Breach of Contract

Before Their Lordships

…………………….A…………………….

Before Their Lordships

…………………….A…………………….

Plaintiff/Appellant claimed a declaration that he is still “the Operation Manager of the 1st Defendant/Company.”

…………………….T…………………….

What is intriguing in this case is that the 2nd and 3rd Defendants have the power and the right under EX.D1 to terminate the appointment of the Plaintiff/Appellant by giving him one month’s Notice or paying one month’s salary in lieu thereof. They in fact paid him 3 months salary and gave him (the Appellant) all his entitlements. The Respondents were very generous to the Appellant and it is a generosity which the Appellant could neither appreciate nor even deserved. I do not see anything in the facts and circumstances of this case to support a claim for “unlawful threatened breach of contract.” or more elegantly for an anticipatory breach of contract.”

This was a contract of service where each party can give the opposite party due notice to end the contact. An anticipatory breach of contract occurs if before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it or acts in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfil his part, or disables himself from doing so. It is then that it can be said that their has been an anticipatory breach of contract. Lord Esher, M.R. very eloquently stated the doctrine of anticipatory breach in Johnstone v. Milling (1886) 16 Q.B.D. 460. From its definition and the judicial pronouncements on the doctrine of anticipatory breach, it is quite clear that the doctrine does not apply to the facts and circumstances of this case. For one thing the Appellant was already in employment as Operations Manager and again he had no intention of treating the contract as at an end. He wanted to continue as Operations Manager until he attained the age of 60 years “unless the appointment be terminated for gross misconduct or complete inefficiency after several written warnings” (see paragraph 5 of the Statement of Claim).

The Plaintiff/Appellant in paragraph 5 of his Statement of claim concedes that his contract or his appointment a Operations Manager is not in perpetuity but that it can be terminated. It was terminated what can only arise is the question whether that termination was lawful or unlawful. The Court of Appeal held, and rightly too, that the termination was lawful. That should be the end of the matter.

In the final result, for all the reasons given above and or the fuller reasons in the lead Reasons for Judgement of my learned brother Obaseki, J.S.C. which I adopt as mine, this appeal ought to be dismissed. It was for all those reasons that I on the 30th day of June, 1987, did dismiss the appeal.

Bello, CJN. I have read in advance the reasons for judgment just delivered by my learned brother, Obaseki J.S.C. which I adopt as mine.

Appearances

Mr. Kayode Sofola For the Appelants

Mr. George Nicol For the Respondents

Before Their Lordships

---

Between

MTN NIGERIA COMMUNICATION LTD – Appellant(s)

AND

CORPORATE COMMUNICATION INVESTMENT LTD – Respondent(s)

……………………………A……………………………

……………………………B……………………………

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant and the respondent herein, entered into a contract on 1/10/2007 wherein the appellant was contracted to provide security for the respondent’s headquarters at NNPC Towers Abuja, Kaduna Depot, Zaria Depot and Zaria Pump stations respectively. The respondent however terminated the contract on 31/01/2014. The appellant was aggrieved and instituted an action before the High Court of the Federal Capital Territory (FCT) seeking the following reliefs: “1.

An order directing the defendant not to terminate the security agreement unless in accordance to the terms of agreement dated 1st day of October, 2007. 2. A perpetual order restraining the defendant from acting on its letter of termination of the security contract for the plaintiff to provide security guards at the defendant’s Kaduna Depot and Zaria Pumping station. 3. An order that the purported letter of termination of contract of security between the parties amounts to a breach of contract. 4.

The plaintiff claims the sum of Twenty Million Naira (N20,000,000.00) from the defendant for breach of contract. 5. The cost of this suit.”

The respondent, upon receipt of the Writ of Summons, Statement of Claim and accompanying documents, filed a notice of preliminary objection challenging the competence of the suit for failure of the appellant to serve one month’s pre-action notice, contrary to Section 12(2) of the Nigerian National Petroleum Corporation (NNPC) Act Cap. N.23, Laws of the Federation of Nigeria (LFN) 2004. In a considered ruling delivered on 5/3/2014, the preliminary objection was overruled on the ground that the Pipelines and Products Marketing Co.

Ltd. is not a wholly owned subsidiary of NNPC and therefore does not fall within the purview of Section 12(2) of the NNPC Act requiring pre-action notice. Consequently, the Court assumed jurisdiction.

The respondent, being dissatisfied with the ruling appealed to the Court below. Allowing the appeal, the Court held, inter alia: Having regard to the fact that the appellant is a corporate subsidiary of NNPC, as can be discerned by the respondent’s Statement of Claim, the respondent’s witness statement on oath, the agreement between the parties and the respondent and the affidavit in support of the appellant’s notice of preliminary objection, the appellant is entitled to be served a pre-action notice as provided for by Section 12(2) of the NNPC Act.

By the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a pre-condition to the competence of the action has not been complied with. The respondent’s action is therefore premature and it is liable to be struck out …Consequent, the respondent’s action with suit No, FCT/HC/CV/160/2014 is hereby struck out for lack of jurisdiction.”

It is the appellant who is now aggrieved. Its notice of appeal filed on 31/10/2015 can be found at page 160-163 of the record. It contains 4 grounds of appeal.

​At the hearing of the appeal on 2nd November 2021, E.J. ESENE ESQ adopted and relied on the Appellant’s brief filed on 23/12/2015 and its Reply brief filed on 4/8/2016, both deemed filed on 2/11/2021, in urging the Court to allow the appeal. M.E. ORU ESQ. drew the Court’s attention to Notice of Preliminary Objection filed on 2/3/2016 and deemed filed on 8/2/2017, which is also incorporated in the Respondent’s brief filed on 29/2/2016 and deemed filed on 8/2/2017.

He adopted and relied on the preliminary objection in urging the Court to strike out the appeal, or alternatively, to dismiss the appeal on the merits based on the arguments therein against the appeal.

The Preliminary objection challenges the hearing of the entire appeal. It must therefore be considered and resolved before delving into the merit of the appeal, should the need arise. The reason is not far-fetched. In the event that the objection has merit, the appeal will be terminated in limine. The grounds of the objection are as follows: 1.

The Notice of Appeal filed on 31st August, 2015 was not signed by any of the solicitors named therein but signed for the solicitor by a person who neither indicated his name and designation nor known to be a legal practitioner contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. L11 LFN 2004. 2. The Notice of Appeal as shown at pages 160-163 of the Record is not stamped and sealed with the stamp of the Legal Practitioner who signed it contrary to Rule 10(1) of the Rules of Professional Conduct, 2007 made pursuant to the Legal Practitioners Act Cap.

L11 LFN 2004. 3. All the grounds of appeal are grounds of mixed law and facts and leave of Court was not sought and obtained before filing, thus rendering the grounds null and void.

On the first ground of objection, learned counsel for the respondent observed that the Notice of Appeal was not signed by any of the counsel stated at page 163 of the record. He noted further that there is a signature above the name Emmanuel Esene Esq. with the letters “PP” written beside the name, signifying that someone signed on behalf of Emmanuel Esene. He submitted that there is nothing to show that the person who signed for Emmanuel Esene Esq. is himself a legal practitioner as provided for in Sections 2(1) and 24 of the Legal Practitioners Act.

He submitted that the letters “PP” stand for “per procurationem” meaning “by authority” or “representing” in Latin.

​He submitted that all legal processes must be signed by identifiable legal practitioners whose names are on the roll of Legal Practitioners at the Supreme Court. He submitted further that being the foundation or substratum of an appeal, any defect in the Notice of Appeal will render the appeal incompetent and the Court would lack the requisite jurisdiction to entertain it. He referred to: Uwazurike Vs A.G.

Federation (2007) ALL FWLR (Pt.367) 834 @ 846; Shellim Vs Gobang (2009) ALL FWLR (Pt.496) 1866 @ 1880- 1881; Tukur Vs Government of Gongola State (1988), NWLR (Pt. 68) 39; Okafor Vs Nweke (2007) ALL FWLR (Pt.368) 1016 @ 1025-1027; (2007) 1 NWLR (Pt.1043) 521.

On the importance of it being clear who signed a process and the identity of such person as a Legal Practitioner whose name is on the roll of Legal Practitioners in Nigeria, he referred to Ministry of Works & Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt.1351) 481; (2013) ALL FWLR (Pt.694) 23 @ 36 F-H; SLB Consortium vs NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 – 338, and a host of other authorities.

