction restraining the Defendant, its servants, agents and privies from selling, assigning or otherwise transferring the legal interest in the property known as No. 5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos to a third party.”

At trial, the Respondent as Claimant called two witnesses and tendered 17 exhibits, while the Appellant as Defendant called a lone witness and tendered seven exhibits.

​Upon the conclusion of trial and the addresses of counsel, the trial Court delivered a considered judgment wherein it granted the Respondent’s claims against the Appellant. Dissatisfied, the Appellant appealed before the lower Court which dismissed the appeal for lacking in merit.

Still disgruntled and in a bid to exhaust its constitutionally guaranteed right of appeal, the Appellant has appealed to this Court via a Notice of Appeal dated and filed on May, 2017.

MATTHEW ESONANJOR ESQ. settled both the Appellant’s Brief of Argument and the Reply Brief. The Appellant’s brief is dated and filed on 14th November, 2017 while the Reply brief is dated and filed 13th July, 2017.

​For the determination of the appeal, the Appellant’s counsel formulated three issues as follows: i. “Whether the lower Court was right when it held that the issue of locus standi was academic and on the basis of which grounds 4 and 5 of the Appellant’s grounds of appeal and its issue 3 were struck out. (Distilled from Ground 1 of the Notice of Appeal). ii.

Whether the Appellant was obligated to challenge before the lower Court the findings of facts made by the trial Court in favour of persons who are not parties to the suit as constituted before it. (Distilled from Ground 2 of the Notice of Appeal). iii. Whether the lower Court was right when it failed or neglected to resolve the two competent issues formulated by the Appellant and the one competent issue distilled by the Respondent for the determination of the appeal in the judgment appealed against. (Distilled from Ground 3 of the Notice of Appeal).”

On issue 1, it was submitted that the issue of locus standi is a threshold issue that borders on jurisdiction and must be resolved one way or the other before a Court can have jurisdiction to adjudicate on a matter. That where a claimant lacks locus standi to ventilate a claim in Court, the Court would lack the jurisdictional competence to adjudicate on the claim presented by that party. Reliance was placed on the cases of DADA & ORS V. OGUNSANYA & ANOR (1992) LPELR-908 (SC); AWUSE V. ODILI & ORS (2003) LPELR-666 (SC); AFRICAN NEWSPAPERS OF NIGER & ORS V.

FRN (1985) LPELR-211 (SC); DREXEL ENERGY & NATURAL RESOURCES LTD & ORS V. TRANS INTERNATIONAL BANK LTD & ORS (2008) LPELR-962 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Counsel for the Appellant submitted that the issue of the capacity of the Respondent to institute the suit at the trial Court was adequately raised in the Appellant’s pleading before the trial Court and in the written deposition of its sole witness. That assuming the issue of locus standi was not formally raised by the Appellant at the trial Court, the issue, being jurisdictional in nature, was properly raised before the Court below.

Counsel therefore submitted that the lower Court having acknowledged that the issue of locus standi is jurisdictional, erred by holding that the issue was academic. Reliance was placed on LADOJA V. INEC (2007) LPELR-1738 (SC); OKOYE & ANOR. V. CENTRE POINT MERCHANT BANK LTD (2008) LPELR-2505 (SC) OUR LINE LTD V. SCC (NIG) LTD & ORS (2009) LPELR-2833 (SC); OWIE V. IGHIWI (2005) LPELR-2846 (SC).

In the final analysis, he urged this Court to set aside the decision of the lower Court to the effect that the issue of locus standi raised by the Appellant was academic. He further urged the Court to nullify the proceedings and judgment of the Courts below for lack of jurisdiction.

​Arguing issue 2, counsel submitted that the Appellant had no duty to appeal against the findings of facts made by the trial Court as they were made in favour of the Claimant, Engineer Olabisi Mabogunje who had no locus to initiate the suit. Relying on NIGER CONSTRUCTION LTD V. OKUGBENI (1987) LPELR-1993 (SC), counsel submitted that a finding of fact reached in a judgment can only be in respect of a party before the Court.

That challenging a finding of fact made in favour of a non-party to a suit by a trial Court is academic as such finding of facts and conclusions do not affect the case contested between the parties. He urged the Court to resolve this issue in favour of the Appellant.

On issue 3, counsel submitted that the lower Court, having found that the Appellant formulated two competent issues for determination and that the Respondent formulated one competent issue, was bound to pronounce on the merits of the issues one way or the other in its judgment. Reference was made to the cases of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011) LPELR-1333 (SC) EGHAREVBA V. FRN & ORS (2016) LPELR-40045 (SC); OKAFOR V. ABUMOFUANI (2016) LPELR- 40299 (SC); BRAWAL SHIPPING (NIGERIA) LIMITED V. F. I.

ONWADIKE COMPANY LIMITED & ANOR (2000) LPELR-802 (SC) (2010); ONWE V. STATE (2017) LPELR-42589 (SC); GARBA V. MOHAMMED & ORS (2016) LPELR-40612 (SC); OKONJI & ORS V. NJOKANMA & ORS (1991) LPELR-2476 (SC).

It was further submitted that the failure of the Court below to resolve the competent issues raised by both parties before it, occasioned a miscarriage of justice against the Appellant. He submitted that this Court is empowered in such a situation to consider and resolve those issues without remitting the issues back to the lower Court for consideration and resolution provided that there is no need to re-examine witnesses. The cases of TITILOYE & ORS V. OLUPO & ORS (1991) LPELR-3250 (SC); KOTOYE V. SARAKI & ANOR, (1994) LPELR-1708 (SC) were relied on.

He urged the Court to resolve this issue in favour of the Appellant.

Counsel finally urged this Court to allow the appeal, set aside the judgment of the lower Court and dismiss the Respondent’s suit at the trial Court.

MORENIKE OBI-FARINDE (MRS) settled the Respondent’s brief of argument dated 20th June, 2018 and filed on 26th June, 2018. The Respondent’s counsel formulated the following three issues for the determination of the appeal as follows: i. “Whether the Court of Appeal was right in striking out Grounds 4 and 5 of the Notice of Appeal and the third issue formulated from the grounds. (Ground 1 of the Notice of Appeal) ii.

Whether the Court of Appeal came to the right decision when it held that the Appellant having failed to challenge the finding of facts made by the trial Court could not challenge the decision of the Court. (Ground 2 of the Notice of Appeal) iii. Whether the Court of Appeal resolved all the issues in the appeal. (Ground 3 of the Notice of Appeal)”

​On issue 1, learned counsel submitted that the Respondent having tendered Exhibit EOM 10, the Power of Attorney appointing him as attorney of Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya without any objection, the issue of capacity of Engineer Olabisi Mabogunje became otiose. That the trial Court did not pronounce on same, hence the grounds of appeal relating thereto in the Notice of Appeal before the lower Court did not emanate from the judgment of the trial Court.

It was further submitted that the originating processes and the evidence led at trial made it clear that the Respondent was suing in his capacity as the attorney for disclosed principals. The case of VULCAN GASES LTD V. G.F. IND. A.G (2001) 9 NWLR (PT. 719) PAGE 610 was referred to.

Counsel submitted that having demonstrated that he commenced the suit as attorney of disclosed principals, the lower Court was right in holding that the issue of locus standi was academic as the Appellants were not misled by the description of the Claimant. Counsel submitted that the lower Court considered the overriding need to do substantial justice rather than adhere to technicalities.

​On issue 2, learned counsel submitted that the lower Court was right to have affirmed the findings of the trial Court as they were based on the evidence on record. That having failed to appeal against the findings of fact made by the trial Court, it was not open to the Appellant to raise any issue in respect of that decision and the lower Court was right to hold that the Appellant could not challenge the decision of the trial Court anchored on those findings. Reliance was placed on IBERO V. UME-OHANA (1993) 2 NWLR (PT. 277) 510; PURIFICATION TECHNIQUE (NIG.) LTD V.

JUBRIL (2012) 18 NWLR (PT. 1331) 109.

He further submitted that the Appellant cannot before this Court, seek to challenge the findings made by the trial Court that were not challenged in the Court below as to do so would be seeking to confer on this Court a jurisdiction not conferred on it by the Constitution or by statute. Reliance was placed on HARRIMAN V. HARRIMAN (1987) 2 NSCC 930; ELIGWE V. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348.

It was further submitted that the Appellant’s contention to the effect that the findings of facts made by the trial Court were made in favour of non-parties to the suit is misconceived because an action by an attorney is akin to a representative action and that where an action is instituted in a representative capacity, the action is by and against those represented by the named parties. He referred to the case of OKONJI v. NJOKANMA (1989) 4 NWLR (PT. 114) 161.

​On issue 3, learned counsel submitted that an appellate Court is bound to consider and make pronouncements on all issues formulated by parties for the determination of the appeal distilled from competent grounds of appeal. The cases of GOODWILL & TRUST INVESTMENT LTD & ANOR V. WITT & BUSH LTD (2011); OKAFOR v. ABUMOFUANI (2016) 12 NWLR (PT. 1525) 117 were referred to.

It was also submitted that an appellate Court is not bound to accept the issues formulated by the parties as it is within the competence of the Court to identify what it views as the real issues raised by the grounds of appeal and resolve them. Reference was made to TITILOYE & ORS V. OLUPO & ORS (1991) 7 NWLR (PT. 205) 519. That the lower Court considered submissions of counsel for the parties and affirmed the decision of the trial Court after it found no merit in the submissions of the Appellant’s counsel who refused to challenge the findings of facts made by the trial Court.

