Civil Procedure

Before Their Lordships

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Before Their Lordships

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FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Kebbi State High Court sitting in its Appellate jurisdiction in the Birnin Kebbi Judicial Division and delivered on the 30th day of September, 2013, Coram ASABE E. KARATU, J (Presiding Judge), ABASS AHMAN, J and FARUK H. BUNZA, J in Appeal No KB/HC/58A/2011.

Before Their Lordships

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OLUKAYODE ARIWOOLA, J.S.C (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division, herein after called, Court below, delivered on May 2nd, 2003. The appellant was the plaintiff while the respondent was the defendant before the trial court. The court below had allowed the respondent’s appeal against the decision of the trial court. The facts of the case that led to this appeal are as follows:

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The application was supported by an affidavit of 12 paragraphs. In opposing the application, the respondent filed a counter affidavit of 7 paragraphs on 10th July, 2000.
On the return date of 10th July, 2000 when the matter came up for hearing, the respondent drew the attention of the court to his preliminary objection earlier referred to in this judgment. Notwithstanding the initial objection to the hearing of the respondent’s application, the trial court took the application and adjourned for ruling on 24/07/2000.
In its ruling, the trial court refused the prayers sought by the respondent and proceeded to give judgment pursuant to Order 23 rule 4, High Court (Civil Procedure) Rules. The trial judge held as follows:
“This case was placed under the undefended Cause List. Instead of filing their (sic) Notice of Intention to defend before the return date which was fixed for 10/1/2000 (sic) the learned counsel for the defendant filed a Motion on Notice seeking court to strike out and or dismiss the case for being incompetent. The Court has ruled against the motion hence the court is left with no alternative than to rely under (sic) Order 23 Rules 4 by giving judgment in favour of the plaintiff as the case has not been removed out of the Undefended Cause List. The judgment is therefore hereby entered in favour of the plaintiff as per his claim against him.
The endorsed claim No. 1 and 2 are hereby granted with 10% interest from 20/12/99 to 15/5/2000 and at 10% from today till the amount is finally liquidated.”
The respondent on 3rd August, 2000 filed a Notice of Appeal of six grounds against the decision of the trial High Court delivered on 24/7/2000. The judgment of the Court below, Abuja Division on the appeal delivered on 2/5/2003 which allowed the appeal, led to the instant appeal, by the appellant who was the plaintiff before the trial Court.
Pursuant to the relevant rules of this court, briefs of argument were filed and exchanged.
On the 4th of December, 2012 when the matter came up for hearing, both counsel identified their briefs, adopted and sought to rely on their respective brief of argument.
In the appellant’s brief of argument filed on 1st June, 2004, four (4) issues were distilled from the six grounds of appeal earlier filed. The said issues are:
Issues for Determination
1. Whether the Court below had jurisdiction to consider and determine the correctness or otherwise of the
Rulings of the learned trial Judge dated 23/5/2000 and 24/7/2000 and using the Affidavits which were used in these Rulings when there was no appeal against those Rulings and thereafter basing its judgment solely on the outcome of that consideration.
2. Whether the appellant herein had a fair hearing in the court below. And if not, whether that failure occasioned a miscarriage of justice to the appellant.
3. Whether the Court below was right in holding that under Order 23 Rule 1 of the Federal Capital Territory, Abuja High Court Rules, an applicant praying that his Writ of Summons be placed in the Undefended List must (apart from, or in addition to, the affidavit in support of the (ex-parte) application setting out the grounds of his application and stating that in his belief, the defendant has no defence also file “a separate affidavit verifying his cause of action” and that failure to file that separate verifying affidavit would render the suit incompetent.
4. Whether the Court below was right in striking out the appellant’s suit in the circumstances of this case and having regard to the provisions of Order 23 Rules 3 and 4 of the FCT High Court (Civil Procedure) Rules.
The respondent in his brief of argument filed on 3rd August, 2004 also formulated two issues for determination as follows:
“(i) whether the conclusion of the court below that the Writ as irregularly commenced under the undefended list procedure is correct.
(ii) if the answer to issue one that the procedure was incorrect whether reference or non reference to other matters in the judgment occasioned miscarriage of justice in the case.”
I have examined the issues formulated for determination of the appeal by both parties, in particular, by the appellant. The issues as couched by the appellant appear clumsy and unclear, in particular, issues 1 and 3.
Generally, it is settled that the main purpose of the formulation of issues for determination is to enable the parties to narrow down the issue or issues in controversy in the grounds of appeal filed. This is in the interest of accuracy, clarity and brevity. The court is therefore at liberty to reformulate the issues for determination in order to give it precision and clarity and achieve substantial justice in the resolution of the matter in controversy. See; Musa Sha (Jnr.) & Anor V. DaRap Kwam & Ors. (2000) 8 NWLR (pt. 670) 685, (2000) 2 NSCQR 802, (2000) LPELR 3031; Unity Bank Plc & Anor V. Bonari (2008) 2 SCM 193; Yadis Nig. Ltd. V. Great Nig. Insurance Company Ltd. (2007) 10 SCM 183.
I shall therefore reformulate the issues for determination in this appeal from the grounds of Appeal filed by the Appellant as follows:
1. Whether the appellant was not denied fair hearing in the determination of the respondent’s appeal by the court below (Grounds 1, 2 and 3).
2. Whether the Court of Appeal was right in the interpretation it gave, Order 23 Rules 1 and 2 of the High Court (Civil Procedure) Rules of FCT in the determination of the respondent’s appeal before it. (Grounds 4, 5 and 6).
As earlier indicated, the appellant had commenced this action before the trial High Court under the undefended list procedure, pursuant to Order 23 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules then applicable, but now Order 21 of 2004 which rule provides thus:
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing, on what