​On the second ground of objection, learned counsel submitted that there was non-compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, in that the person who prepared the Notice of Appeal did not affix his stamp and seal thereto. He submitted that the provision is mandatory and therefore legal practitioners are not afforded any discretion in the matter. On the effect of the word “shall” when used in a statute, he referred to Okereke Vs Yar’adua (2008) 12 NWLR (Pt.1100) 95 @ 127 F – G; Ugwu Vs Ararume (2007) ALL FWLR (Pt.377) 807 @ 857 C – F.

He argued further that where the law prescribes the procedure for doing a particular thing, the prescribed procedure must be complied with. He referred to: Dongtoe Vs CSC Plateau State (2001) ALL FWLR (Pt.50) 1637 @ 1663A; Amaechi vs INEC (2008) ALL FWLR (Pt.407) 1 @ 98 C – D. On the need for a legal practitioner to comply with the directives of the Nigerian Bar Association (NBA), he referred to: Chinwo Vs Owhonda (2006) 2 NWLR (Pt.1074) 341.

On the third ground of objection, learned counsel submitted that the grounds of appeal before this Court question the evaluation of facts established before the trial Court and are therefore grounds of mixed law and fact, for which prior leave of this Court or the Court below ought to have been sought or obtained, in accordance with Section 233(3) of the 1999 Constitution, as amended. He referred to: Opuiyo Vs Omoniwari (2007) ALL FWLR (Pt.378) 1093; Oluwole Vs LSDPC (1983) SC 1; Adejumo Vs The State (1983) 5 SC 24; Ogbechie Vs Onochie (1986) 1 NWLR (Pt.23) 484 @ 491.

He submitted that having failed to obtain leave, the grounds of appeal are liable to be struck out. He cited several authorities, including Njemanze Vs Njemanze (2013) 203 MJSC (Pt. II) 30 @ 59 – 60; Oforkire Vs Maduike (2003) 5 NWLR (Pt.812) 166; Oluwole Vs LSPDC (supra). He urged the Court to uphold the objection and strike out the appeal.

In response, learned counsel for the appellant reiterated the well settled principle that only a person whose name appears on the roll of Legal Practitioners at the Supreme Court and who is eligible to practice law as a barrister and solicitor, can sign a Court process. He submitted that in the instant case, the “PP” appearing beside the name Emmanuel Esene, Esq. at page 163 of the record, means “principal partner” and not “per procurationem” in Latin, as asserted by learned counsel for the respondent.

He submitted that the process was signed by Emmanuel Esene, Esq., who is the principal partner in the law firm of Emmanuel Esene & Co.

​He urged the Court to compare the signature with the one appearing at particular pages of the record, which he argues, are the same. On the manner in which a process should be signed by a legal practitioner, he referred to: Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570. He submitted that the appellant’s counsel fully complied with the requirements. He referred to Nigerian Army Vs Samuel (2013) 14 NWLR (Pt.1375) 460; FBN Plc Vs Maiwada (2013) 5 NWLR (Pt.1348) 444; Okafor Vs Nweke (supra); SLB Consortium Vs NNPC (supra) and urged the Court to hold that the notice of appeal is competent.

On the failure to affix learned counsel’s stamp and seal to the notice of appeal, he submitted that the said notice of appeal, dated 27/7/2015 was filed on 31/8/2015 prior to the decision of this Court in SC.22/2015: Yaki & Anor Vs Bagudu, delivered on 13/11/2015, where it was held that the affixing of their stamp and seal on legal processes by Legal Practitioners is mandatory. He submitted that prior to the decision, compliance was not strictly enforced. On this issue, he urged the Court to lean in favour of substance and not technicalities.

​On the competence of the grounds of appeal, he submitted that they are grounds of law alone and not grounds of mixed law and fact, as contended by the respondent’s counsel. He submitted that all the grounds of appeal are seeking the interpretation of Sections 12(2) and 22(1) of the NNPC Act and therefore do not require leave. On how to determine whether a ground of appeal is a ground of law alone or one of mixed law and facts, he referred to Ekunola Vs C.B.N. (2013) 15 NWLR (Pt.1377) 244; Jim-Jaja Vs C.O.P.

Rivers State (2013) 6 NWLR (Pt. 1350) 225 B – C; NNPC Vs Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 and several other cases in urging the Court to dismiss the preliminary objection.

Resolution of the Preliminary Objection Sections 2(1) and 24 of the Legal Practitioners Act provides as follows: 2. (1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. 24.

In this Act, unless the context otherwise requires, “legal practitioner” means a person entitled to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceeding.” These provisions have been interpreted in a plethora of decisions of this Court to the conclusive effect that only a legal practitioner whose name is on the roll of legal practitioners at the Supreme Court, is competent to sign legal processes. See: Okafor Vs Nweke (2007) All FWLR (Pt.368) 1016; (2007) 1 NWLR (Pt.1043) 521; SLB Consortium Ltd.

Vs NNPC (2011) 9 NWLR (Pt.1252) 317; (2011) 4 SC 86; FBN Plc vs Maiwada (2013) 5 NWLR (Pt.1348) 444; SPDC vs Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt.1514) 318, to name just a few. In SLB Consortium Ltd. Vs NNPC (supra), His Lordship, Rhodes-Vivour, JSC, held, inter alia: “What then is so important about the way counsel chooses to sign processes? Once it cannot be said who signed a process, it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act).

All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm. In this case, there is signature of counsel but no name of counsel. A signature without a name is incurably bad.” (Underlining mine)

The notice of appeal in the instant appeal can be found at pages 160 – 163 of the record. At the top of page 163 there is a contraption above the name Emmanuel Esene Esq. The letters “pp” are handwritten beside the name Emmanuel Esene Esq. Beneath Emmanuel Esene Esq., is another name, Peace Ojemen (Miss). The next line states Emmanuel Esene & Co., followed by “Counsel to the Appellant” and the address of Emmanuel Esene & Co. The bone of contention is “who signed the process?” The contraption above Emmanuel Esene & Co. is indecipherable.

One must therefore move to the next line to determine the owner of the signature and to ascertain that it belongs to a legal practitioner whose name is on the roll as required by the Legal Practitioners Act.

​The letters “pp” when placed before a name on a document, are an abbreviation of the Latin term “per procurationem” or “per pro.” It is universally known to be used when signing a letter or document on someone else’s behalf. Black’s Law Dictionary, 8th Edition page 1177 defines “per procurationem”, “per pro” or “pp” to mean “By Proxy.” Osborne’s Concise Law Dictionary, 8th Edition at page 246 defines it to mean “as an agent”, “on behalf of another.”

“pp Emmanuel Esene Esq.” means the contraption or signature above that name belongs to an unidentified person who signed the document on Emmanuel Esene’s behalf. For the process to be competent, it must be shown that the person who appended his signature on behalf of Emmanuel Esene Esq. is himself a person who is entitled to practice as a legal practitioner in Nigeria and whose name is on the roll in compliance with Sections 2 (1) and 24 of the Legal Practitioners Act.

There is no such indication on the process. ​Learned counsel for the appellant has ingeniously argued that “pp” means Principal Partner. I say ingeniously because, if indeed that were the case, the words would have been written in full and would have appeared immediately beneath the name of the said principal partner. On the face of the process as it stands, the notice of appeal was signed by an unknown person on behalf of Emmanuel Esene Esq. It is incurably defective. In R.A. Oliyide & Sons Ltd.

Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt.1622) 549; (2018) LPELR-43711 (SC) @ 30 – 31 D – F, this Court per Sanusi, JSC, held: “It seems to me that the issue at hand relates to the non-signing of a process by a legal practitioner, which is purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court, which can be waived as a mere irregularity. I do not share that view of his.

This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named legal practitioner as opposed to an unknown proxy who is obviously not a legal practitioner known to law.”

A notice of appeal is an originating process. It is the foundation/substratum of any appeal. Any defect therein deprives the Court of jurisdiction and vitiates the appeal. See: Madukolu vs Nkemdilim (1962) 2 NSCC 374; Nigerian Army Vs Samuel & Ors. (2013) 14 NWLR (Pt.1375) 466; (2013) LPELR-20931 (SC) @ 17 – 18 F – C; Uwazurike & Ors. Vs A.G. Federation ​(2007) LPELR-3448 (SC) @ 14 D – F; Ikuepenikan Vs The State (2015) 9 NWLR (Pt.1465) 518; (2015) LPELR-24611 @ 48 A- D.

The first ground of objection is resolved in the appellant’s favour. Having held that there is nothing to show that the person who signed the notice of appeal per pro Emmanuel Esene Esq. is an identifiable legal practitioner and that the notice is accordingly incompetent, the issue of affixing the unknown legal practitioner’s stamp and seal to the process in compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, becomes otiose.