Counsel finally urged this Court to affirm the decision of the Court below and to dismiss this appeal for lacking in merit.

​The 10 pages Reply brief filed by the Appellant is a mere rehash of the submissions and arguments contained in the Appellant’s Brief of Argument. The essence of a reply brief is to respond to new issues raised in the Respondent’s brief and not to re-argue issues contained in the Appellant’s Brief. Where a Respondent has not raised any such new issue, it is of no use for the Appellant to file a reply brief. See DOGO V. STATE (2013) LPELR-20175 (SC); A.B.C. (TRANSPORT CO.) LTD V. OMOTOYE (2019) LPELR-47829 (SC); CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR-827 (SC); AHMED V.

AHMED & CO (2013) LPELR-21143 (SC); GODSGIFT V. STATE (2016) LPELR-40540 (SC).

On the basis of the foregoing, I hereby discountenance the Appellant’s reply brief. I shall therefore proceed with the determination of the issues raised in this appeal.

RESOLUTION I have considered the issues distilled by counsel for the parties. The issues, although differently couched to strengthen their diverse postures, are similar in substance. In the light of this, I shall adopt the issues distilled by the Appellant for the resolution of the appeal. For ease of reference, the said issues are hereunder reproduced as follows: i.

“Whether the lower Court was right when it held that the issue of locus standi was academic and on the basis of which grounds 4 and 5 of the Appellant’s grounds of appeal and its issue 3 were struck out. (Distilled from Ground 1 of the Notice of Appeal). ii. Whether the Appellant was obligated to challenge before the lower Court the findings of facts made by the trial Court in favour of persons who are not parties to the suit as constituted before it. (Distilled from Ground 2 of the Notice of Appeal). iii.

Whether the Lower Court was right when it failed or neglected to resolve the two competent issues formulated by the Appellant and the one competent issue distilled by the Respondent for the determination of the appeal in the judgment appealed against, (Distilled from Ground 3 of the Notice of Appeal).”

I shall proceed to resolve issues one and two together. Issue no. 1 is predicated on the locus standi of the Respondent to initiate the suit and the decision of the Court below to the effect that the said issue is academic. The position of the Court below that the issue, being jurisdictional in nature, is academic, is what the Appellant is disgruntled about.

​The legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Claimant has a remote, hypothetical or no interest. In the absence of this legal standing, the Court has no jurisdiction to entertain the claim brought before it. See DANIEL V. INEC & ORS (2015) LPELR-24566 (SC); BASINCO MOTORS LTD V. WOERMANN-LINE & ANOR (2009) LPELR-756 (SC); OKWU & ANOR V. UMEH & ORS (2016) LPELR-26042 (SC); ITEOGU V. LPDC (2009) LPELR-1559 (SC).

According to the Appellant, Engineer Olabisi Mabogunje who initiated the suit which is the subject of the instant appeal as attorney of Professor Oluwatope Mabogunje and Professor Christiana Adesanya had no interest in the property in dispute, hence any relief granted to him was made without jurisdiction.

Now the poser at this point is whether the Respondent has any interest in the subject matter of this appeal clothing the two lower Courts with jurisdiction to entertain and grant his claims as contained in the statement of claim?

​In the determination of this issue, recourse must be made to decision of Court below with the view of ascertaining the validity of the Appellant’s complaint. At the Court below, the Respondent raised an objection to the competence of the Appellant’s grounds four and five which were said not to have arisen from the judgment of trial Court. Grounds 4 and 5 of the Appellant’s notice of appeal to the Court below were to the effect that the said Engineer Olabisi Mabogunje who initiated the suit had no locus standi to do so because he had no interest to protect in the property in dispute.

The Court below in its adherence to the principle of law was circumspect in treating those grounds as jurisdictional grounds which could be raised at any time in the proceedings, even for the first on appeal. In its judgment at pages 317-318 of the record of appeal as follows: “Locus standi is a threshold issue. A party must have the locus standi to institute or commence a suit.

Where a party had no locus standi to institute an action, the Court would have no jurisdiction to adjudicate on the matter brought before it; … The Appellant therefore did not require the leave of Court to raise the issue of locus standi on appeal. Ground 2 of the Preliminary Objection is resolved against the Respondent.”

​The Appellant’s counsel at paragraph 4.1.12 of the Appellant’s brief submitted that since the issue of the locus standi of the Respondent to initiate the suit was raised before the Court below, the Court below therefore had a duty to examine same.

The question at this juncture is whether the Court below considered the Respondent’s locus to initiate the suit when raised by the Appellant or the Court only dismissed the objection challenging locus with the wave of a hand on the ground that the said challenge was academic?

The record bears witness that the Court below held at pages 317-320 of the record as follows: “Although there was no specific complaint regarding the locus standi of Respondent taken at the lower Court, the further question is this: would its consideration at this stage amount to merely an academic exercise, as has been contended by the Respondent. The Statement of Claim at pages 4-9 of the Record of Appeal avers as follows: 1.

The Claimant is an Attorney of Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya, the joint owners of the property known as No. 5, Fashola Street, Idi-Iroko Village, off Ikorodu Road, Lagos. The Claimant shall rely on the Power of Attorney dated 18th of March, 2010. In the depositions of the Respondent’s witness at pages 11-15 of the Record of Appeal, Professor Oluwatope Mabogunje, stated thus: “Engineer Olabisi Mabogunje is my brother and he is suing as my Attorney as well as Attorney of Professor Christiana Oluremi Adesanya.

Both myself and Professor Christiana Oluremi Adesanya gave my brother a Power of attorney dated 18th of March, 2010 with regards to our property known as No. 5 Fashola Street, Idi-Iroko Village, off Ikorodu Road, Lagos.” The said Power of Attorney dated 18/3/2010, reproduced at page 17 of the Record of Appeal, was admitted in evidence as Exhibit EOM 10. The writ of summons, the Statement of Claim, which are the originating processes made clear the capacity in which the claimant brought the suit. The evidence adduced before the trial Court also made plain the capacity of the Respondent.

In other words, ab initio, there was no mistaking the capacity in which the Respondent brought the action. The Respondent demonstrated his interest in commencing the suit as attorney of named principals. In United Nigeria Company Ltd v Nahman & Ors ​ (2000) LPELR 10460(CA), the 1st Respondent as plaintiff in the lower Court by virtue of a Power of Attorney, had sued as: (Attorney for Jamil Abdallah). The locus standi or capacity of the 1st Respondent therein to institute the action in his name was attacked.

This Court, per Sanusi, JCA (as he then was) deliberating on agency through a power of attorney, relied on the views of the learned authors of the Halsbury’s Laws of England, 4th Edition clause 4 page 447 paragraph 774 and the terms of the Power of Attorney in issue therein to conclude as follows: “Thus, from the foregoing the said Joseph Nahman the donee of the power of attorney is authorized to act on behalf of his principal or the donor of the power.

Any act he did in his name is effective as if it was done by the donor.” See also C.N Ekwuogor Investment (Nig) Ltd v Asco Investment Ltd (2011) LPELR-3899(CA). The description of the claimant in the suit now on appeal therefore misled no one. The substance of a matter is always the pointer and not the description or mis-description as to form. I would, for this reason, agree with the Respondent that the issue at this stage is really academic. Ground 3 of the Preliminary Objection succeeds, grounds four and five of the grounds of appeal are accordingly”

Flowing from the hills of the above, it is safe to conclude that the Court below made an elaborate consideration of the capacity of the Respondent to initiate the suit and only arrived at the conclusion that the issue is academic because, the Respondent, having stated that he was suing as attorney of disclosed principals, had the capacity to initiate the suit. The Court below was of the view that since the Appellant was not misled as to capacity of the Respondent to initiate the suit, then credence would be given to the intent over form and also to substantial justice over technicalities.

​The finding of the Court below elaborately reproduced in the preceding paragraph, is a ratio decidendi. It therefore becomes vitally significant for the Appellant to appeal against it. The law is settled that the ratio decidendi of a case is the principle of law upon which the case was decided. It is this principle that is binding on the parties and capable of being the subject of an appeal. The ratio decidendi constitutes the authority on which the case stands. See: N.A.B. LTD. V. B. ENG. (NIG.) LTD. (1995) 8 NWLR (PT.413) 257 AT 289 H; ABACHA V.

FAWEHINMI (2000) 6 NWLR (PT.660) 228; ODUGBO V. ABU (2001) 14 NWLR (PT.732) 45. However, in the instant appeal, the Appellant only appealed against the conclusion of the Court below that the issue of locus was academic without appealing against the reasons for the conclusion. This is more like chasing a mirage. It is obscure that a counsel will labour on conclusions of a Court in an appellate exercise rather than the reasons leading to the conclusion. The ratio decidendi of a case is the reason for the decision, the principle of the decisions.

Having not appealed against the specific findings of the Court below regarding the capacity of the Respondent to initiate the suit, the consequence thereof is that the Appellant accepts the said findings as binding and conclusive on it and this Court will not in the slightest of ways distort such findings. Furthermore, the Respondent having tendered his power of attorney has disclosed his locus to institute the action.

​Having held that the Respondent has locus to the action which is the subject of the instant appeal, the Appellant was obligated to challenge the finding of facts made by the Court below in favour of Respondent. The effect of the failure of the parties to appeal against these specific findings of fact by a Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139-140; OPARA v.

DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56: (2006) 15 NWLR (pt.2002) 342; STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135.

Without further ado, issues 1 and 2 are hereby resolved in favour of the Respondent and against the Appellant.