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shall be called the “Undefended list” and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.
3(i) If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
(ii) where leave to defend is given under this Rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(i) of this order or is given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling on the plaintiff to summon witnesses before the court to prove his case formally.
5. Nothing herein shall preclude the court from hearing or requiring oral evidence should it so think fit, at any stage of the proceedings under rule (4) of this Order.”
I shall take and deal with the second issue above first on the way the court below handled the appellant’s case and the interpretation it gave to Order 23 rules 1 and 2 of the FCT High Court (Civil Procedure) Rules earlier quoted above.
As earlier noted, the appellant’s action was commenced under a special procedure known as “Undefended List Procedure”. By this procedure, generally the action is commenced by an application by the plaintiff for issuance of a writ of summons by the Registrar of the High Court concerned. The application is usually made exparte, though it could be by ordinary application, whereby the other party is not to be involved at that stage of the proceedings. The application is to be supported by an affidavit to which the proposed claim against the defendant must be attached with any other documents considered relevant and available to the applicant as exhibits. The judge shall order that a writ of summons be issued by the Registrar and to be marked as “Undefended List” after having taken the application and the court, upon consideration of all the bundle of documents filed, is satisfied that the case is one fit to be brought under the undefended list. In other words, the writ of summons as an originating process under Order 23 of the High Court (Civil Procedure) Rules is a specially and peculiarly endorsed writ of summons. It should be noted that the writ of summons initiated pursuant to this rule and under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the court, otherwise it goes without saying, that such writ of summons which is issued before the court’s order so to do becomes incompetent and shall be liable to be declared a nullity by the court. See; Cash Affairs Finance Ltd. V. Inland Bank (Nig) Plc (2000) 5 NWLR (pt 658) 568 at 587, Idris V. Archibong (2001) 9 NWLR (Pt.718) 447 at 457 and 459, Equity Bank of Nigeria Ltd. V. Halilco Nigeria Ltd. (2006) 7 NWLR (pt 980) 568; Bayero V. Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 391 at 425; (2006) 36 WRN 136.
In the instant case, a careful perusal of all the processes filed shows that the appellant’s application for leave of the court to issue the writ of summons in the suit by the trial court was filed on 15th May, 2000. The said application, being an exparte application which does not require the defendant/respondent’s presence, was taken by the court on 23rd May, 2000. This is clearly shown in the order on pages 15 – 16 of the record. It is noteworthy that the writ of summons had been issued by the Registrar on 15th May, 2000 before the court so ordered. This is apparent on page 14 of the record and would have rendered the writ of summons improperly issued and thereby incompetent. Ordinarily, the writ of summons had not been properly issued and being an originating process it affects the competence of the trial court in the first place.
However, this point had never been taken up by the Respondent before the two courts below and not even before us now. Worthy of note is that the instant appeal is by the plaintiff who caused the said writ of summons to be issued and served. Neither the trial court nor the court below raised it as they are entitled to do, even when it was not raised by the defendant/respondent. I shall come back to this anon.
Perhaps my Lords, I must say it here clearly that the respondent did not even directly complain that the Writ of Summons was not properly issued nor that he was not served with the appellant’s writ of summons. His grouse is that the said writ of summons was not accompanied with a verifying affidavit upon which he would have based his defence, if he had any.
Indeed, the respondent admitted that he was served with the writ of summons, copy of the motion exparte and the enrolled order of court.
In its judgment, the court below had found as follows:
“…the plaintiff in his counter affidavit did not depose that he filed any affidavit as a separate process “setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto………” as provided under Order 23 rule 1 of the FCT, Abuja High Court Rules.”
Still in the judgment of the court below, it was opined as follows:
“Although the affidavit filed in support of the exparte application contained the substance and material needed as a verifying affidavit, it is not in accordance with the Rules of Court to convert an exparte affidavit used for obtaining leave to place a writ on the undefended list as an affidavit verifying the cause of action……the attempt made by the plaintiff was to use his affidavit in support of the motion exparte to serve a dual purpose. He wanted to use the same affidavit as the one postulated under Order 23 rule 1 of the FCT High Court Rules.”
There is no doubt that the appellant did not file a separate affidavit in support of the writ of summons after the writ was ordered to issue and became issued. At least there is nothing on record to so indicate. The said affidavit referred to in Order 23 rule 2 as “the above-mentioned affidavit” is no doubt the same affidavit containing the same facts setting forth the grounds upon which the plaintiff’s claim is based. And as required, the registrar is to annex a copy of the