The final ground of objection is the competence or otherwise of the grounds of appeal. While the respondent contends that all the grounds of appeal raise questions of mixed law and fact, for which leave is required pursuant to Section 233 (3) of the 1999 Constitution, as amended, learned counsel for the appellant asserts, relying on Section 233 (2) of the Constitution, that the grounds are grounds of law alone for which no leave is required.

Section 233 (2) (a) and (3) of the 1999 Constitution, as amended, provides: 233 (2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal. (3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.” In the case of: Ogbechie Vs Onochie (1986) LPELR – 2278 (SC) @ 8 C – E, His Lordship, Eso, JSC, provided a guideline for determining whether a ground of appeal is one of law alone or of mixed law and fact, to wit: “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact.

The issue of pure fact is easier to determine.” In Chrome Air Services Ltd. & Ors. Vs Fidelity Bank (2017) LPELR-43470 (SC) @ 23 – 24, His Lordship, Nweze, JSC referred to an earlier decision of this Court in ACB Plc. Vs Obmiami Brick & Stone Nig. Ltd. (1993) LPELR – 206 (SC) @ 27 E – F, to wit: “It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law.

Where, on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion.” See also: The State Vs Omoyele (2017) 1 NWLR (Pt.1547) 341; Global West Vessel Specialist Nig. Ltd. vs NNLG Ltd. & Anor. (2017) 1 – 2 SC (Pt. II) 39; (2017) LPELR-41987 (SC) @ 27 – 28 F – D; Fasuyi & Ors. Vs PDP & Ors. (2017) LPELR-43462 (SC) 32 B – D.

It is also trite that the mere labeling of a ground of appeal as a ground of law does not make it so. The Court must examine the grounds along with their particulars in order to make a proper determination of the issue. See: Nwadike & Ors. Vs Ibekwe & Ors. (1987) 12 SC 14; Brittania-U Nig. Ltd. vs Seplat Petroleum Devt. Co. Ltd. & Ors (2016) LPELR – 40007 (SC) @ 52 – 54 E – A; Briggs Vs C.L.O.R.S.N. & Ors. (2005) 4 SC 89; (2005) LPELR-805 (SC) @ 10 C- F.

The four grounds of appeal contained in the Notice of Appeal filed on 31/8/2015 are as follows: Ground One The lower Court erred in law when it held that the Respondent is a corporate subsidiary of the Nigerian National Petroleum Corporation which falls under Section 22 (1) of the NNPC Act 2004 Particulars of Error The respondent failed to prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation.

Ground Two The lower Court erred in law when they held that Section 12 (2) of the Nigerian National Petroleum Corporation Act applies to the Respondent and as such they are entitled to be issued a pre-action notice before instituting the suit against the respondent and failure to do so has made the appellant’s suit premature and liable to be struck out.

Particulars of Error The respondent is a private limited liability company incorporated under Part A of the Companies and Allied Matters Act and not a statutory body as well as not a wholly owned subsidiary of the Nigerian National Petroleum Corporation as claimed by the respondent, without proving same by way of evidence. Ground Three The lower Court erred in law when he held that the appellant’s action with Suit No. FCT/HC/CV/160/2014 was struck out for lack of jurisdiction. Particulars of Error It is trite that one cannot put something on nothing and expect it to stand.

The respondent did not adduce any material evidence to show or prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation for Section 12 (2) of the Nigerian National Petroleum Corporation Act to be applicable. Ground Four The lower Court erred in law when he held that the Nigerian National Petroleum Corporation is itself a corporation it (sic: its) subsidiary corporation is a subsidiary corporation and the use of the word wholly owned subsidiary in Section 22 (1) of the Nigerian National Petroleum Corporation Act is a misnomer and a mere tautology.

Particulars of Error That in accordance to (sic) Section 22 (1) of the Nigerian National Petroleum Corporation Act, before the respondent can be a subsidiary of the NNPC it must be wholly owned. (Underlining Mine)

A careful perusal of the grounds of appeal and their particulars shows clearly that they raise issues of mixed law and facts, as the alleged error of law complained of is founded on disputed facts calling into question the correctness of the facts determined. The facts are in contention to the extent that the appellant is inviting the Court to determine whether the respondent established by evidence that it is a wholly owned subsidiary of NNPC to bring it within the purview of Section 22 (1) of the NNPC Act.

Having failed to obtain the requisite leave of this Court or the Court below before filing the appeal, the notice of appeal filed in breach of Section 233 (3) of the 1999 Constitution, as amended, is incompetent, null and void. It is accordingly hereby struck out.

In light of my several findings above, I find merit in the preliminary objection raised by the respondent. It is hereby sustained. The appeal is hereby struck out for incompetence. Costs of N1 million are awarded against the appellant in favour of the respondent.

EJEMBI EKO, J.S.C.: The question: who signed the Notice of Appeal strikes at the very foundation the appeal is predicated on. The Notice of Appeal appears to have been signed or settled by an unknown proxy of the named Legal Practitioner – Emmanuel Esene, Esq. of Emmanuel Esene & Co. ​There is a hand written prefix- “pp” to the name Emmanuel Esene, Esq. The prefix “pp” suggests prima facie that it was the unnamed and unknown proxy or agent of the said Legal Practitioner Emmanuel Esene, Esq., who signed or settled the said Notice of Appeal.

The contraption clearly renders the Notice of Appeal a suspect document. “Who signed this Notice of Appeal?” is a question of fact. In the Appellant’s Reply Brief, Mr. Esene of Appellant’s Counsel suggests, by way of unverified evidence from the Bar, that “pp” means Principal Partner” and that he is the said Principal Partner. A bare statement from the Bar, unverified, has no force of legal evidence: ONU OBEKPA v. C.O.P. (1980) 1 NCR 113.

Accordingly the said bare statement from the Bar, not having any force of legal evidence, does not satisfy the requirements of Sections 131 & 132 of the Evidence Act, 2011 to the effect that the burden of proof lies on he who asserts the existence of a fact on which depends any legal right he claims to prove that the said fact exists. It is not a notorious fact that the abbreviation “pp” means “principal partner”. On the other hand, the letters “pp” is universally known in law to mean “by proxy”: Black’s Law Dictionary 9th Ed.

Page 1256; Earl Jowitt: The Dictionary of English Law, 1965 second impression at pages 1328 & 1419. Generally, the Court does not know abbreviations and therefore will not rely on its personal information (which may well be mistaken) to venture meanings: RAGO KURA v. C.O.P (1976) NWLR 148 at 149. Thus as Rhodes-Vivour, JSC held in SLB CONSORTIUM LTD v.

NNPC (2011) 9 NWLR (pt. 1252) 317: Once it cannot be said who signed a process, the process is incurably bad. ​The instant Notice of Appeal signed by an unknown and unnamed proxy of Emmanuel Esene, Esq as Appellant’s counsel is incurably defective. I agree with my Lord, K. M. O. KEKERE-EKUN, JSC, in the judgment just delivered that the appeal be, and is hereby struck out for incompetence. I also adopt orders as to costs made therein. Appeal struck out.

MOHAMMED LAWAL GARBA, J.S.C.: I have read a draft of the lead judgment written by my learned brother, K. M. O. Kekere-Ekun, JSC, in this appeal and completely agree with the views that there is merit in the Preliminary Objection raised by the Respondent on the competence of the Notice of Appeal filed by the Appellant on 31st August, 2015, which is at pages 160 – 163 of the Record of Appeal.

A calm look at the Notice of Appeal would easily show that it was signed by an unknown proxy, for Emmanuel Esene, Esq. and not by an identified or even identifiable Legal Practitioner whose name is or can be on the Roll to be entitled to practice as a Barrister or Solicitor, either generally or for the purpose of any particular office or proceeding, as prescribed by the provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act (LPA). ​In all the appellate Courts in Nigeria, a Notice of Appeal is the originating process which is used to invoke the constitutional jurisdiction to hear and determine appeals against the decisions of lower Courts vested in the appellate Courts.

The validity of such a Notice of Appeal is therefore sine qua non to the competence and jurisdiction of the appellate Courts to entertain and adjudicate over the appeals. See Amadi v. Okoti (1972) 7 SC, 57, Olanrewaju v. BON Ltd (1994) 8 NWLR (pt. 364) 622, Uwazurike v. A.G. Federation (2007) 8 NWLR (pt. 1035)1.