​On issue no.3, the Appellant contended that the Court below failed to resolve two competent issues formulated by the Appellant and one competent issue distilled by the Respondent for the determination of the appeal. According to the Appellant’s counsel, the said issues which the Court abdicated its judicial dudes in respect of are: 1.

Whether the trial Court was right when it held that Late Brigadier General S.A Adenihun (Rtd) had no legal or equitable interest in the property known as No. 5 Fashola Street, Idi-Iroko Village Off Ikorodu Road Lagos which he could mortgage to the defendant (appellant herein). 2. Whether the lower Court was right when it held that Adenihun having divested himself of his title to Professor Mabogunje and Professor Adesanya, he has divested himself of his title in respect of No. 5 and has nothing to convey to the defendant (appellant herein). 3.

Whether the learned trial Judge was right in holding that late Brigadier General Sunday Ajibade Adenihun (Rtd) having divested his title to the property known as No 5 Fashola Street, Idi-Iroko Village, Off Ikorodu Road Lagos to Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya had no legal or equitable interest in the property to mortgage to the Appellant?”

​The law is well settled that a Court of law, whether of first instance or in its appellate jurisdiction like the lower Court which is penultimate in the hierarchy, has a duty to consider and resolve all issues submitted to it for adjudication except in the clearest cases. It would amount to a denial of fair hearing where the issues submitted by the parties have not been determined. See A.G. LEVENTIS NIG. PLC. V. AKPU (2007) 17 NWLR (PT. 1063) 416: ODETAYO V. BAMIDELE (2007) 17 NWLR (PT. 1062) 77; KOTOYE V. CBN (1989) 1 NWLR (98) 419.

The crux of the three issues which according to the Appellant were not considered by the Court below centre on who was entitled to the declaratory relief on the property lying, situate and being at No.5, Fashola Street, Idi-Iroko Village, Off Ikorodu Road, Lagos.

The Court below summarized the submissions of the Appellant and Respondent on the said issues at pages 323 to 332 of the record of appeal and in its resolution of the issues, the Court below held at page 333 of the record of appeal that failure of the Appellant to appeal against some specific findings of the trial Court regarding the ownership of the property in dispute means the said findings remain valid, binding, subsisting and presumed acceptable to or as between the parties.

​The Court below at pages 333-334 of the record of appeal held that: “The learned trial Judge at page 215 of the Record of Appeal found and held as follows: “The Claimants’ exhibit EOM 11 constitutes conclusive proof that the property No 5, Fashola Street, formally known as plot 15 Madam Fashola layout was sold by Brigadier General Adenihun to both Professor Mabogunje and Professor Adesanya on 18/11/92 and were put in possession exhibits EOM 12 & 13.

Furthermore, if the purpose of tendering a document as in this case, exhibit EOM 11 is to show that there was a transaction between the parties and the original owner, such document is admissible to establish the fact that indeed there was a purchase, such registrable instrument proves an equitable interest and payment of consideration or purchase price.

There was purchase from Brigadier General Sunday Ajibade Adenihun (Rtd) by the Claimant in this case.” The conclusion of the trial Judge, following the above finding, was to the effect that: “Both parties are claiming their interest from a common grantor, Late Adenihun, it is my view that Adenihun having divested himself of his title to Professor Mabogunje and Professor Adesanya, he has divested himself of his title in respect of No 5 and has nothing left to convey. to the Defendant.” (Underlining mine for emphasis).

The Appellant in ground two of the Notice of Appeal had contended that this conclusion was an error of law. The above finding of fact by the trial Court was not at all attacked by the Appellant. In other words, as at 18/11/1992, Professor Oluwatope Mabogunje and Professor Christiana Oluremi Adesanya purchased No 5, Fashola Street from late Brigadier General Adenihun. This finding of fact is deemed admitted and cannot be interfered with by this Court.

Having failed to attack the finding of fact upon which the conclusion was based, I do not see how the conclusion reached by the trial Court can be disturbed.” (Underlining mine).

Flowing from the hills of the above, can it be said that the Court below abdicated its duty by not considering the issues submitted by the parties on the ownership of the property in dispute? My answer is in the negative.

​From the presentation of the Appellant’s case right from the Court below to this Court makes it evident that the Appellant’s counsel is not conversant with appellate practice. The Appellant’s counsel failed to challenge specific findings touching on the substratum of the issues in dispute. In the absence of such appeal on specific findings, it is not the duty of an appellate Court to substitute its views in place of the findings not appealed against.

On the whole, I hold that this appeal is unmeritorious, same is hereby dismissed. The decision of the Court below which affirmed the declaratory reliefs and other reliefs granted to the Respondent by the trial Court is hereby further affirmed. The cost of N1,000,000 (One Million Naira) is hereby awarded in favour of the Respondent and against the Appellant.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother Adamu Jauro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment. I also find no merit in the appeal and it deserves to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.

I abide by the consequential order in the lead judgment including order on costs.

​UWANI

MUSA ABBA AJI, J.S.C.: My learned brother, Adamu Jauro, JSC, had before now graciously availed me, in draft, a copy of the judgment just delivered. On all the issues resolved therein in this appeal, I am in complete agreement with his reasoning and conclusion. Accordingly, I adopt the judgment in my contribution.

This appeal from the onset at the trial Court towed the lane of concurrence even up to this Honourable Court. What then I am expected to do in this instance is to scavenge for perverseness and errors in the findings or judgments of the lower Courts, which unfortunately I have found none. Thus, the Supreme Court will not ordinarily disturb concurrent findings of fact made by the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse.

It is my conclusion that by my scrutiny, I have no duty to interfere with the decisions of the two lower Courts.

I stamp the decision of my learned brother that this appeal being unmeritorious is only fit for dismissal and agree with the award of costs.

MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft of the leading judgment delivered by my learned brother, Adamu Jauro, JSC, in this appeal, I am in agreement with the views on the three (3) issues submitted by the Appellant for decision by the Court and the conclusion that the appeal is wanting in merit.

I join in dismissing the appeal in terms of the leading judgment.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, ADAMU JAURO, JSC. I completely agree with the reasoning, conclusions, decisions therein.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This appeal arose as a result of the Judgment of the Federal Capital Territory (FCT) High Court in Suit FCT/HC/CV/574/2014, delivered by Hon. Justice A. B. Mohammed on November 6th, 2017 wherein the Court found in favour of the Respondent (the Plaintiff at the Court below) and granted the reliefs sought.

See pages 342- 360 of the printed Record before this Court. ​From the facts garnered in the Record, the Respondent, a major importer and marketer of petroleum products within the downstream sector of the petroleum industry, sometime in December 2010, agreed to fund the importation of 30,000 Metric Tons (MT) of Petroleum Motor Spirit (PMS) for the Appellant who was given the allocation for importation for the 1st quarter of 2011. The Respondent is a major customer of Sterling Bank with trade facility running into an excess of USD100,000,000 (One Hundred Million Dollars).

According to the Respondent, its commitment was based on the Petroleum Product Pricing Regulatory Agency (PPPRA) letter of September 30th 2010 in favour of the Appellant. The Respondent set the machinery into motion on behalf of the Appellant, paid for the requisite charges for FORM M for the importation of 30,000 MT and caused inflow of funds into the Appellant’s account at various times to fund the letter of credit for the importation.

The 30,000 MT of PMS was imported and sold in line with the PPPRA’s mandate at commercial rate and the subsidy element to be paid within the confines of the Petroleum Support Fund (PSF) Scheme. The commercial proceeds according to the Respondent were paid to liquidate the letters of credit and the subsidy element was not paid as at when due until about 4-5 months beyond statutory period as opposed to Forty-five (45) days when subsidy payments are normally paid.

As the subsidy payment on the 30,000 MT of PMS was not made as at when due, the Respondent claimed to have suffered liability in terms of accumulated interest on the trade finance facilities used for the importation of the PMS for the Appellant. And in line with its practice, the PPPRA Debt Management Office with the Federal Ministry of Finance computed and assessed the foreign exchange as well as interest rate differentials as Ninety-two Million, Three hundred and Forty-two Thousand One Hundred and Fifty-seven Naira, Eighty-nine Kobo (N92,342,157.89K).

It instituted an action against the Appellant for recovery of the said sum after persistent demands without payment from the Appellant. ​ It is important to state that the matter went to trial the Respondent called Four (4) witnesses and tendered Eight (8) Exhibits in support of its case. The Appellant on the other hand withdrew its Counter-claim and rested its case on that of the Respondent. Judgment was given in favour of the Respondent. The following were the claims of the Respondent at the Court below: a.

A declaration that the Plaintiff is entitled to be paid the sum of N92,342,157.89k (Ninety Two Million, Three Hundred and Forty Two Thousand, One Hundred and fifty Seven Naira, Eighty Nine Kobo) being interest and foreign exchange differentials by the Debt Management Office on importation of 30,000 Metric Tonnes of Petroleum Motor Spirit (PMS) under the 1st quarter of 2011 (QI 2011) which the Plaintiff financed on behalf of the Defendant. b.

And (sic) Order for payment to the Plaintiff the sum of N92,342,157.89k (Ninety Two Million, Three Hundred and Forty Two Thousand, One Hundred and Fifty Seven Naira, Eighty Nine Kobo) already computed by the Debt Management Office on importation of 30,000 Metric Tonnes of Petroleum Motor Spirit (PMS) under the 1st quarter of 2011 (QI 2011) which the Plaintiff financed on behalf of the Defendant. c. Cost of the action. As already stated, judgment was given in favour of the Respondent, hence the instant appeal, the Appellant being aggrieved.