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said affidavit to the writ of summons for service on the defendant upon issuance of the said Writ pursuant to the court’s Order to do so.
It is trite that the purpose of Order 23 of the High Court (Civil Procedure) Rules – under Undefended List procedure is for obtaining summary judgment without proceeding to trial requiring calling of witnesses. The rule is for disposing with dispatch, cases which are virtually uncontested.
However, for the Rules on Undefended List procedure to successfully apply and enable the court to proceed to summary judgment, the following preliminary requirements must exist.
(i) The defendant must not only have been served with the required processes, he must also have entered appearance.
(ii) A claim must have been indorsed on, or attached to the writ of summons served upon the defendant.
(iii) There must be a definitive affidavit (which is evidence on oath) verifying the cause of action and the amount claimed and also that the defendant has no defence to the action.
(iv) The defendant must not have filed a defence to the action.
See; Chief Harold Sodipo V. LemninKainen Oy & Anor (No. 2) (1986) 1 NWLR (pt 15) 220 at 230-231, per Eso, JSC.
On the action initiated pursuant to the Rules on Undefended List Procedure, this Court had opined as follows – per Eso, JSC at page 231 of Chief Harold Sodipo V. LemninKainen (supra)
“An action in the undefended list, following these Rules, is not a real substitute to trial of actions, but it serves the purpose of reducing congestion in the courts, by way of creating an avenue for the speedy determination of actions. If a defendant is served with a writ and a statement of claim, and he enters an appearance to the action, having read the affidavit that he has no defence, he cannot be seen to complain after, that he has not had a fair trial.”
There is no doubt the procedure under undefended list Rules is a bit technical and must be understood properly to be of benefit to parties employing it and the court.
As clearly shown in the Rules, an application being made to court for issuance of a writ of summons is to be accompanied with a supporting affidavit and other necessary and relevant documents to be considered by the court to make a firm decision, before the adversary is brought in, whether or not the action is fit for trial under the undefended list. Yet, after the court is convinced that with the facts disclosed in the endorsed claim, the affidavit and if any, the documents attached as exhibits, a writ is ordered to be issued by the Registrar, there shall then be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as stated in rule 1 of Order 23, as many copies of the said affidavit as there are parties against whom relief is sought, and the Registrar shall then annex one such copy of the affidavit to each copy of the writ of summons for service on the defendant(s). See; Order 23 rule 2 (supra). In other words, the plaintiff is expected to file a definitive affidavit as evidence on oath separately, verifying the cause of action, the amount being claimed and state clearly that the defendant does not have a defence to the action. Where the writ of summons served on the defendant by the court upon issuance under undefended list procedure does not have the required definitive separate affidavit, the defendant cannot be said to have been served with the required processes.
My Lords, one may then ask, will the trial court be competent to adjudicate on such matter when all the required processes were not served on the defendant? When then does a court become competent to assume jurisdiction to adjudicate over a matter?
This court has settled the matter and has restated it over and over again, that a court is competent when:
“(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided, because the defect is extrinsic to the adjudication.”
See; Gabriel Madukolu & Ors. V. Johnson Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341; (1962) 2 NSCC 374, Mark V. Eke (1997) 11 NWLR (pt 527) 501, SLB Consortium Ltd. V. Nigerian National Petroleum Corporation (2011) 9 NWLR (pt) 317, (2011) 5 SCM 187.From the records, it is clear that the appellant did not file the required definitive affidavit separately in support of the writ of summons setting forth, the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto. This is a condition precedent to enable the court, on the return date, proceed to judgment, in the absence of the defendant’s defence properly filed before the return date.
Indeed, the appellant admitted in a way, that he did not file a separate affidavit in support of the writ in his personally deposed counter affidavit to the respondent’s application which sought an order of court striking out the said writ. In paragraph 3, the appellant stated those documents that were served on the respondent as follows:
“That in answer to paragraphs 2 and 3 of the said affidavit in support of this motion, the documents served on the defendant/applicant herein somewhere in the second half of May 2000 by the bailiff of this honourable court were (i) My specially endorsed writ of summons marked by this court “Undefended List”: Return date 10/7/2000, (ii) My motion exparte dated 15/5/2000 together with the supporting affidavit and exhibits SS01, SS02, SS03, SS04 and SS05 attached hereto and (iii) the Enrolment of Order of this court dated 23/5/2000 granting all the prayers in my motion exparte aforesaid.”
The court below had found on page 73 of the record as follows:
“It is note worthy that the plaintiff in his counter affidavit did not depose that he filed any affidavit as a separate process “setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence……” as provided under Order 23 rule 1 of the FCT Abuja High Court Rules. Although the affidavit filed in support of the exparte application contained the substance and material needed as a verifying affidavit, it is not in