A material defect on the Notice of Appeal such as non-compliance with the provisions of the Legal Practitioners’ Act (LPA), as in the present appeal, is fatal and will render it legally invalid and incompetent to be incapable of properly invoking the requisite jurisdiction of the appellate Court. See Dambam v. Lele (2000) 11 NWLR (pt. 678) 413, Abiola v. Olawoye (2006) 13 NWLR (pt. 996) 1, Re: Otuedon (1995) 4 NWLR (pt. 392) 655, FBN Plc v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 247, CBN v. Okojie (2004) NWLR (pt. 882) 488.

In addition, all the four (4) grounds contained on the Notice of Appeal, at best, raise and involve issues or questions of mixed law and facts, which, as a condition precedent for their validity, require the prior leave of either the Court below or this Court by dint of Section 233 (2) (a) and (3) of the 1999 Constitution (as amended). The Notice of Appeal was filed as of right and so the condition precedent for its validity was not fulfilled, thereby rendering it incompetent and depriving the Court of the requisite jurisdiction to entertain and adjudicate over the appeal on the merit.

See Ikweki v. Ebele(2005) 2 SC (pt 11) 96, REAN, Plc v. Anumnu (2003) 6 NWLR (pt. 815) 52, Abalaka v. President, FRN (2012) 5 NWLR (pt. 1292) 102.

The above restatements of the law on the requirements of the Legal Practitioners’ Act (LPA) on the signing of documents to be filed in Court and for leave in respect of grounds of appeal which raise or involve questions of mixed law and facts in this Court, are now common knowledge to require citation of more judicial authorities than referred to in the lead judgment.

For the above and better reasons in the lead judgment, I join in striking out the Notice of Appeal for being grossly incompetent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having previewed, before now, the judgment just delivered by my learned brother the Hon. Justice M.K.O Kekere-Ekun, JSC, I have no hesitation whatsoever, in concurring with the reasoning reached therein, to the effect that the present appeal is grossly incompetent.

Undoubtedly, by failing to seek and obtain the necessary leave of the Court prior to filing the appeal, the notice of appeal filed on 31/08/2015 in blatant contravention of the mandatory provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, is rendered grossly incompetent.

Hence, I too hereby strike out the appeal for incompetence. I abide by the consequential order in regard to costs of N1 million awarded against the Appellant, in favour of the Respondent.

TIJJANI ABUBAKAR, J.S.C.: This appeal is against the decision of the Court of Appeal Abuja Division delivered on the 12th day of June, 2015 in favour of the Respondent in this appeal. The Appellant became aggrieved and therefore brought this appeal.

​The facts grounding the appeal are that, the Appellant herein was providing security for the Respondent in Kaduna and its pipelines pump station in Zaria. The agreement was terminated by the Respondent and the Appellant commenced action at the trial Court challenging the termination.

The Respondent filed preliminary objection contending that the Appellant must serve it pre-action Notice being an agency of the NNPC, the trial Court disagreed, the Respondent therefore appealed to the Court of Appeal where the lower Court agreed that it was necessary to serve the Respondent pre-action Notice and therefore struck out the action for incompetence. The Appellant therefore lodged an appeal before this Court against the decision of the lower Court.

The Respondent filed Notice of preliminary objection contending that the Notice of appeal was not properly signed and the grounds of appeal are grounds of mixed law and facts, the Appellant therefore needed leave of Court to bring the appeal. The learned Counsel for the Respondent therefore argued that the appeal was not initiated by due process.

​My Lord and learned brother, KEKERE-EKUN, JSC who graciously granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal, carefully and meticulously resolved all the issues submitted for determination, I must admit that the resolution of the issues by my lord is in accord with my views, I therefore adopt the Judgment as my own.

I entirely agree that the four grounds of appeal filed by the Appellant are grounds of mixed law and facts, the Appellant ought to have sought for and obtain leave of Court before bringing the appeal, and having failed to do so as required by Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the appeal must be held to be incompetent. Respondent’s preliminary objection is therefore meritorious and is hereby sustained. Appellant’s appeal is accordingly struck out. I also abide by all consequential orders including the order on costs.

Judgment

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is a natural reaction by the Appellant against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on June 12, 2008 in appeal no. CA/L/489/2005.

By the judgment in question, the Court below, coram Ogunbiyi, JCA (as then was), Mshelia and Nwodo, JJCA, dismissed the Appellant’s appeal against the Judgment of the trial High Court delivered on May 19, 2005 (LD/1037/2002), which dismissed in part the Appellant’s claim against the Respondent for outstanding balance of contract sum and damages for breach of contract.

BACKGROUND FACTS The Appellant is a limited liability company having the registered office thereof at 20/22 Adedoyin Street, Ketu, Lagos Slate. On the other hand, the Respondent is a Local Government Council having its Administrative Secretariat al Akodo, Lagos State.

​The genesis of the case leading the to instant appeal is traceable to May 27, 2002. Indeed, that was the day the Appellant instituted the case in the trial High Court, thereby seeking against the Respondent the total sum of N26.5 Million being special and general damages for a stabilization contract awarded to the Appellant In the Respondent.

By the statement of claim, filed along with the writ of summons thereof on the date in question, the Appellant claimed against the Respondent: 1. Particulars of special damages. a. The sum of N20,007076.60 being the balance of the contract sum of N35,007076.60k due to the plaintiff in respect of the stabilization of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State; and b. The sum of N1,500,000.00 being retention fee. 2.

General Damages: The sum of N5,000,000.00 being general loss suffered by plaintiff as a result of the unquantified damages suffered by the failure of the Defendant to pay the whole contract sum as and when due. 2. Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs is fully paid by the Defendant.

The Respondent reacted by filing a statement of defence to the claim, to which the Appellant filed a reply. Pleadings having been filed and exchanged between the respective parties, the suit proceeded to trial. In the course of which, the Appellant called two witnesses and tendered thirteen (13) documentary evidence, which were admitted as exhibits by the trial Court.

Contrariwise, the Respondent called one witness who testified in chief but failed to show up for cross-examination by the Appellant’s counsel.

At the close of evidence, the trial Court deemed it expedient to order for written addresses. Consequent whereupon, the Appellant filed its written address. However, the Respondent, for reason best known thereto, failed to file any written address as ordered by the trial Court.

The trial Court, not unexpectedly, proceeded to deliver the judgment on the said 19/05/2005, to the conclusive effect: I am satisfied on the evidence before me that the claimant has been able to prove on the balance of probabilities, his entitlement to N6 Million being the balance of the 60% first instalment as per Exhibit P 10. The law is trite that the Court can award less but not more than what is claimed if that is what is proved by the evidence

OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (PT. 781) 259 AT 349 citing EKPE V. FAGBEMI (1978)1 LRN 137 at 140. I cannot also on the basis of the evidence before me hold that the claimant is entitled to General damages as claimed as there appears to be outstanding issues between the parties in respect of the work done on the project. The 1st defendant does not even consider the project has been completed. The claimant in this case has sued both the 1st Defendant and its chairman as the 2nd Defendant. The contract agreement here was between the claimant and the 1st Defendant only.

I do not see why the 2nd Defendant had to be joined in this suit. He is not a proper party to this suit and I so hold. For this reasons given in the body of this Judgment therefore, judgment is hereby awarded in favour of the claimant against the 1st Defendant only in the sum with interest at the rate of 10%per annum from today 19th May, 2005 until the Judgment debt is fully paid. The claims for general damages are hereby dismissed. This is the judgment off his Court. N20,000 costs to the claimant.

Not unnaturally, the Appellant, being dissatisfied with the judgment of the trial Court aforementioned, appealed to the Court below.

As alluded to above, the Court below dutifully heard the appeal and delivered the vexed judgment on the said June 12, 2008, to the conclusive effect: On the totality of the appeal before us, the issues are hereby resolved against the appellant and in favour of the respondent. The appeal in the circumstance is devoid of merit and accordingly dismissed. The judgment of the learned trial Judge of the High Court of Lagos State delivered on 19th day of May, 2005 is hereby affirmed. With costs following events, I would award the sum of N30,000 in favour of the respondents.

Appeal dismissed with N30,000.

On 21/09/21, when the appeal at long last came up before us for hearing, the learned counsel had the opportunity of addressing the Court and adopting their respective briefs of argument prior to reserving Judgment to today.

DETERMINATION OF THE RESPONDENT’S PRELIMINARY OBJECTION It’s trite, that the Respondent has had the liberty of raising in the brief thereof (pages 2-12 of the Respondent’s Amended Brief of Argument) a preliminary objection, thereby vehemently challenging the competence of the Appellant’s notice of appeal, to the effect that: The three grounds of appeal contained in the notice of Appeal dated 11th of September, 2008 and the issues/arguments formulated thereon be struck out for being incompetent having not complied with Order 8 Rule 2 (3) (4) of the Supreme Court Rules and/or bad for falsity.