The Appellant’s Notice and Four (4) grounds of Appeal dated November 14th 2017 was filed November 15th, 2017. In the main the following relief is being sought by the Appellant: a. An order allowing this Appeal and setting aside the Judgment of the lower Court delivered on the 6th day of November, 2017. See pages 362 -366 of the Record. ​ In compliance with the Rules of this Court, the Appellant’s brief of argument dated and filed February 6th 2018 which was deemed as properly filed and served on September 16th 2021, settled by Lawrence Alabi Esq. was adopted at the hearing of this appeal.

He urged that the appeal be allowed. On behalf of the Respondent, its brief dated April 2nd 2018, filed April 18th 2018, deemed as properly filed and served was settled by D.A. Awosika SAN, who urged that the appeal be dismissed. Parties donated Issues for determination of the appeal thus: ISSUES BY THE APPELLANT 1. Was the learned trial Judge wrong when he held contrary to the provision of Section 131 (1) & (2) of Evidence Act and granted Judgment to the Respondent without proof in support of their case. 2.

Did the learned trial Judge err in law when he held that from the unchallenged and uncontroverted oral and documentary evidence led by the Respondent in this case (sic). Thereby held that the Respondent has proved his (sic) case against the Appellant on the balance of probabilities while the documentary evidence admitted by the Court are manifestly contradictory. 3. Did the learned trial Judge err in law and exceeded (sic) his jurisdiction when the Respondent without evidence in proof of facts and material element of his (sic) case, found that the Respondent is entitled to Judgment. 4.

Did the learned trial Judge exceed his jurisdiction when he ordered that the appellant should pay the sum of N92,342,157.89k (Ninety Two Million, Three Hundred and Forty Two Thousand, One Hundred and fifty Seven Naira, Eighty Nine Kobo) being interest and foreign exchange differentials on importation of 30,000 metric tons of Premium Motor Spirit (PMS)under the 1st quarter of 2011 (QI 2011). ​ LONE ISSUE BY THE RESPONDENT “Whether the judgment entered in favour of the Respondent by the lower Court is proper having regard to the pleadings and evidence led.

Having very carefully read the issues by the parties, one is satisfied that a lone issue will suffice for the just and fair determination of this appeal. The issues by the Appellant, with respect all seek the same thing and can be compressed into one. I shall adopt the lone issue by the Respondent reformulated as follows: Whether or not the Court was right to have found in favour of the Respondent given the evidence placed before it”.

SUBMISSIONS ON BEHALF OF THE PARTIES APPELLANT’S SUBMISSION The learned Counsel for the Appellant submitted that the Respondent failed to prove its case as it did not present any material evidence empowering it by the Appellant to fund the importation of 30,000 metric tons of PMS for the 1st quarter of 2011 and cited in support the cases of AGBI V. OGBE 2006 NSCQR 1257 1277, CHIEF CLEMENT OBIJIAKU V. J.B.ONUHA OFFIAH 1995 7 SCNJ 142 and H.R.H. OBA L.B. OMOBORINOLA V. MILITARY GOVERNOR ONDO STATE 1998 12 SCNJ 192.

He submitted that no matter how brilliant the submission of Counsel may be, it cannot take the place of evidence and that it was necessary that the Memorandum of Understanding (MOU) allegedly signed by the two parties should have been tendered at the Court below in proof of the Respondent’s case. In support, he cited the cases of NIG. ARAB BANK LTD. V FELLY KEME LTD. 1995 4 NWLR PT. 387 100 and CHUKWUJEKU V.

OLALERE 1992. ​He asserted that the permit to import given to the Appellant was in respect of 15,000 MT of PMS only which contradicted the 30,000 MT as pleaded by the Respondent and that Exhibit PW2E which was tendered without any objection from the Respondent was proof of the 15,000 MT. He submitted that the Court should have acted on it without need for further proof from the Appellant and cited in support the case of GOVERNMENT OF AKWA IBOM V. UMA 2006 FWLR PT. 110 P. 1793.

He argued that apart from PW2E, PW3A showed a different sum for the foreign exchange differentials as One Hundred and Thirty- one Million, Seven Hundred and Twenty-six Thousand, Three Hundred and Thirty -eight Naira, Eighty Nine Kobo (N131,726,338.89k). That the Court was wrong to have admitted the Exhibits with the contradictions as it ought not to speculate or make a new contract for the parties and cited in support the cases of ADESOYE OLANLEGE V. AFRO CONTINENTAL NIG. LTD. 1996 7 NWLR PT. 458 29, FAKOREDE V. A-G WESTERN STATE 1972 1 ALLNLR PT.1 178 and IKENYE V.

OFUNE 1988 2NWLR PT. 5 1. ​Further he submitted that, the burden to explain the difference in the two sums was on the Respondent which it failed to do. The learned Appellant’s Counsel submitted that the Court exceeded its jurisdiction to have ordered that the Appellant should pay the Respondent the alleged sum and that the parties were bound by the terms of their contract and in support cited the cases of SERGIUS ONYKWELU V. ELF PETROLEUM NIG. LTD. 2009 ALL FWLR PT. 469 428 and IDONIBOYE-OBU V. NNPC 2003 4 MJSC 131.

He argued that failure to tender the said MOU in Exhibit PW3A was critical to the case of the Respondent and cited in support the cases of FRAMO NIG. LTD. V. DAODU 1993 3 NWLR PT. 281 372 and Section 167 (d) of the Evidence Act 2011 in respect of the non-production of the MOU. In conclusion, he urged that the appeal be allowed and the judgment of the Court below set aside. RESPONDENT’S SUBMISSION The learned Respondent’s Counsel submitted that the appeal is unmeritorious, that the Respondent established its case and is entitled to judgment as given by the Court.

He asserted that the Respondent supported its case with Four (4) witnesses and Exhibits PW1A, the PPPRA’s letter of allocation to the Appellant to supply 30,000MT of PMS which the Respondent financed, Exhibit PW2A, PW2B, PW2C, PWD, PW2E and PW2F, especially the testimony of PW2 and PW3 and that the decision of the Court was based on evidence and cannot be faulted. In support he cited the case of OGUNLEYE V. ONI 1990 2 NWLR PT.135 745.

He argued that the Appellant never denied the accuracy of the entries in the statements of account served on it by Sterling bank and cited the case of SKYE BANK PLC. V. MRS JADESOLA KUDUS 2011 LPELR-4962 CA in support. He submitted that the oral evidence of PW2 and PW3 in respect of the agreement between the parties was rightly allowed by the Court in proving the contents of the MOU that was lost and cited the cases of ONWUGBELU V. EZEBUO & ORS. 2013 LPELR- 20401 CA and ALLI V. IKUSEBIALA 1985 1 NWLR 4 630.

That, the evidence of the Respondent was not discredited, remained unchallenged and that the Appellant rested its case on it. Therefore he submitted that, minimum evidence was required from the Respondent and that the case of the Respondent was found more probable. In conclusion, he prayed that the findings of the Court be not disturbed and urged that the appeal be dismissed and the judgment of the Court be affirmed. THE POSITION OF THE COURT The issue involved in this appeal in my view and humbly would appear clear and straight forward.

The Appellant as contained in its processes before this Court is of the position that the Respondent failed to prove its case with credible and cogent evidence. That it should not have been granted its claims by the Court, particularly as it failed to produce the alleged MOU it claimed was voluntarily signed by both parties on the importation of the 30,000 tons of PMS. It is further the Appellant’s position that it had allocation to import only 15,000 MT of PMS and therefore did not owe the Respondent as claimed.

The Respondent on the other hand argued that it undertook by agreement to finance the importation of the 30,000 MT of PMS given to the Appellant and incurred expenses in respect thereof which were yet to be completely defrayed, hence the suit at the Court below. I shall proceed to consider the sole Issue adopted through the findings of the Court having very carefully studied the Record and all the processes by the parties placed before the Court. For ease of reference, the Issue is hereunder reproduced.

SOLE ISSUE Whether or not the Court was right to have found in favour of the Respondent given the evidence placed before it. ​ The law is beyond settled that in civil matters, the burden of proof rests on the party who asserts a fact and whose case will fail if such assertion is not proved. The standard of proof remains the preponderance of evidence or balance of probabilities. A party is not allowed to rely on the weakness of the defence of the other party but must establish his case with clear, cogent and credible evidence. see the cases of YAKUBU V.

JAUROYEL 2005 ALL FWLR PT. 283 184, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and OKUBULE V. OYAGBOLA 1990 4 NWLR PT. 147 P. 723. ​ The trial Court is the Court that has the privilege and opportunity to deal with both facts and law in respect of matters before it, as it listens to witnesses and watches their demeanor. The Appellant herein at the trial did not field any witness to testify, orally adopt its pleading and the position of the law is clear in that regard.

It remains the law that pleadings however strong and convincing the averments may be, without evidence of proof thereof go to no issue. A mere averment in pleading proves nothing unless admitted. Therefore, in addition to pleading relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts then the pleadings are deemed abandoned. The apex Court aptly described the situation of pleadings without oral evidence in the case of OJOH V.

KAMALU 2005 24 NSCQR VOL. 24 P. 256 per Tobi JSC as he then was thus: “…not being human beings, have no mouth to speak in Court and so they speak through witnesses. If witnesses do not mandate them in Court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantage of the owner, in this context the appellant.”​ See further the cases of A. G. FERRERO & CO. LTD. V. HENKEL CHEMICALS NIG. LTD. 2011 LPELR-12, IMANA V. ROBINSON 1979 3- 4 SC and UNION BANK OF NIG. PLC. V. ASTRA BUILDERS W.A LTD. 2010 LPELR 3383 SC.