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accordance with the Rules of court to convert an exparte affidavit used for obtaining leave to place a writ on the undefended list as an affidavit verifying the cause of action.”
The court below went further on page 74 of the record to hold as follows:
“…the affidavit filed in support of the Motion exparte was not one to which the defendant could react under Order 23 rule 1 above. The said affidavit in support of the motion exparte was only for use as between the plaintiff and the court and its life was terminated when the lower court used it for the only purpose for which it was filed. It could not be expected that the defendant would file an affidavit disclosing a defence on the merits in reaction to an affidavit exparte which life had expired………. the plaintiff had irregularly commenced his writ. To allow the writ to stand when it had no verifying affidavit would occasion grave injustice to the defendant as the defendant was precluded thereby from meeting plaintiffs claim in accordance with the rules.”
In his brief of argument, the appellant after referring to the procedure he employed in commencing his action before the trial court, quoted the learned justices of the court below on his failure to file a separate affidavit in support of the writ of summons. Learned Counsel referred to the way the court below set out the provisions of Order 23 of the FCT High Court (Civil Procedure) Rules and contended that reading through it, he could not see anything to suggest that an applicant/plaintiff under that rule must file a separate affidavit verifying his cause of action apart from the affidavit in support of his exparte application under Order 23 rule 1.
He contended further that Order 23 rule 2 makes it clear that it is the same affidavit in support of the exparte application that must be delivered in sufficient numbers.
There is no doubt, the appellant who incidentally is a counsel himself has, to say the least, misconceived the Rules under reference.
Curiously, the appellant had also contended that Order 23 rule 1 does not say whether the writ shall be issued before or after the court’s order.
Indeed, this is not only a misconception but misleading, to say the least. As earlier stated in this judgment the issuance of writ of summons pursuant to Order 23 under undefended list procedure cannot precede the order of court so to do. In other words, contrary to the misconception of the appellant even though the writ of summons is issued by the Registrar, he cannot issue one before the court so orders. It is a judicial function that cannot be delegated to an officer. See Nwakanma V. Ikot Local Govt. Authority (1996) 3 NWLR (pt 439) 732. Such a Writ of Summons that was issued before judicial decision so to do, upon consideration of an application become incompetent and will ordinarily rob the trial court of its competence to try the matter. It is like a Notice of Appeal, which requires leave before being filed, to be filed without leave of court; it shall be incompetent and be so declared by the court as a nullity. Mohammed v. Olawunmi & Ors. (1990) 2 NWLR (pt 133) 458.