Each of the three grounds of the notice of appeal has been copiously reproduced along with their particulars at pages 4-7 of the Respondent’s brief, viz: Ground 1 Error in Law The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the Contract Agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion the there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on the contrary.

Particulars of Error (i) The contract agreement executed by the parties tendered as Exhibit P5 was very clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of payment/completion certificate, which provisions are binding on the parties, and effect ought to have been given accordingly to them by the Court below. (ii) The Court below was wrong in relying on its own observation from examination of the documents to decide matters which did not the actual evidence on record. (iii) It vas in evidence that the Appellant had performed and complied with all the duties crated on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six-month window for release of final payment, being the third stage of payment, namely payment of the retention fee. (iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondent’ designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued a payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to payment of the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement. (v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as the duly designated agent and on behalf of the Respondents) had upon inspection and due satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment envisaged in clause of the contract agreement, being the third stage payment provided for by Clause 4 of the said contract agreement. (vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works to date being the entire contract works. (vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is the balance, less the retention fee. (viii) The lower Court was therefore in error in failing to hold that Exhibit P8 was the payment certificate issued by the Respondents or their representative, but rather placed reliance on a letter dated 8th March 2002 (Exhibit P10) written outside the six months retention and warranty period provided by Clause 4 of the contract agreement. (ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within the six months window for observation of defects and for retention fee. (x) Extrinsic evidence such as Exhibit P10 ought not be used to vary the contents of a written contract validly entered into by the parties. (xi) The interpretation placed Exhibit P5 and P8 by the learned Justice of the Court of Appeal occasioned a miscarriage of justice.

Ground 2: Error in Law The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record Particulars of Errors: (i) The Appellant had testified and tendered 13 documentary Exhibit in support of its case, particularly the contract document (Exhibit P 5) and the Certificate of Completion from the Respondents (Exhibit P8) (ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as a careful perusal of the pleadings reveals that same was Exhibit P8. (iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below. (iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming, and it was open to the Court to act on such unchallenged and uncontroverted evidence, which was neither inherently incredible nor offended any rational conclusion. (v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works. (vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents’ designated professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant. (vii) The Respondents having issued the completion certificate through their Council Engineer as provided for by the contract agreement are not free to resile therefrom or to disclaim the certificate. (viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellate is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established. (ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on the preponderance of evidence.

Ground 3: Error in Law The learned justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.

Particulars of error (i) The Appellant established that there was a breach of contract, even as the learned trial Judge had found that part of the first stage payment was still being owed the Appellant, that is, the sum of N6 million (ii) The Appellant had also established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents. (iii) The funds of the Appellant had been tied down since 2001 as a result of the default of the Respondent. (iv) The Appellant is clearly entitled to damages and interests. (v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to rewarding intransigence.

Instructively, an appeal is a challenge against the decision of the trial Court or the Court below, as the case may be. Essentially, an appeal challenges the correctness of the decision being appealed against on three fundamental grounds: (i) on the grounds of law; (ii) mixed law and facts; (iii) or on facts simpliciter.

Thus, to justify the intervention of the appellate Court on any of the grounds of the notice of appeal before it, the appellant has an up-hill task of establishing that the decision of the Court below he seeks to be reversed or set aside was wrongly arrived at, or the opinion expressed therein is not supported by the pleadings and evidence on the record. See GUARDIAN NEWSPAPERS LTD VS. REV. PASTOR C.I. AJEH (2011) LPELR-1343 (SC) @ 27 paragraphs A-C and UOR VS. LOKO (1988) 2 NWLR (pt. 77) 430.

Where a decision of a Court is challenged on the ground that the trial Court failed to properly consider the appellant’s case, the appellate Court in the exercise of its primary judicial responsibility, ought to take into account certain fundamental factors: (i) The nature of the evidence before the trial Court or the Court below. (ii) Whether the Court below accepted or rejected any evidence upon the correct perception. (iii) Whether the Court below used the imaginary scale of justice to weigh the evidence on either side of the divide, and (iv) Whether the Court below appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.

This trite fundamental doctrine has been reiterated in a plethora of formidable authorities. See EGONU VS. EGONU (1978) 11-12 SC 111, AGBONIFO VS. AIWEREOBA (1988) 14 NWLR (pt.70) 325, KIM VS. EMEFO (2001) 4 NWLR (pt. 102) 147, SALAWU VS. MAKINDE (2002) LPELR-12318. Jurisprudentially, a ground of (for) appeal denotes a trial Court’s (or of Court below) errors of procedural law that form a basis for asking (praying) an appellate Court to review a case. Equally termed, ground for review. See BLACK’S LAW DICTIONARY, edition, 2019 @ 848.

Invariably, the objective of issues for determination by the Court is primarily to enable the parties streamline the issues in the grounds of appeal, contained in the notice of appeal, thereby ensuring accuracy, brevity and clarity.

A critical albeit dispassionate consideration of ground I, copiously alluded to above, would confirm that it is vague, in the sense that it is actually not clear what the complaint is all about. As aptly argued by the Respondent, at first what the error complained about apparently relates to the interpretation of Clauses 4.5.2,5.3 and 12 of the Contract Agreement. However, it is rather obvious, the ground equally relates to evaluation of documentary evidence on record. Thus, the actual nature of the complaint in ground I is far from being unambiguous.

The particulars are rather unhelpful in clearing the ambiguity inherent in ground 1.

Most especially, particulars (i) & (ii) are apparently argumentative, as they seem to complain about interpretation. Particulars (iii) to (x) are virtually argumentative, and narrative in nature, thereby complaining about evaluation of evidence on record.

What’s more, particular (x) is clearly irrelevant and extraneous to the decision of the Court below. ​ Ground 2 is equally vague, prolix and outrageously unwieldy. One is left in doubt as to whether ground 2 complains of burden of proof, when the evidence on record is unchallenged, or the evaluation of evidence by the Court below. Particulars (i), (ii), (v), (vi), (ix) are narrative and apparently dwell on evaluation of evidence. Particulars (vii) and (viii) are outrageously inconsistent with the ground in question. Particular (iii) is obviously unrelated 10 the ground.

Likewise, particular (xiii) is bad for falsity, in the sense that the Court below has clearly decided on the question whether the Appellant was actually entitled to payment based on the contract. Particulars (ii) and (iii) apparently deal with the burden of proof, when evidence is actually unchallenged.

Lastly, but not the least, ground 3, which for all intent and purposes is apparently bad for falsity, as the Court below affirmed the award of damages by the trial Court. Damages were awarded on the N6 million proved in the course of the trial. The ground 3 in question does not appear to have evidently flowed from the vexed judgment of the Court below. The said ground 3 is to say the least, at large!

Most regrettably, issue 1 allegedly distilled from grounds 1 and 2 of the notice of appeal apparently dwells on interpretation. The said issue is extraneous to the grounds, as particulars of errors of interpretation have not been provided in the grounds. See ADAH VS. ADAH (2001) 5 NWLR (pt. 705) 1, ABAYOMI VS. AG ONDO STATE (2006) 8 NWLR (pt. 982) 211, MOMODU VS. MOMOH (1991) 2 SC1, MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (pt. 959) 211.

Interestingly, the hallmark of the principles enunciated in the foregoing authorities is to the effect, that an issue for determination must be predicated upon or distilled from a competent ground of appeal. This is indeed so, whether or not the issue is raised by the Appellant or the Respondent. Thus, an issue for determination not distilled or derived from a competent ground of appeal, ought to be struck out along with the incompetent ground in question. The proposition of law is indeed trite, one cannot put something on nothing and expect it to stand.

No, it would most assuredly crumble and fall just like the way the cookies crumble. See MACFOY VS. UAC (1961) AC per Lord Denning, MR.

The issue 2, distilled from ground 3 does not at all relate to the decision of the Court below, because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 million at the interest rate of 10% per annum. There ought not to have been a complaint about damages that was not awarded.

Hence, against the backdrop of the foregoing postulations, the most inevitable conclusion that could be arrived at in the instant appeal, is to the effect that the Respondent’s preliminary objection is meritorious, thus ought to be granted by me.

CONSEQUENTIAL ORDERS A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent.

See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627.

Hence, having determined that the instant appeal is grossly incompetent, thereby upholding the Respondent’s preliminary objection, the appeal is accordingly hereby struck out by me. ​ There ought not to be any order in regards to costs.