The sworn statement of the parties ought to be adopted in open Court as the oral evidence of the party. One recalls that the procedure by which the sworn statement on oath of a party is adopted at trial by a party under oath came about as part of the efforts in the administration of justice system as one of the ways and means to reduce trial times and bring about speedy dispensation of justice.

Therefore, once a party adopts his sworn statement together with any exhibits he may wish to tender having duly followed the process as per the Rules of the particular Court, cross-examination can commence. The Appellant at trial at the Court below opted not to call any witness and rather rested its case on that of the Respondent.

As correctly stated by the Court, the position with that option was precarious, as the Appellant’s case would be seen from the case presented by the Respondent and by the Respondent’s evidence. ​ The Court in its evaluation made the following findings: That, the Respondent was able to support its story with evidence cogent and credible. It found Exhibit PW1A, dated December 30th 2010, the letter of allocation/permit to the Appellant to import 30,000 MT of PMS as supportive of the oral evidence of the PW3 that the Appellant was given the permit to so import in the 1st quarter of 2011.

Exhibit PW2C, the statement of account showed that the Respondent as claimed, credited the account of the Appellant with Sterling bank in the amounts stated therein within the period in respect of the letter of credit for the execution of the claimed importation. The Exhibit supported the evidence of the PW2, one Olanrewaju, Group Head in charge of Corporate & Structured Finance Department, Sterling bank and the PW3, the Managing Director of the Respondent on pages 307 to 318 respectively.

There is Exhibit PW2D, the letter from Sterling bank dated May 18th 2011 which confirmed that the bank established a letter of credit in favour of one Vitol S.A. on behalf of the Appellant for the importation of the 30,000 MT of PMS, Exhibits PW2A and PW2B, copies of FORM M and the Letter of Credit in favour of Vitol S.A by the bank on behalf of the Appellant.

The Respondent tendered further, Exhibit PW1E, copy of the import permit issued to the Appellant by the Department of Petroleum Resources dated November 23rd 2010 and Exhibit PW3A, the Respondent’s letter dated September 8th 2014 to the Appellant on the outstanding money and the Summary of Interest Charges and Forex Differentials Computation on delayed claims for 2011 submitted to the Debt Management Office for payment which supported PW3’s assertion in her witness statement on oath. ​ The Court found and stated as follows in respect of the foregoing documents on page 358 of the Record: “Clearly all the above documentary exhibits (Exhibits PW1A, PW2A, PW2B, PW2C, PW2E, PW2F, PW3A and PW4A) support the oral evidence of the Plaintiff’s witnesses, especially the testimonies of PW2 and PW3.” One cannot agree more with the Court as well as its position on the non-tendering of the MOU between the parties by the Respondent.

That, the non-presentation of the MOU which the Respondent claimed was lost and could not be found, was not fatal to its case as there were other pieces of evidence in preponderance in support of the case of the Respondent. Through the gamut of the Record, there was no finding that the evidence by the Respondent was debunked at cross-examination by the Appellant.

In consequence the Court held and correctly in my view and humbly thus on page 359 of the Record: “From the unchallenged and uncontroverted oral and documentary evidence led by the Plaintiff in this case, I hereby resolve the sole issue for determination in this case in the affirmative and hold that the Plaintiff has proved its case against the Defendant on the balance of probabilities.” ​And it therefore entered judgment for the Plaintiff against the Defendant. ​ The two most significant aspects of a claim are pleadings and the evidence in proof thereof.

The evidence in proof must align with the pleadings as in the case of the Respondent herein otherwise it would serve no useful purpose. See the cases of AWUSE V. ODILI 2005 16 NWLR 444, BALOGUN V. AMUBIKANHAN 1985 3 NWLR PT. II 27 and CBN V. JIDDA 2001 5 NWLR PT. 705 165. In my considered view and humbly, the findings of the Court cannot be disturbed as they meet the justice of the issues involved. In that regard, one therefore resolves the sole issue herein against the Appellant. ​ In the result, this appeal cannot be allowed it fails and therefore is accordingly hereby dismissed.

Consequently, the Judgment of the Court below delivered by Hon. Justice A. B Mohammed on November 6th 2017 is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, ELFRIEDA O. WILLIAMS- DAWODU, JCA. I agree with my learned brother that the appeal lacks merit, it fails and is accordingly dismissed. I also affirm the judgment of the lower Court delivered by HON. JUSTICE A. B. MOHAMMED on the 6th day of November, 2017.

DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read in draft the judgment of my learned brother, ELFRIEDA O. WILLIAMS-DAWODU just delivered, and I agree with the findings and conclusions reached therein that this appeal lacks merit and I dismiss it as well. ​ The judgment of the lower Court in Suit No. FCT/HC/CV/574/2014 delivered on 6th November, 2017 by A. B. Mohammed, J. is hereby affirmed.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Court of Appeal, Abuja Judicial Division, delivered on February 24th, 2015 in appeal No. CA/A/673/2013. By the said judgment, the Court below granted the Respondent’s appeal against the Appellant.

BACKGROUND FACTS The Appellant happens to be a financial institution duly incorporated under the Companies and Allied Matters Act, CAP. C.20 Laws of the Federation of Nigeria, 2004.

Contrariwise, the Respondent is a parastatal of the Federal Government of Nigeria duly established pursuant to the provisions of the Nigeria Social Insurance Trust Fund Act CAP. N88 Laws of the Federation of Nigeria. The Respondent as a Social Trust Fund, duly established by the Federal Government, has had a cause to be engaged in a banking business with the Appellant.

On 19/05/2008, the Respondent applied vide a letter to roll over various sums of money in the Appellant’s Bank for a fixed terms of 31 days. The whole essence of the transactions between the parties was to gain some interests.

On 18/8/2008, the Appellant made some payments to the Respondent at annual interest rates of 11% and 2% penal rate, as against the 2% daily interest rate allegedly agreed upon by the parties.

On 13/8/2010, the Respondent introduced the Accounting Firm of D.E. Ogona & Co. to the Appellant, thereby demanding further interest payments from the Appellant. The Appellant, however, denied any lability, claiming that it had fully paid those sums of money to the Respondent.

Thus, on 21/6/2011, the Respondent caused a writ of summons to be instituted at the FCT High Court by CAC Agidi Esq. of Eric Apia & Co. By virtue of the endorsement on the face of the writ of summons and statement of claim (filed along with the writ), the Respondent claimed against the Appellant the following reliefs: a. N16,639.23 being the amount of the 4 days penalty for default plus the regular interest on the placement of N205,581,158.11. Less and N294,803.83 already paid as interest and penalty. b.

The sum of N62,582,512.11 being the amount for the 5 days penalty for default plus the regular interest on the placement of N616,559,877.02. c. The sum of N40,225,913.48 being 21% interest on both placement from the due dates to 20th August 2010. d. 21% interest per annum on the total sum from 21st day of August 2010 till judgment is delivered. e. 10% interest from the date judgment is given until final liquidation of the debt. f. N6,000,000 being the cost of the prosecuting of this suit. g. Exemplary damages.

Parties haven filed and exchanged their respective pleadings, the matter proceeded to full blown trial. At the conclusion of the trial, the trial Court delivered the vexed judgment on May 2nd, 2013 to the conclusive effect that the Respondent’s claim lacked merits and accordingly dismissed same.

Not unnaturally, the Respondent was utterly dissatisfied with the decision of the trial Court, thus appealed to the Court below. On February 24th, 2015, the Court below delivered the vexed judgment to the following conclusive effect: In the facts relating to this appeal, there is no convincing evidence that there were verbal or oral negotiations to written agreement between the parties.

The fact that the Appellant did not immediately request for the balance of the penalties calculated as per daily default does not amount to a waiver of the balance payment. … Having resolved the two issues in favour of the appellant this appeal succeeds and it is hereby granted. For the avoidance of doubt, the appellant is hereby awarded the monies against the respondent… I award costs of N30,000.00 in favour of the appellant against the respondent.

On February 1st, when the appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in their respective briefs, thereby warranting the Court to reserve judgment to today.

The Appellant’s Amended brief, settled by Taiye Oniyide Esq. on 07/5/2018, spans a total of 21 pages.

At page 3 thereof, three issues have been nominated for determination of the appeal: (i) Whether the lower Court was right when they held that the defence of Estoppel by conduct did not avail the Appellant. (Relates to Ground 1) (ii) Whether the lower Court was right when they held that the Respondent is entitled to its reliefs. (Relates to Ground 2) (iii) Whether the lower Court was right when they held that the trial Court did not properly the evidence of admission by conduct adduced by the Respondent. (Relates to Grounds 1 & 3).

The issue 1 has been extensively canvassed at pages 3-12 of the said brief. Without much ado, it is submitted that the Court below was wrong when it held that the defence of estoppel by conduct did not avail the Appellant.

Copiously alluding to the finding at page 323 of the Record, it is argued that. the Court below arrived at that decision without properly evaluating the Appellant’s submissions and evidence placed before it.

See BLACK’S LAW DICTIONARY 8th Edition; Section 169 of the Evidence Act 2011, regarding the concept and definition of estoppels.

Briefly sketching the facts of the case culminating to the instant appeal (paragraphs 3.04-4.03 at pages 4-5), it is argued that it is not in dispute, that there was an express agreement regulating the transaction between the parties, but this agreement was varied after the Appellant paid 11% interest and 2% penal fee vide business letter to which the Respondent did not reply.