Writ of Summons therefore being an originating process must be initiated properly to enable the court assume jurisdiction over the matter.
As shown above, the issue on the time to issue a writ was raised by the appellant himself but was not directly determined by the court below.
In other words, in a case initiated pursuant to the relevant Rules on “Undefended List”, due process of law and fulfillment of condition precedent to the exercise of jurisdiction will include the properly issued writ of summons and filing of a ‘definitive’ affidavit verifying the plaintiff’s cause of action. Where this is not done or not shown to have been done, the case cannot be said to have been initiated by due process of law and a condition precedent could not have been said to be fulfilled to enable the trial court proceed to adjudicate on the matter.
I am therefore not in the slightest doubt that the court below was right to have held that failure of the appellant to file a separate affidavit verifying the cause of his action robbed the trial court of competence.This issue is resolved against the appellant. On the other issue, whether the appellant was not denied fair hearing by the court below, the learned appellant contended that the court below failed to consider the issues raised in argument as respondent before it on the necessity to file a separate verifying affidavit. He contended further that the issue was well canvassed in his paragraphs 3.05 and 3.06 of the respondent’s brief of argument in particular, page 62 of the record.
In his said brief of argument in paragraph 3.05 he states, inter alia, as follows:
“It is quite clear from the facts of this case that the appellant did not file any affidavit in opposition to respondent’s deposition in his affidavit in support of the application to have the Writ of Summons in this suit placed in the Undefended List. The appellant seems to have lost sight of the fact that this appeal is against the Judgment delivered by the learned trial Judge of the High Court of the Federal Capital Territory, Abuja dated 24th day of July, 2000 NOT against the Ruling dismissing or refusing his application to have the suit dismissed/struck out for lack of jurisdiction. See; The Notice of Appeal and paragraph 1.02 of the Appellant’s brief… After the disposal of that Application, the only live documents before the court were the Writ of Summons and the Supporting affidavit. There was no counter affidavit to that affidavit….
There can therefore be no doubt that the learned trial Judge, was right in relying on the respondent’s affidavit in support of the Summons to give him judgment.”
(Underlining supplied).
As shown above, the appellant has referred to his writ of summons as having been filed and served along with an affidavit supporting same. This stance and contention of the appellant is also embarrassingly misleading, to say the least, bearing in mind the fact that the appellant himself is a Legal Practitioner of very many years standing having been called to the Nigerian Bar in July, 1968, as deposed in his affidavit. He was expected to know better.
On pages 1-4 of the record is the Motion Exparte with which this action was initiated before the trial High court. In support of the Motion was an affidavit headed – “AFFIDAVIT IN SUPPORT OF EXPARTE APPLICATION”. As earlier stated, in a