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MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Saulawa JSC and to underscore the support, I have in the reasonings from which the decision came about, I shall make some remarks. ​ This is an appeal against the judgment of the Court of Appeal, Lagos Division or Court below or lower Court, Coram C.B. Ogunbiyi JCA (as he then was), A.G. Mshelia and R.O. Nwodo JJCA, delivered on the 12th June, 2008, dismissing the appellant’s appeal against the judgment of the High Court of Lagos State dated 19th May 2005 per J.E. Oyefeso J.

FACTS BRIEFLY STATED The appellant (as plaintiff) had by a suit instituted on 27th May, 2002 before the trial High Court claimed against the defendants (now respondents) the sum of N26.5 million being special and general damages for a road stabilisation contract awarded to the Plaintiff by the Defendant which contract the Plaintiff completely executed. The plaintiff claimed as follows:- “(1) Particulars of Special Damages: (a).

The sum of N20,007,076.06 being the balance of the contract sum of N35,007,076.60 due to the Plaintiff in respect of the stabilisation of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State, and (b). The sum of N1,500.000.00 being retention fee. (2). General Damages: The sum of N5,000,000.00 being general loss suffered by the Plaintiff as a result of the unquantified damages suffered by the failure of the Defendants to pay the whole contract sum as and when due. (3).

Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs are fully paid by the Defendant.

The Defendants filed a Statement of Defence. In answer thereto, the Appellant filed a reply to the Statement of Defence. The Appellant called two witnesses to prove its claim and tendered thirteen (13) documentary exhibits in support thereof. The Defendants called one witness who testified in chief and refused to show up for cross-examination, and the Defendants abandoned their defence. At the close of evidence, written addresses were ordered and the Appellant filed its written address.

The Defendants did not filed any written address.

The kernel of the Appellant’s case is that it had completely executed the contract for the stabilisation of a 16.5 laterite road awarded to it by the Defendants in accordance with the contract agreement signed by the parties and admitted in evidence as Exhibit P3, and having been issued a certificate of completion of the parties’ agreement in the said contract document, and which was duly signed by the Defendants’ Council Engineer on their behalf .and with their authority, the Defendants were bound to perform their obligation under the contract, namely to pay the Appellant the sum outstanding on the contract.

The Appellant’s PW 1, Chief Michael O. Odumenya, testified and tendered the letter of offer of the contract dated 15th November, 2000 as Exhibit P1, the Appellant’s letter of acceptance dated 16th November, 2000 as Exhibit P2, the Contract Agreement dated 16th December 2000 as Exhibit P3; the letter of review of the contract sum dated 31st January, 2001 as Exhibit P4, the revised contract agreement dated 31st January, 2001 as Exhibit P5.

The Appellant also tendered the Appellant’s letter reporting completion of the contract dated 28th May, 2001 as Exhibit P6 and the Appellant’s letter of demand for payment of balance dated 5th June, 2001 as Exhibit P7 and the certificate of completion issued by the Defendants to the Appellant dated 12th June, 2001 as Exhibit P8. The Appellant further tendered its Counsel’s letter of demand dated 18th April, 2002 as Exhibit P 9, while the Defendants’ letter to the Appellant offering part-payment of N6 million dated 8th March, 2002 was tendered as Exhibit P10.

The Appellant also tendered its bank’s statement of account for the material period as Exhibit P11 while a Guardian Newspaper publication of 3rd April, 2002 was tendered as Exhibit. An earlier letter by the Appellant for a review of the contract sum was tendered as Exhibit P13 while a certified true copy of the above-said Guardian publication was tendered as Exhibit P14.

The Defendants on the other hand, had no evidence to controvert the overwhelming evidence proffered by the Appellant on the due execution of the contract and the liability of the Defendants to pay the outstanding balance in terms of the contract agreement.

The learned trial Judge, inspite of the preponderance of evidence in support of the fact that the Appellant had executed the contract as agreed upon by the parties, failed to give judgment to the Appellant in respect of the outstanding balance by adopting an erroneous interpretation of the clauses of the contract agreement, but however gave judgment for the sum of N6 million that was not in dispute. The Appellant dissatisfied with the said judgment, appealed to the Court below, armed with 5 (five) grounds of appeal.

The Respondents despite being served with the Notice of Appeal, the Appellant’s Brief of Argument and several hearing notices, failed to challenge the appeal in any manner whatsoever including filing of their Respondents’ Brief of Argument. The Court below even on the face of the unchallenged appeal, on the 12th day of June 2008 in a considered judgment upheld the decision of the Court of first instance and dismissed the Appellant’s appeal.

It is against this judgment dismissing the Appellant’s appeal by the Court below that the Appellant has now appealed to this Court by a Notice of Appeal dated the 11th day of September, 2008 and filed on the 11th day of September, 2008.

At the hearing on 21/9/2021, learned Senior Advocate Gordy Uche adopted the appellant’s brief of argument filed on 9/11/2009 and deemed filed 13/12/2010 and appellant’s amended reply brief filed on 23/12/2020. He raised two issues for determination, viz: 1. Was the Court below right in its interpretation of clauses 4, 5.2, 5.3, and 12 of the contract agreement (Exhibit P5) when they came to the full payment of the contract sum. (Arising from Grounds 1 & 2) 2.

Was the Court below right when it held that the Appellant was not entitled to an award of damages inclusive of interests on the sum owed the Appellant by the Respondents. (Arising from Ground 3).

Said Sanusi, learned Counsel for the respondents adopted their brief filed on 18/2/2020 and deemed filed on, 18/3/2020. In the brief was argued a Preliminary Objection which learned counsel said if it failed, the Court should consider a single issue as follows:- Whether the Court of Appeal was justified in affirming the judgment of the High Court that the appellants did not prove his entitlement to the full claims sought.

It is without saying that the Preliminary Objection of the respondents would be first considered before anything else as upon it depends the validity of the appeal.

PRELIMINARY OBJECTION Learned Counsel for the respondents/objection submitted that the three grounds of appeal are incompetent and should be struck out since they did not comply with Order 8 Rule 2(3) & 4 of the Supreme Court Rules.

That the instant grounds of appeal are not only argumentive, narrative in nature, the particulars in some cases are so dissimilar to the grounds and are vague.

That ground one is vague in the sense that one cannot really decipier what the complaint is really about. He cited CBN v Okojie (2002) 8 NWLR (pt. 768) 48 at 61.

Learned counsel for the objectors contended that ground 2 is prolix in nature, and unwieldy, and also vague. Also that ground 3 is vague. He cited Globe Fishing Industries Ltd v Coker (1990) NWLR (pt. 162) 265 at 300, Osasona v Ajayi (2004) 14 NWLR (pt. 894) 527.

The appellant responded stating that the entire grounds of appeal filed by the appellant are all proper and valid as the grounds of appeal flow directly from the judgment appealed against and are set out concisely, precisely and succinctly and clearly show the nature and ambit of the appellant’s complaints before the Court. See Oloruntoba Oju & Ors v Abdul-Raheem & Ors (2009) 13 NWLR (pt. 1157) 83 at 120 – 121.

That the Supreme Court has a duty to do substantial justice, on the live issues begging for determination. See Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2001) 7 NWLR (pt. 711) 206 at 232. I shall refer to the relevant rules of Court.

Order 8 R.2(3) of the Supreme Court Rules provides as follows: “The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of appeal without argument or narrative and shall be numbered consecutively.” Order 8 R.2(4) of the Supreme Court Rules provides as follows: “No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court its own motion or on application by the respondent.” It is to be noted that grounds of appeal as a strict rule must not be verbose, argumentative and vague as these features rob it of its substance.

To achieve its object, it must be concise, straight to the point. It must convey a message. Where this is not the case, it is tantamount to a pipe without a sound, a distinct sound-the error contained in the said judgment, prolix, argumentative and vague. Such grounds are not permitted under the rules of this Court. That is why this Court is won’t say that drafting of grounds of appeal require special expertise because the consequence of non-compliance is that the grounds of appeal may be struck out thereby making the issues formulated thereon incompetent.

The rationale of this rule of Court has been adequately explained in a long line of judicial authorities.

In AIGBOBAHI V AIFUWA (2006) 6 NWLR (PT.976) 270 Per Mohammed J.S.C at page 314 Para G-H said thus: “The whole purpose of a ground of appeal is to appraise or put the other side on notice of the nature of complaint being raised therein and the overriding consideration is whether the ground is clearly stated vague.” See also Anie v Ugagbe (1995) 6 NWLR (pt. 402) 425 at 432 as follows:- “A ground of appeal must be so succinctly couched and specifically described that the other side will know the exact complaint against the judgment, It should also avoid repetition, narration or arguments, The whole purpose of grounds of appeal is to give notice to the side as to what case he is going to meet on appeal.