​It is postulated, that silence is an admission which is capable of acting as estoppel, thereby denies a remedy. See OLUFUNMISE VS. FALANA ​(1990) 3 NWLR (pt. 136) 14 paragraph B; MARADUN VS. TAMBUWAL (2015) LPELR- 24443; et al.

It was finally submitted that the cumulative effect of the Appellant’s argument under issue 1, is that a case of estoppel by conduct has been established by the Appellant against the Respondent. The Court is urged to so hold and resolve issue No. 1 in the affirmative.

The issue 2 is argued at pages 12-17 of the brief, to the effect that the Court below was wrong to have held that the Respondent was entitled to its reliefs.

Copiously alluding to pages 322-324 & 326 of the Record vis-a-vis Exhibit 19 (page 19 Record), it is argued that the Respondent was not entitled to the sums of N16,693,639.23 and the N62,582,512.11, respectively, as the Appellant had already settled the total amount owed the Respondent.

The Court is urged to so hold, and accordingly resolve the issue 2 in the negative.

The issue 3 is argued at pages 17-20 of the said brief. In a nutshell, it is submitted that a careful perusal of the circumstances of this case would show that estoppel by conduct has been proved beyond per adventure by the Appellant.Therefore, the Court is urged upon to hold that the judgment of the Court below is against the weight of evidence.

See OLONADE VS. SOWEMIMO (2014) 14 NWLR (pt. 1428). UKEJE VS. UKEJE (2014) 11 NWLR (pt. 1418) 384, et al.

The Court is urged to so hold, and resolve the issue 3 in the negative. On the whole, the Court is urged to allow the appeal.

Contrariwise, the Respondent’s brief, settled by Tuduru U. Ede Esq. on 14/8/2018, spans a total of 40 pages. At pages 3-4 of the brief, two issues have been thrown up for determination: (a) Whether the agreement of the parties in writing as to the payments of annual and daily penalty interests was varied orally thereby estopping the respondent from demanding interests as provided in the agreements between. The parties? Grounds 1 & 3; (b) Whether the Court below was right in granting to the Respondent the relief sought in the suit? Ground 2.

However, the Respondent has deemed it expedient to raise a preliminary objection at pages 4-6 (paragraphs 4.0-4.4), while the argument thereon is provided at pages 4-17 of the said brief.

​In the main, the submission of the Respondent on the preliminary objection is that grounds 1, 2 and 3 of the Notice of Appeal pages 331-333 of the Record) are incompetent, thus ought to be struck out. Further submitted, that each of the three grounds of appeal (1, 2 & 3) raises evaluation or examination of facts for which leave of Court ought to have been sought and granted before they were filed. See AG BENDEL STATE VS. AG FEDERATION (1981) All NLR 85, 204 paragraph 4 per Fatayi Williams, CJN, et al.

It was argued, that no such leave was sought and none was granted. The grounds are therefore incompetent. See ALLANAH VS. KPOLOKWU (2016) 6 NWLR (pt. 1507) 1, per Kekere-Ekun, JSC @ 52-53 paragraphs G-D.

On the whole, the Court is urged upon to strike out the said grounds (1, 2 & 3) of the notice of appeal for being incompetent.

The Respondent proceeds to canvass argument on the two issues formulated on the merits. The issue (a) is canvassed at pages 17-33 of the Respondent’s brief. In the main, it is submitted that since the contract between the Appellant and Respondent was entered into writing, as shown in Exhibits P1-P6, then the tenor and terms of such a contract can only be read and known by the contents of the documents. Thus, any condition or agreement which seeks to vary the original agreement between the Appellant and Respondent must itself be in writing.

See Section 128 (1), (b), (c), (d), (e), (2), (3) of the Evidence Act; BALIOL (NIGERIA) LTD VS. NAVCON (NIG) LTD (2010) 16 NWLR (pt. 1220) 619, 630 paragraphs A – E; et al.

Further submitted, that the Court below amply captures the inapplicability of the doctrine in the present case and was therefore right by its findings at pages 321-322 of the Record. The Court is urged to so hold and resolve issue (a) in favour of the Respondent.

The Respondent’s Second Issue (b) is argued at pages 33- 37 of the brief thereof. In a nutshell, it’s submitted that the Respondent proved and was entitled to reliefs (i), (ii), (iii), (iv) and (v) of the claim thereof. As such, the Court below was right when it held at pages 323 and 324 of the Record, that the Respondent was silent and did not contest reliefs (iii), (iv) and (v) of the Appellant’s claims. The three reliefs are therefore deemed admitted.”

​It is postulated, that the Court below acted properly by evaluating the evidence in the face of improper evaluation of same by the trial Court. The Court is urged to discountenance and expunge issue 2 of the Appellant’s Amended brief. This is because the said issue 2 does not arise from ground 2 of the Notice of Appeal (page 332 of the Record). The Court is urged to resolve the second issue in favour of the Respondent.

On the whole, the Court is urged upon to dismiss the appeal and affirm the judgment of the Court below.

The Appellant’s Amended brief was filed on 28/7/2020, but deemed properly filed and served on 02/12/2020. It spans a total of 19 pages. Pages 1-9 (paragraphs 1.1-2.33) of the brief specifically deal with the Respondent’s preliminary objection.

It is submitted, that a careful perusal of grounds 1 and the particulars thereof revolve around the complaint that the Court below misunderstood the law on estoppel (Section 151 of the Evidence Act, 2011), and wrongly ascribed probative value to the evidence on record.

The Court is urged upon to dismiss the preliminary objections.

​DETERMINATION OF THE RESPONDENT’S PRELIMINARY OBJECTION As alluded to above, by the Respondent’s Amended Brief of Argument (14/8/2018) at page 4 (paragraphs 4.0-4.2), an objection is raised, thereby the competence of Grounds 1, 2 and 3 of the Notice of Appeal (pages 331-333 of the Record) and issues 1, 2 and 3 of the Appellant (pages 3-20 of the Appellant’s Amended Brief) respectively.

The Notice of Preliminary Objection is predicated upon a total of 22 grounds: (a) Grounds 1 and 3 of the Notice of Appeal are on facts or mixed law and facts. (b) No leave of the Court below or this Honourable Court was first sought and obtained to appeal to this Honourable Court on the grounds 1 and 3 of the Notice of Appeal. (c) The particulars of errors to the grounds 1 and 3 of the Notice of Appeal disclose substantial issues of facts points of facts and questions of facts in the Court below or trial Court and now being challenged before this Court without leave. (d) The substantial issues of facts, questions and points of facts raised and challenged herein in grounds 1 and 3 of the Notice of Appeal were made by the trial Court against which appeal cannot lie directly to this Court. (e) Ground 3 of the Notice of Appeal questions evaluation and assessment of evidence which are matters of facts for trial Court or those to be raised only with leave of the Court below or this Honourable Court. (f) Particulars 1-4 of Ground 3 of the Notice of Appeal are all on facts and query assessment and evaluation of facts/evidence. (g) Issue 1 of the Appellant’s Amended Brief Argument is incompetent having been formulated from an incompetent ground of appeal. (h) Issue 3 of the Appellant’s Amended Brief of Argument is incompetent having been raised from incompetent grounds of appeal. (i) Issue 3 of the Appellant’s Amended Brief of Argument is incompetent having been raised from both ground 1 and 3 of the Notice of appeal and which said ground 1 has been used earlier to formulate issue 1. (j) A ground of appeal cannot give rise to more than one issue for determination. (k) Ground 1 of the Notice of appeal cannot be used to raise issues 1 and 3. (l) Grounds 1 and 3 are caught by Section 233(3) of the 1999 Constitution (as amended) and so incompetent. (m) Ground 3 of the Notice of Appeal being omnibus ground of appeal and issue 3 formulated therefrom cannot be used to attack specific question in the appeal there being no specific ground of appeal to that effect. (n) The ground 1 and 3 of the Notice of Appeal constitute appeal against decision of the High Court and arguments on the issues 1 and 3 of the Appellant’s Amended Brief of Argument are incompetent and without jurisdiction. (o) The ground 1 on estoppel by conduct is a question of fact requiring leave of the Court below or this Honourable Court first sought and obtained to challenge on a final appeal. (p) Particulars 1-6 of ground 1 of Notice of Appeal are questions of facts. (q) Issue 2 of the Appellant’s Amended Brief of Argument and arguments on it are incompetent as the omnibus ground of appeal cannot be used to generally attack a judgment on appeal (r) Ground 2 of the Notice of Appeal is incompetent as it is appeal on cost that requires leave under Section 241 (2) of the 1999 Constitution (as amended). (s) The appeal on cost requires leave of Court which in this appeal was not first sought and obtained of either the Court below or of this Honourable Court. (t) There is no jurisdiction in this Honourable Court to hear appeal from High Court. (u) There is no jurisdiction to hear and determine the appeal.

Grounds 1, 2 and 3 of the Appellant’s Amended Notice are to the following effect: 3. GROUNDS OF APPEAL The learned justice of the Court of Appeal erred in law when they held that the doctrine of estoppel by conduct is not applicable in the instant appeal. PARTICULARS OF ERROR 1. The respondent accepted a lesser amount as full and final payment under the contract pursuant to a subsequent oral agreement to vary the initial agreement. 2. Acceptance of a lesser amount as full and final payment of a contractual sum is sufficient consideration in law. 3.