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counter affidavit personally deposed to by the appellant, he had referred to the three documents that were served on the respondent as follows:
(i) Specially endorsed Writ of Summons marked by the court “Undefended List”. Return date 10/7/2000.
(ii) Motion Ex-parte dated 15/5/2000 together with the supporting affidavit and Exhibits SS01, SS02, SS03, SS04 and SS05 attached thereto, and
(iii) The Enrolment of Order of this court dated 25/5/2000 granting all the prayers in the Motion Ex-parte.
There is no doubt that there was no definitive and separate affidavit filed in support of the writ of summons and none was served on the respondent. The Motion Exparte and the supporting affidavit had been dealt with to grant leave to issue the writ of summons and mark same as Undefended. The particular supporting affidavit no longer has life. It had become spent. It was meant, or made to accompany the writ of summons with the Enrolled order to show that the leave was sought and granted to issue the writ of summons. The same affidavit that supported the application cannot be used, as headed, to support the writ of summons as a verifying affidavit. A separate affidavit was required. It is rather unfortunate that the appellant could contend that the respondent did not file counter affidavit to his affidavit in support of his motion exparte. It is trite that even where the respondent was in court when the exparte application was being taken, he cannot be heard by the court.
The appellant has argued that the court below did not consider the argument of the appellant, as respondent in the court below, on any of the issues raised. The appellant contended that a reasonable person who has read his brief of argument before the court below as respondent and the judgment of the court will come away with the impression that the appellant’s case was not given any consideration at all, not to talk of fair consideration by the lower court. He submitted that there was violation of his fundamental right to fair hearing which has led to a miscarriage of justice against him.
Ordinarily, it is the defendant in an action predicated on Undefended List Procedure that should be complaining of not being given fair hearing. Yet it has been held, that the principles of fair hearing embodied in the maxim audi alterem partem have no application in cases tried under the Undefended List. The reason is clearly stated in the rules. See; Sodipo V. Lemnin-Kainem, Oy & Anor (Supra), Jipreze V. Okonkwo (1987) 3 NWLR (pt.62) 737 at 744, Agueze V. Pan African Bank (1992) 4 NWLR (Pt.233) 76 at 98. A judgment handed down under the Undefended List is certainly one on the merits and can only be set aside on appeal or by yet another action in the case of allegation of fraud. See; U.T.C Nig Ltd. V. Pamates (1989) 3 SCNJ 79/124; (1989) 2 NWLR (Pt.103) 244.

It is trite law that cases tried pursuant to Undefended List are decided entirely on affidavit evidence but not on pleadings. Pleadings are to be ordered after the court is satisfied that by his affidavit in support of his notice of intention to defend the action, the defendant has shown that indeed he has a good defence in reaction or response to the facts in support, of the plaintiff’s claim.On the complaint of the appellant on being denied fair hearing, he says his brief of argument was not considered at all by the court below. Indeed, a hearing can only be fair or said to be fair when both parties to the dispute are given a hearing or an opportunity of a hearing, that is, fair hearing does not necessarily mean oral hearing. If one of the parties is refused or denied a hearing or not given an opportunity to be heard, the hearing cannot be qualified as fair hearing. Therefore, when the parties in an appeal are not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot be said to be fair.
“Without fair hearing, the principles of natural justice are abandoned and without the guiding principles of natural justice, the concept of the Rule of law cannot be established and grow in the society.”

In Alhaji Chief Yekini Otapo V. Chief R. O. Sunmonu & Ors (1987) NWLR (pt.58) 587, (1987) LPELR 2822, on the test of fairness in the trial and appellate courts, this court per OBASEKI, JSC states as follows:
“The test of fairness in appeal proceedings must of necessity differ from the test of fairness in proceedings at the court of first instance. While in the court of first instance the true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case, the true test of fair hearing in the Court of Appeal is whether having regard to the rules of court and the law, justice has been done and appears to have been done to the parties.”In the instant appeal, the appellant did not show how he was denied fair hearing by the court below. The relevant Rules of Court were properly considered by the court with the case presented by the appellant. His submissions in his brief of argument were considered by the court below.
Perhaps the appellant may have expected the court below to state word for word in its judgment the arguments he proffered in his brief to show that his argument was considered before the court reached the conclusion. Neither the litigant nor counsel can teach the court how to write its judgment. I am therefore not aware of any clear proof that the appellant was denied fair hearing. The hearing based on the affidavit and documentary evidence was heard by the trial court, who gave him judgment though which was appealed against. In effect, this issue is also resolved against the appellant. He was given the required hearing by the court below with the consideration of his submissions in his brief of argument. His action was not properly initiated in accordance with the Rules.
In the final analysis, having resolved the two issues against the appellant, the appeal is found to be unmeritorious and lacking in substance. It fails totally and liable to dismissal. Accordingly, it is dismissed. The judgment of the court below delivered on 2nd May, 2003 is affirmed.
Even though costs follow events, I shall make no order as to costs.

JOHN AFOLABI FABIYI, J.S.C: I agree with the judgment just handed out by my learned brother – Ariwoola, JSC. The reasons advanced therein are in tune with the applicable Rules of the trial High Court of the Federal Capital Territory, Abuja.