There should be no ambiguities or roundabout arguments in a ground of appeal.” See also ADEROUNMU V OLOWU (2000)4 NWLR (PT.652) 253 S.C, NATIONAL INVESTMENT & PROPERTIES CO. LTD V THOMPSON ORGANISATION (1969) 6 N.S.C.C. 161 at 164.

In context to the instant grounds of appeal, they are not only argumentative, narrative in nature, the particulars in some cases are so dissimilar to the grounds and they are so vague. Issues have been purportedly formulated on such incongruous grounds of appeal.

The grounds are reproduced hereunder:- “Ground 1 Error in Law The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the contract agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion that there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on record to the contrary.

Particulars of Error (i) The contract agreement executed by the parties tendered as Exhibit P5 was clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of completion/payment certificate, which provisions are binding on parties, effect ought to have been given accordingly to them by the Court below. (ii) The Court below was wrong in relying on its own observations from examination of the documents to decide matters which did not emerge from the actual evidence on record. (iii) It was in evidence that the Appellant had performed and complied with all duties created on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six month window for release of final payment, being the third stage of payment, namely payment of the retention fee. (iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondents designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement. (v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as duly designated agent and on behalf of the Respondents) had upon inspection and the satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment as envisaged in Clause 5.3 of the Contract Agreement, being the third stage payment provided for Clause 4 of the said Contract Agreement. (vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works completed to date – N35, 007,076.60″, being the entire contract works. (vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is balance, less the retention fee. (viii) The lower Court was therefore in error in holding that Exhibit P8 was the payment certificate issued by the Respondents of their representative, but rather placed, on reliance on a letter dated 8th March, 2002 (Exhibit P10) written outside the six months retention and warranty period by the Clause 4 of the Contract Agreement. (ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within six months window for observation of defects and for retention fee. (x) Extrinsic evidence such as Exhibit P10 ought not to have been used to vary the contents of a written contract validly entered into by the parties. (xi) The interpretation placed on Exhibit P5 and P8 by the learned Justices of the Court of Appeal occasioned miscarriage of justice.

GROUND 2: ERROR IN LAW The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record.

PARTICULARS OF ERROR: (i) The Appellant had testified and tendered 13 documentary Exhibits in support of its case, particularly the contract document (Exhibit P5) and the Certificate of Completion from the Respondents (Exhibit P8) (ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as careful perusal of the pleadings reveals that same was Exhibit. (iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below. (iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming and it was open to Court to act on such unchallenged and uncontroverted evidence, which was either inherently incredible nor offended any rational conclusion. (v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works. (vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents designed professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant. (vii) The Respondents having issued the completion. certificate through their Council Engineer as provided for by the Contract Agreement are not free to resile therefrom or to disclaim certificate. (viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellant is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established. (ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on preponderance of evidence. <br< p=”” style=”box-sizing: inherit;

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GROUND 3: ERROR IN LAW The learned Justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.

Particulars of Error (i) The Appellant established that there was a breach of contract, even as the learned trial judge had found that part of the first stage payment was still being owned the Appellant, that is the sum of N6million. (ii) The Appellant had established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents (iii) The funds of the Appellant had been tied down since 2011 as a result of the default of Respondents. (iv) The Appellant is clearly entitled to damages and interests. (v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to intransigence.”

Ground one is vague in that one cannot really decipher what the complaint is really about. A vague ground of appeal was defined by this Court in C.B.N. v OKOJIE (2002) 8 NWLR (Pt.768) 48 at PG 61 PARA E-F. The Court said thus:- “Vagueness of a ground of appeal may arise where it is couched ‘in a manner which does not provide any explicit standard for its being understood.

It may also be considered vague when complaint is not defined in relation to the subject or it is not particularised, or the particulars are irrelevant.” A ground of appeal is said to be vague if it is illusive, ambiguous, broad, debatable, disputable, evasive and inexact. On the other hand, a ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague since it would by this nature of clarity speak loudly of the complaint. See Lagga v Sarhuna (2008) 16 NWLR (pt. 1114) 427 a 471-472.

For a clear picture, a vague or ambiguous ground would lead one to think the error complained of is the interpretation of Clauses 4, 5.2, 5.3 and 12 of the Contract Agreement. ​ When read further, it seems the error complained changed to the evaluation of documentary evidence on record. The effect is that one is left in doubt as to the nature of complaint in ground one. The particulars did not help out in resolving the confusion. The particulars are argumentative and narrative in nature. Particulars (i) & (ii) are argumentative in nature. They seem to complain about interpretation.

Particulars (iii) to (x) are not only argumentative, narrative in nature, they also seem to complain about evaluation of evidence on record. Particulars (x) are clearly irrelevant as it was not a decision of the Court below. The Court below did not vary the contents of any written contract between the parties.

It is now well settled in law that the ground and their particulars must be restricted to the errors complained of in the judgment. In order words, that the grounds and particulars of errors should not be framed at large. The case of Osasona v Ajayi (2004) 14 NWLR PT. 894 527 is apt in this regard. This Court held that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal.

They are specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. The particulars of ground one are not only fundamentally defective and they also increased the confusion as to the perceived error in the judgment.

Ground 2 is prolix in nature and unwieldy. It is also vague as ground 1. One is not sure what the complaint really is whether it is the burden of proof when evidence is unchallenged or the evaluation of the evidence led by the Court. The particulars did not help resolve the confusion. Particulars (i), (ii) (v) (vi) (ix) apart from being narrative seem to dwell on evaluation of evidence while particulars (vii) & (viii) are inconsistent with the grounds. They do not relate at all to the ground. Particulars (iii) are not a complaint against the judgment.

Particulars (viii) are bad for falsity as the Court clearly decided on the question whether the Appellant is entitled to payment based on the contract. The grounds like the particulars are not framed at large. Particulars (ii) & (iii) seem to dwell on the burden of proof when evidence is unchallenged.

Again, ground 2 is repetitive of ground 1 in many respects. Particulars (ii) – (viii) are repetitive of particulars of ground 1.

It is trite that appeal is not fought on repetitive grounds but on the quality of the grounds.

Ground 3 is also vague. Several questions crop up. What is the interpretative outcome of the case? How does interpretation outcome of the case relate to damages? Particulars (v) are inconsistent with the ground. Is the complaint about damages and/or interests? One cannot decipher. Particulars (i) was not a decision of the Court of Appeal. The Court did not find as a fact that the Respondent breached the contract. Thus, the complaint is at large. The particulars are also argumentative which is not permitted by the rules of this Court.

It is settled law that particulars of a ground cannot be different from the grounds because they form part and parcel of the complaint. The particulars of a ground are only meant to be an addendum. See Mba v Agu (1999) 1 NWLR (PT.629) SC1.

This Court in Globe Fishing Industries Ltd v Coker (1990) NWLR (PT.162) 265 S.C 3000 F-G reiterated the principle thus:- “The particulars and nature of the error or misdirection alleged in Order 8 Rule 2 (2) are the specific reasoning, finding or observations in the judgment relating to or projecting the error or misdirection complained of They are in the sense the itemisation of the error or misdirection in the judgment or ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of appeal to establish that the Court erred or misdirected itself.

They should not also be independent complaint from the ground of appeal but ancillary to it.”

Ground 3 is also bad for falsity as the Court of Appeal affirmed the award of damages by the trial Court. Damages were awarded on the Six Million Naira proved. The ground does not flow from the judgment of the Court below. The ground is framed at large. See Co-operative & Commerce Bank Plc v. Ekperi (2007) 3 NWLR (PT. 1021) 282.

Confusing grounds of appeal will only bring about confusing issues. The issues purportedly formulated by the Appellants are as follows: “Was the Court below right in its interpretation of Clauses 4,5.2,5.3 and 12 of the Contract Agreement (Exhibit P5) when they came to the conclusion that the Appellant was not entitled to full payment of the contract sum (Arising Grounds 1 & 2)? Was the Court below right when it held that the Appellant was not entitled to an award of damages inclusive of interests on the sum owed the Appellant by the Respondents? (Arising from Ground 3)”

Issue one formulated from grounds 1 and 2 seem to talk about interpretation. The issue is formulated outside the said ground as particulars of error of interpretation were not given in the said grounds. That is not allowable. See the case of Adah v. Adah (2001) 5 NWLR (PT.705) page 1. The issue can only be discountenanced in the circumstances. The complaint of the Appellant against the judgment of the Court below as distilled from issue one is that there was a perceived error in the interpretation of the contract which led to wrong findings of fact.