The Respondent received the Appellant’s latter of 18/8/2008 forwarding the sum of N1,104,856.18 and the sum of N294,803.8 respectively, being 11% interest rate and 2% penalty for the delay in the transfer of the Respondent’s investment of N616,559,816.02 and a further, N205,581,156.11 which the Respondent accepted unconditionally as full and final payment for the transaction. 4. It was an afterthought. for the Respondent who accepted the above sum in final liquidation of the contractual sum in 2008 to demand for a further balance in August 2010. 5.

The Appellant relied on the impression created by the Respondent by the prolonged silence as an admission by conduct of the subsequent oral agreement to vary the contract, and the Respondent is estopped from asserting the contrary. 6. The Respondent by its conduct altered the Appellant’s position to its detriment having acted on the promise or representation made by the Respondent and same cannot be allowed to revert to previous legal relation as if no such representation was made by it.

GROUND 2 The learned justice of the Court of Appeal erred in law when they held that the Respondent was entitled to N6,000,000 (Six Million Naira) being the cost of prosecuting the suit at the trial Court. PARTICULARS OF ERROR 1. No material was placed before the Court below to entitle the Respondent to Six Million Naira cost of prosecuting the case. 2. Costs are not imposed to punish the losing party but are given by law as indemnity to the successful party. GROUND 3 The entire judgment in issue is against the weight of evidence. PARTICULARS OF ERROR 1.

From the evidence adduced, a clear case of estoppel by conduct was made out by the Appellant. 2. The judgment is an affront to the well established principle of estoppel by conduct and/or standing by. 3. The Court below did not properly evaluate the evidence of admission by conduct duly established by the Appellant. 4. It is not automatic in law that oral evidence cannot be used to vary documentary evidence. Additional grounds may be filed when the judgment of the Court below is collected. 5.

RELIEFS SOUGHT AT THE SUPREME COURT (a) An order of this Honourable Court allowing the appeal and affirming the decision of the trial Court, and setting aside the judgment of the Court of Appeal. (b) Such further order(s) as this Honourable Court may deem fit to make in the circumstance of this appeal. PARTICULARS OF ERROR

​Firstly, on ground 1 of the Notice of Appeal, it is not in doubt as aptly posited by the Appellant, the complaint therein is that the Court below erred in law when it held that the doctrine of estoppel by conduct is not applicable. Grounds 1 equally raises the question of whether or not the Court below considered Section 151 of the Evidence Act 2011 on estoppel before arriving at its decision.

A critical albeit dispassionate perusal of the six particulars of Ground 1 would reveal that the Appellant’s ground essentially revolves around the complaint that the Court below misunderstood the law on estoppel and resultantly wrongly ascribed probative value or proper weight to the evidence on record. See ENTERPRISE BANK LTD VS. AROSO (2014) 3 NWLR (pt. 1394) 256 @283; NJC VS. AGUMAGU (2015) 10 NWLR (pt. 1467) 365 @ 403.

Indeed, the law is well settled beyond per adventure, that a ground of appeal which does not dispute the facts but merely raises legal conclusions thereby, arising the alleged admitted, is qualified to be construed or deemed as a ground, the fact that some of the particulars supplied there upon bear semblance of facts. See OKEDARE VS. ADEBARA (1994) 6 NWLR (pt. 349) 157 @ 179 paragraphs B- G.

In the circumstance, Ground 1 ought to be, and it is hereby upheld to be a ground of law and competent.

​Secondly, ground 2 of the Appellant’s Notice of Appeal vis-à-vis paragraph (b) of the particulars of errors thereof, have questionably raised the issue of evaluation or findings of facts on some material question arising therefrom. Thus, the second ground al best raises issues of mixed law and facts, thereby requiring leave of Court prior to raising same.

The law is well settled, beyond per adventure, that any appeal to the apex Court from the decision of the Court below on questions of facts or of mixed law and facts is beyond the contemplation and purview of Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Thus, for such an appeal (on issue of valid competence), the leave of either the Court below or this Court must be sought and obtained. See ERISI VS. IDIKA (1987) 4 NWLR (pt. 66) 503; NALSA AND TEAM ASSOCIATES VS. NNPC (1991) 10-12 SC 83; (1991) 8 NWLR (pt. 212) 652; ALLANAH VS.

KPOLOKWU (2016) 6 NWLR (pt. 1507) 1 @ 52-53 paragraphs G-H. ​Thirdly, ground 3 is unarguably an omnibus ground of appeal, which fundamentally raises a question of facts only, thereby requiring the necessary leave of Court by virtue of the provision of Section 233 (3) of the 1999 Constitution (supra). See OJEMEN VS. MOMODU (supra) per Obaseki, JSC @205 paragraphs C-E; AKIWIWU MOTORS LTD VS. SONGONUGA (1984) 1 ALL NLR 309. Most particularly, in the latter case of AKIWIWU MOTORS LTD VS.

SONGONUGA (supra), this Court aptly reiterated the fundamental trite doctrine: “It is clear to me the first ground of appeal is a ground of facts and to put it at its best the 2nd ground of appeal is mixed question of law and facts… that being the case, and since no leave has been obtained in accordance with Section 213 (3) of the Constitution, the appeal is incompetent.” Per Bello, JSC (as he then was) @ 310. See also OPUIYO VS. OMONIWARI (2007) 16 NWLR (pt. 1060) 415, per Chukwumah- Eneh, JSC @ 444 paragraph F.

​In the circumstances, I uphold the Respondent’s preliminary objection and strike out incompetent Grounds 2 and 3 of the Notice of Appeal. A fortiori, the said issues 2 and 3 of the Appellant’s Amended brief, distilled from the said incompetent Grounds 2 and 3, ought to be and same are equally struck out for incompetence. Undoubtedly, the implication of striking out of the Grounds 2 and 3 and issues 2 and 3, is that the appeal ought to be determined on issue 1 (distilled from Ground 1) only. And I so hold.

ISSUE NO. 1 As copiously alluded to above, the first issue raises the question of whether or not the agreement of the parties in writing as to the payments of annual and daily penalty interests was varied orally, thereby estopping the Respondent from demanding interests as provided in the agreement between the parties. Apparently, the Respondent’s issues (a) and the Appellant’s issue No. 1 are not at all mutually exclusive.

The finding of the Court below, which forms the very basis of the first issue under discussion, could be found at pages 322-323 of the Record of Appeal, viz: In the instant case, the Respondent has not suffered nor was there any type of Appellant’s delay in demanding the balance payment of 2% daily default interest. The doctrine of estoppel is not applicable to this case. The defence of estoppel by conduct does not avail the Respondent of its liabilities under written agreements.

The Respondent shall not be allowed to resile from the written agreement he willingly entered into with the Appellant. Issue one is resolved in favour of the Appellant. It was posited by the Appellant (page 3 Appellant’s brief). that the Court below arrived at the aforementioned decision without properly evaluating the evidence and Appellant’s submissions placed before the Court.

Instructively, it is trite that in a plethora of cases reiterated the fundamental principles regarding estoppel. It was aptly posited by this Court in JACOB OYEROGBA VS. EGBEWOLE OLAOPA (1998) LPELR-SC.300/1990: Estoppel is now more than (a) rule of practice and it can rightly be described as substantive rule of law. There is estoppel where a party is precluded from saying a certain statement of fact is untrue whether in reality it is true or not.

Estoppel, in nature, is a conclusion creating a disability precluded from contending or proving in any legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. There are four kinds of estoppel, viz: Estoppel by matter of record, estoppel by deed, estoppel in pais, and promissory estoppel: Per Belgory, JSC (as he then was). In the case of FRED-EGBE VS. THE HON. JUSTICE J. A.

ADEFARASIN (1987), /SC/; (1987) ALL NLR; (1987) LPELR-1032 (SC), it was posited by this Court that estoppel is but an integral part of the law of evidence: It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: In estoppel is thus either a mine layer or mine sweeper: It is never a capital unit. Normally an estoppel ought to be pleaded by the party relying on it. Per Oputa, JSC @ 34-35 paragraphs G-A.

Thus, by operation of the veritable rule of estoppel, a person ought not to be allowed to blow hot and cold, to affirm at one time and deny at another time. That’s to say, to approbate and reprobate. Indeed, he should not be permitted to mislead another person into believing a state of affairs, only to turn around to deny the existence of such state of affairs to the disadvantage of that other person. See CANE VS. MILLS (1862) 7 H & N 913 @ 927-928. Dealing generally with the doctrine of estoppel in the case of JOE IGA VS.

AMAKIRI (1976) 11 SC 1, this Court aptly held @ 12 – 13: If a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and act upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him. who so believes and acts, the first is estopped from denying the existence of such a state of facts.

Per Nnaemeka-Agu, JSC @ 27 paragraphs A-G. See also CAINCROSS VS. LORIMER (1860) 3 LT 130; RAMSDEN VS. DYSON (1866) L.R.I. HL 129; MOREYO VS. OKIADE 8 WACA 46 @47-48; YUSUFF VS. DADA (1990) 7 SC (pt. 11) 18; (1990) NWLR-3538 (SC). UGHUTEVBE VS. DR. SHONOWO (2004) 18 NSCQR 7111, (2004)16 NWLR (pt. 899) 300; (2004) LPELR -3317 (SC).