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Let me state it briefly that Order 23 Rule 2 of the stated Rules dictates that the appellant should file copies of affidavit with the Registrar which should be attached to writ of summons for service. The appellant goofed as he failed to act in the right direction. He tried to place premium on the affidavit attached to the ex-parte application; to no avail. This is because the respondent was not a party to same. The respondent had nothing to react to, in the prevailing circumstance as dictated by the inaction of the appellant. The appellant must appreciate that rules of court are very vital in the process of justice administration. They are meant to be obeyed. Failure to do so, can be counter productive or negatively costly atimes. A party who fails to obey court rules does so at his own peril. He can hardly be heard to complain. See: Afolabi v. Adekunle (1983) 8 SC. (Reprint) 75; (1983) NSCC 398 at 405; University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143.
The appellant talked about technicality. I am afraid, there is nothing technical to hang on to, with the scenario set up by him.
The appellant suggested that the matter could be sent to the general cause list for a full blown trial. I feel strongly that he should appreciate that we are not there yet! Put mildly, the appellant has himself to blame.
I, too, feel that the appeal lacks merit and should fail. I abide by the consequential orders contained in the lead judgment.

MARY UKAEGO PETER-ODILI, J.S.C, CFR: This is a final appeal against the decision of the Court of Appeal, Abuja Division delivered on 2nd May, 2003. The appellant was plaintiff in the High Court. The contention between the parties in this court is whether procedure used in commencing the undefended List action was proper or not.
FACTS BRIEFLY STATED
The plaintiff/respondent/appellant is a legal practitioner and initiated an action stated to be under the undefended list pursuant to order 23 of the Civil Procedure Rules applicable to Federal Capital Territory, Abuja in order to recover his professional fees.
The plaintiff at the trial court filed a motion ex-parte with four reliefs including leave for service out of jurisdiction; entering the suit in the undefended list; and allowing the suit to be served on the defendant’s solicitor. The motion was supported with a 22 paragraph affidavit and five exhibits marked SS 01- SS05.
On the 23/5/2000 the plaintiff moved his motion ex-parte and the court granted the orders as prayed and an enrolled order followed the same day.
The defendant was served the court’s process which included;
(a) Copy of the concluded motion ex-parte with the affidavits and exhibits in support of the application,
(b) Copy of the enrolled order of 23/5/2000
(c) Special endorsed writ with particulars of claim signed by the Registrar on 15/5/2000.
The Defendant objected to the writ and the trial court in its considered ruling refused the objection and immediately delivered its judgment awarding the sum of five million naira and interests thereon in favour of the plaintiff without hearing from the defendant.
The defendant aggrieved filed an appeal to the Court of Appeal with six grounds. Parties filed their briefs and after argument on the 20/2/03 the Court of Appeal unanimously allowed the appeal in a considered judgment on 2nd May 2003 on the ground that the plaintiff irregularly commenced his suit. The court below struck out the suit.
Now dissatisfied, the plaintiff/respondent/appellant has come to this court.
On the 4th December, 2012 date of hearing, Chief S. S. Obaro learned counsel representing himself adopted his brief of argument filed on 1/6/04 wherein he had raised four issues for determination, viz:
1. Whether the court below had jurisdiction to consider and determine the correctness or otherwise of the Rulings of the learned trial judge dated 23/5/2000 and 24/7/2000 and using the affidavits which were used in those Rulings when there was no appeal against those Rulings and thereafter basing its judgment solely on the outcome of that consideration.
2. Whether the appellant herein had a fair hearing in the court, below? And if not whether that failure occasioned a miscarriage of justice to the appellant.
3. Whether the court below was right in holding that under Order 23 Rule 1 of the Federal Capital Territory, Abuja High Court Rules an applicant praying that his writ of summons be placed in the Undefended List must (apart from, or in addition to, the affidavit in support of the (ex-parte) application setting out the grounds of his application and stating that in his belief the defendant has no defence), also file “a separate affidavit verifying his cause of action” and that failure to file that separate verifying affidavit would render the suit incompetent?
4. Whether the court below was right in striking out the appellant’s suit in the circumstances of this case and having regard to the provisions of Order 23 rules 3 and 4 of the FCT High Court (Civil Procedure) Rules.
Prince Orji Nwafor-Orizu of counsel for the respondent adopted their brief filed on 3/8/04 and he crafted two issues for determination which are as follows:
1. Whether the conclusion of the court below that the writ as irregularly commenced under the undefended list procedure is correct?
2. If the answer to issue one is that the procedure was incorrect, whether reference or non-reference to other matters in the judgment occasioned a miscarriage of justice in the case.
Clearly, the issues as framed by the respondent are apt in setting out to answer the questions raised and best taken together. I shall therefore use them.
The appellant submitted that the court of Appeal erroneously misconceived the appeal before it and so its decision should be set aside. That the issues of the Ruling of 24th July, 2000 were of the necessity to file a separate verifying affidavit, which formed the basis of the decision of the Court of Appeal. That the principles of fair hearing as relating