But the Appellant proceeded to fault the evaluation of evidence by the Court below in the body of the brief. It is clear that the perceived error in evaluation of evidence as argued by the Appellant did not flow from the error in interpretation. Thus, since the issue distilled from grounds 1 and 2 is the perceived error in interpretation by the lower Court, this Court cannot enquire as to whether evidence were properly assessed by the lower Court because the rationale behind the formulation of issues is to narrow the field of dispute.

It is to narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity.

Once issues for determination are formulated, it supersedes the grounds of appeal. See Abayomi v. A.G. Ondo State (2006) 8 N.W.L.R (PT. 982) 211.

It is more so since issue one is distilled from both ground 1 and 2 of the notice of appeal. It is now trite that where an incompetent ground of appeal is argued together with those formulated from competent grounds, the issue will be deemed incompetent because the Court cannot sift that which is competent from the incompetent ones.

See Ngige v Obi (2006) 14 N.W.L.R (PT.999) lat 165 Para E-H this Court endorsed this exposition of the principle by Per Salami J.C.A in the unreported case of Korede v Adedokun thus: “This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brie to extract argument in respect of valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust arising therefrom may of necessity becloud its judgment.

The duty of the Court is that of an umpire whose functions in the interest of justice is to tend the rope and not to step into the brawl by exercising argument on good grounds of appeal from those of bad ones. See also Honika Sawmill (Nig) Ltd v. Harry Okojie Hoff (1994) 2 NWLR (pt. 326) 252 at 262, Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718.”

Issue two formulated out of ground 3 is strange to the decision of the Court of Appeal because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 Million Naira at the interest rate of 10% per annum. What then is the sum owed and what then is the interest? The Appellant did not prove he was entitled to the sum claimed. That is the decision of the Court below. If he at the Court below establish same, there cannot be no complaint about damages that was not awarded.

It has to be pointed that the Court can raise the issue suo motu, of the incompetence of an appeal. In Abubakar v Joseph (2008) 13 NWLR (PT.1104) 307, this Court held that where no objection is raised to the competence of the grounds of appeal filed by the Appellant, the Court on its own can raise the issue.

The issues formulated being vague are clearly irrelevant to this appeal. It makes it difficult for the Court to determine the real issue in controversy. It makes the hearing of the appeal difficult as it is trite law that a respondent to an appeal cannot formulate issues for determination outside the grounds of appeal filed by the Appellant. Justice can not be done as between the parties when the Respondent is at a loss as to the complaint of the Appellant. The door of justice is open to genuine complaints as otherwise a waste the precious time of the Court will ensue.

Even the cry that substantial justice demands that the appeal should still be heard would not save the appeal. This much was stated by Per Achike J.S.C in Calabar East Co-op. v Ikot (1999) 14 NWLR (pt. 638) 225 at 247 Para C: “Pronouncements or decisions made on incompetent issues or defective grounds of appeal cannot advance the appellants’ case, not even the interest of Justice nor, our jurisprudence, one jot, because, at best, such pronouncements are mere obiter dicta.

Stricto sensu, an appellate Court lacks jurisdiction, in the sense of competence to entertain an appeal which is not fought on valid grounds of appeal. See Godwin v C.A.C (1998) 14 NWLR (pt.584) 16 SC and Kala v Potiskum (1998) 8 NWLR (pt. 540) 1 SC.” From the foregoing, it is evident that there is no point belabouring the issues which have on their own been determined as stemming from incompetent grounds of appeal.

This Preliminary Objection has merit and I uphold it. The Notice and Grounds of Appeal are struck out on account of incompetence. I abide by the consequential orders made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal illustrates the importance of proper drafting of grounds of appeal and the sometimes devastating effect of failure to comply with the applicable rules in that regard.

Order 8 Rule 2 (3) and (4) of the Supreme Court Rules, as amended, provides: “(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without argument or narrative and shall be numbered consecutively. (4) No ground which is vague or general in terms, which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.” The rules of Court providing for the form and content of a notice of appeal are meant primarily to assist the Court and the respondent to discern, in a concise manner, the nature of the complaint from the decision appealed against.

While it is trite that rules of Court are meant to be obeyed, this Court has usually taken a liberal approach to a complaint that grounds of appeal are not in conformity with the rules, where it is nonetheless possible to identify the nature of the complaint or, to put it in another way, where despite the fact that the grounds of appeal are inelegantly drafted, neither the Court nor the respondent is misled as to the real nature of the complaint. This is in conformity with the Court’s desire to do substantial justice in the appeal before it and not to jettison an appeal on technical grounds.

See Sosanya vs Onadeko & Ors (2005) LPELR – 3105(SC) @ 25 B – C; (2005) 2 SC (Pt. 11) 13, Aderounmu vs Olowu(2000) 4 NWLR (Pt. 652) 253, Oleksandr & Ors Vs Lone Star Drilling Co. Ltd. & Anor (2015) LPELR – 24614 (SC) @ 26A, Ogboru vs Uduaghan (2012) 11 NWLR (Pt. 1311) 357 @ 380 B- D. The leaning of the Court in favour of doing substantial justice must, however, never be taken for granted. In the instant appeal, the grounds of appeal along with their particulars reveal an apparent confusion in the mind of learned counsel who drafted them as to the aspect of the judgment he intends to challenge.

I agree with the analysis of the grounds of appeal as done by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC in the lead judgment and agree that no amount of ingenuity can assist the Court or the respondent to decipher the actual complaint in grounds 1 and 2 against the judgment of the lower Court. Learned counsel should be wary of prolixity in the drafting of grounds of appeal and their particulars, as they run into the danger of obfuscating the real nature of the appellant’s complaint, as in this case.

As regards ground 3, it is wholly unrelated to the decision of the lower Court. The complaint is that the Court erred when it held that the appellant was not entitled to an award of damages upon “the interpretation of the outcome of the case.” Apart from being vague, the lower Court, in fact, affirmed the finding of the trial Court that the appellant was entitled to the sum of N6 million being the balance of 60% first installment as approved by the Executive Committee of the 1st respondent, which he proved successfully.

For a ground of appeal to be competent, it must be derived from the ratio decidendi of the decision appealed against. See Oleksandr Vs Lone Star Drilling Co. Ltd. & Anor (Supra), Dalek Nig. Ltd. vs Ompadec 2007 ALL FWLR Pt. 364 204.

Unfortunately, this appeal has no saving grace, as although the three grounds of appeal are couched as ‘error in law”, a careful examination thereof reveals that all the grounds are of mixed law and fact, for which prior leave ought to have been sought and obtained in compliance with Section 233 (3) of the 1999 Constitution as amended. The failure to obtain leave where leave is required, renders the notice of appeal null and void. See Nwagbara vs Jadcom Ltd. (2021) LPELR – 55329 (SC) @ 10 C – E, Chrome Air Services Ltd. & Ors Vs.

Fidelity Bank (2017) 12 SC (Pt. 111) 57; (2017) LPELR – 43470 (SC) @ 8 D – E; Fasuyi vs P.D.P. (2017) LPELR – 43462 @ 10 – 12 C – A.

On the whole, I agree with my learned brother, Saulawa, JSC that the appeal is incompetent and it is accordingly struck out. I abide by the order on costs contained in the lead judgment.

MOHAMMED LAWAL GARBA, J.S.C.: I am in full agreement with the views expressed by my learned brother, Hon. Justice Ibrahim Mohammed Musa Saulawa, JSC, in the lead judgment, which I read before today, that all the three (3) grounds contained on the Appellant’s Notice of Appeal are generally vague, unwieldy and prolix such that the real grievance or complaint against the decision by the Court below in each of them is uncertain, obfuscated and unspecific to be readily discernable.

The grounds offend and are in contravention of Order 8, Rules 2 (3) and (4) of the Supreme Court Rules (as amended) 2014 which provide that:-

“2.(3) The notice of appeal shall set fourth concisely and under distinct head, the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (4) No ground which is vague or general in terms which discloses no reasonable ground that of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its motion or on application by the respondent.” The grounds of appeal do not disclose reasonable grounds of appeal for being in general terms and vague and so liable to be struck out.

See Honika Sawmill Nig. Ltd. v. Hoff (1994) 2 NWLR (pt. 326) 252, Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285, Doma v. INEC & Ors. (2012) 7822 (SC).

I join the lead judgment in striking out the grounds as well as the appeal for being incompetent.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, IBRAHIM MOHAMMED MUSA SAULAWA, JSC.

I completely agree with the reasoning, conclusions, decisions, including the orders therein.

Judgment

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.