​In the instant case, the Respondent (as plaintiff) contends that the agreement between the Appellant herein (as Defendant) was duly entered and reduced in to writing as captured in Exhibits P1, P2, P3, P4, P5 and P6, respectively (pages 12-19 of the Record of Appeal). Paragraphs 3, 4, 5, 6, 7 and 8 of the Respondent’s statement of claim (pages 4 & 5 of the Record) were alleged to have been uncontroverted and admitted by the Appellant at paragraph 2 of the statement of Defence thereof (page 75 of the Record): 2. “The Defendant admits paragraphs 1, 2, 3, 4, 6, 7 and 8 of the statement of claim”

Now, the said paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Respondents of 2 of the Appellant’s slate of Defence copiously alluded to above are to the following effect: 1. The plaintiff is a Federal Government parastatal established by an Act of the National Assembly and carries on banking business with the defendant. 2. The defendant is a duly registered company that carries on business of banking. 3. That by a letter dated 19th May 2008, the plaintiff applied to roll-over the sum of N205,581,156.11 in the defendant’s bank for a fixed term of 31 days. 4.

That the effective date of the placement was 23/5/2008 while due date is 23/6/2008 at an interest rate of 11% per annum and 2% penalty per day on default. 5. That the placement and the terms were accepted by the defendant vide a rollover advice no 0828988 which was received by the plaintiff on the 27/6/2008. Plaintiff shall rely on the rollover advice during trial. 6.

That the plaintiff rolled over another sum of N616,559,877.02 for a fixed tenor of 30 days at an annual interest rate of 11% with effective date being 26/5/2008 and due date being 25/6/2008 with 2% penalty per day on default in payment Plaintiff shall rely on this letter during trial. 7. That the defendant accepted the placement and the terms vide a rollover advice No. 0828991 received by the plaintiff on the 27/05/08 plaintiff shall rely on the Rollover Advice. 8.

That on the 18th of June 2008, plaintiff wrote to the defendant reminding them of the due dates which is 23/06/2008 for the placement of the N205,581,156.11 and another letter dated 18/06/08 reminding them that the placement will be due on 25th June 2008 for the N616,559,877.02 placements and the bank where the proceed should be paid into. Plaintiff shall rely on this letter.

​Consequent upon the due dates for the payment of the sums as per the agreement of the parties, the Respondent wrote Exhibits P5 and P6, thereby nominating bank accounts into which the monies should be remitted by the Appellant. See Exhibits P5 & P6 (pages 16 and 17 of the Record) dated 18/6/2008.

The Appellant deemed it expedient to unilaterally annualize all the payments and thereby paid only the sums of N1,104,856.18 and N294,803.8, which according to the Respondent were far below the actual interests due as per the agreement and Respondent’s demands.

It was the Respondent’s argument, that since the contract between the respective parties was entered into in writing, as shown in Exhibits P1-P6, then the tenor and terms of such a contract can only be read and known from the contents of the said documents. Reliance is placed upon Section 128 (1) (b) (c), (d), (e), (2), & (3) of the Evidence Act.

Contrariwise, however, the Appellant vehemently posited (paragraph 4.03 of the brief thereof) thus: 4-03. It is not in dispute my Lords, that there was an express agreement that regulated the transaction between the two parties, but this agreement was varied after the Appellant met with two officials of the Respondent as to the mode of payment of interest and penalty in the transaction under reference. This explains why the Respondent did not complain after the Appellant paid 11% interest on the investment and 2% penal the vide a business letter to the Respondent did not reply.

It was against the back-drop of the following scenario that warranted the Court below to hold (at 322 of the Record), rightly in my view that: In the facts relating to this appeal, there is no convincing evidence that there were verbal or oral negotiations to a written agreement between the parties. The fact the Appellant did not immediately request for the balance of the penalties calculated as per daily default does not amount to a waiver of the balance.

The Court below equally found and held at pages 323-324 of the Record: Consequently, the Appellant having succeeded on issue one, he is entitled to reliefs (i) and (ii) of his claim reproduced, inter alia at the commencement of this judgment. The Respondent, in its brief of argument was silent and did not contest reliefs (iii) (iv) and (v) of the Appellant’s claim. They are therefore denied admitted.

In the circumstances, the only surviving issue 1 ought to be, and it is hereby resolved against the Appellant.

Hence, against the backdrop of the determination of the surviving issue 1 against the Appellant, the appeal resultantly fails, and it is hereby dismissed by me.

The judgment of the Court of Appeal, Abuja Judicial Division delivered on 24/02/2015 in Appeal No. CA/A/673/2013, is hereby affirmed.

The Respondent shall be entitled to N1,000,000.00 as costs against the Appellant.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the opportunity of reading in draft, the judgment of my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit.

I agree with His Lordship that Ground 1 is the only valid ground of appeal in the Appellant’s notice of appeal filed on 12/3/2015 found at pages 331-333 of the record, being a ground of law for which no leave is required. Ground 2 is a ground challenging the award of costs i.e. the exercise of discretion of the lower Court in affirming the award of costs by the trial Court. It is a ground of fact.

Ground 3, the omnibus ground of appeal, is also a ground of fact, which, pursuant to Section 233(3) of the 1999 Constitution, as amended, can only be filed with the prior leave of this Court or the Court below. In the absence of the requisite leave, the said grounds of appeal and the issues predicated thereon are incompetent and hereby struck out. The sole issue for determination in this appeal therefore, is issue 1 predicated on Ground 1, which challenges the finding of the Court below that the defence of estoppel by conduct did not avail the appellant in the circumstances of this case.

My learned brother has comprehensively considered and ably resolved this issue in the lead judgment. My comments are to show my support and for emphasis.

The parties are ad idem that the agreement between them was reduced into writing and embodied in Exhibits P1, P2, P3, P4, P5 and P6 respectively. The contention of the Appellant was that there was a subsequent oral agreement between them to the effect that a penalty of 2% daily interest, payable in the event of default by the Appellant, was annualized. In other words, that it was agreed orally that interest would be calculated per annum and not daily as provided for in the written agreements.

The Appellant was unbale to provide proof of the said oral agreement but relied on the defence of estoppel by conduct in contending that the Respondent had accepted payment of the penalty at the annualised rate and could therefore no longer insist on the daily rate.

The law of evidence is quite clear that a contract which is required by law to be in writing can only be varied by an agreement in writing.

See Section 128(1) of the Evidence Act, which provides: “128(1) When any judgment of any Court or any other judicial or official proceedings or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property, except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act, nor may the contents of such document be contradicted altered added to or varied b oral evidence.” (Emphasis mine) ​Sub paragraphs (b) and (d) provide thus: “Provided that any of the following matters may be proved- (b) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. (d) The existence of any separate distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property.” The appellant failed to show that any of the exceptions to the general rule applied to the contact between the parties.

Sub-section (d) of Section 128(1) of the Evidence Act requires proof of a distinct subsequent oral agreement. The fact that the Respondent accepted the amount paid to it without more, cannot constitute proof of a subsequent oral agreement to vary the terms of their written contract.

​The parties, in their freedom to contract, are deemed to intend to be governed by the terms of their contract. They are not permitted to adduce oral evidence to establish terms extrinsic to and to vary the terms agreed upon. See: Atiba Iyalamu Savings & Loans Ltd. Vs Suberu & Anor (2018) 13 NWLR (Pt.1637) 387; (2018) LPELR-44069 (SC) @ 49-51 G-A; Larmie Vs Data Processing & Maintenance Services Ltd. (2005) 12 SC (Pt.1) 93; (2005) LPELR-1756 (SC) @ 17 B-C; Baker Marine (Nig) Ltd Vs Chevron Nig. Ltd. (2006) 13 NWLR (Pt.997) 276 @ 287-288.

​Furthermore, it is a settled principle of law that parties are bound by their agreements freely entered into and will not be permitted to resile therefrom. This is the essence of the doctrine of sanctity of contract. See: Babatunde & Anor Vs Bank of the North Ltd. & Ors (2011) LPELR-8249 (SC) @ 21 B-F; AG. Rivers State Vs A.G. Akwa Ibom State & Anor (2011) 3 SC 1; (2011) – 633 (SC) @ 22 E-F.

Where the terms of a contract are clearly expressed in a written document or documents, the Court cannot go outside those terms to ascertain the intention of the parties. See: Union Bank of Nigeria Plc Vs Ajabule & Anor. (2011) LPELR-8239 (SC) @ 39 C-9. The Court below was therefore correct when it held that the judgment of the learned trial Judge was based on speculation. For these and the more elaborate reasoning in the lead judgment, I join my learned brother in dismissing the appeal for lacking in merit.

The judgment of the Court below is hereby affirmed. I abide by the award of costs as contained in the lead judgment. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ibrahim M. M. Saulawa, JSC just delivered. I agree that there is no merit in this appeal and deserves an order of dismissal. I adopt both the reasons and conclusions in the lead judgment as I have nothing new to add. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive. Appeal Dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, the judgment written by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JSC with whom I am in agreement with the reasons adduced and the conclusion contained thereat, that this appeal lacks merit and ought to be dismissed. My Noble Lord has quite admirably resolved the only surviving issue distilled for the determination of this appeal.

​I am in entire agreement with the reasoning and conclusion arrived at, by my learned brother IBRAHIM M. M. SAULAWA, JSC that this appeal is lacking in merit. The appeal is therefore dismissed by me.

I endorse the decision of the Court of Appeal, Abuja Division, delivered on 24/02/2015.

I abide by the consequential order(s) (if any) contained in the lead judgment, including the order as to cost. Appeal dismissed.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, Ibrahim Mohammed Musa Saulawa, JSC granted me the privilege of having a preview of the comprehensive leading judgment prepared and rendered in this appeal.

​I am in total agreement with the lucid reasoning and conclusion and join in holding that the appeal is devoid of merit and deserves to be dismissed, it is hereby dismissed. I endorse all consequential orders including the order on costs.