…………………….H…………………….

to the appellant were breached. He referred to Mohammed v. Kano Native Authority (1963) 5 NSCC 326.
Chief Obaro said their arguments in the Court of Appeal were not considered when that court held that there was need for the plaintiff to file a separate affidavit verifying his cause of action, apart from the affidavit in support of his application ex parte to have the writ of summons placed in the undefended list. That order 23 rules 1 and 2 are plain and unambiguous given its ordinary literal meaning. That there was no reason to import into that Rule two separate affidavits since there is no such provision within it. He cited Ogwuche & ors v. Mba & Ors (1994) 4 NWLR (pt. 336) 75 (CA) at 85.
Appellant further stated that even if there was to be a separate affidavit verifying the cause of action of the plaintiff and such was not so filed, that failure would not render the suit incompetent. That the court below should not have struck out the suit but rather sent it back to the trial court for full trial in the general cause list. Also, that the striking out was not one of the reliefs sought by the respondent in the Court of Appeal.
Responding, learned counsel for the respondent, Prince Orji Nwafor-Orizu stated that the Court of Appeal went to the sour of the appeal before it and arrived at the proper conclusion. That the Court of Appeal could not have gone into the other issues raised by the plaintiff/appellant since the suit was not properly fired. He said the ratio decidendi of the decision of the lower court is on the commencement of action under the undefended list under the applicable rules. That the obiter dictum contained in the decision is not so closely linked with the ratio as to be deemed to have radically influenced the ratio. He cited the cases of Ogunbiyi v. Abdulkadir Shola (1996) SCNJ 143 at 153, Adekoba v. UBA Plc (1997) 2 SCNJ 130 at 145; Boothia Maritima Inc. v. Far East Merchantile Co. Ltd. (2001)4 SCNJ 178.
For the respondent was contended that the real issues between the parties as per the judgment is whether the suit was properly commenced and nothing more. That reference to other issues by the judge is not relevant to this appeal. That no decision was taken in limine nor was there a breach of the right to fair hearing as the conclusion contained his position in the lower court which was rejected. That the issues raised in the earlier motion to strike out in the trial court and grounds of appeal are the same.
Having set out the summary of the submissions on either side, what seems to come to the fore as the main bone of contention is whether or not the suit was properly commenced and nothing else since the answer in the negative would end the entire process. The Court of Appeal had held that the supporting affidavit in the motion exparte was not the one to which the respondent could react to under order 23 Rule (1). The reason being that the life span of that affidavit ends with the determination of the ex-parte motion to which the respondent was not a party and in effect had no notice of.
It is to be said that the situation of termination of the life of the affidavit on the consideration of the ex parte motion is not a matter in my humble view for debate as the process of undefended list procedure is a special feature to which the components must be complete if there would be a waiver of the taking of oral evidence. It may be taken to be strict technicality but it is one of those areas where such stringent measures as another supporting affidavit is a necessity and cannot be ignored. In that regard I shall quote the applicable order 23 Rule 1 of the High Court (Civil Procedure) Rules of the Federal Capital Territory, Abuja 1989 and it is thus:
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
2 There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid as many copies of the above-mentioned affidavit as there are parties against whom relief is sought and the registrar shall annex one such copy to each copy of the writ of summons for service.
3(1) If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
(2) Where leave to defend is given under this Rule, the action shall be removed from the undefended list and placed on the ordinary cause list, and the court may order pleadings or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) of this order or is not given leave to defend by the court, the suit shall be heard as undefended suit and judgment given thereon without calling on the plaintiff to summon witnesses before the court to prove his case formally.
5. Nothing herein shall preclude the court from hearing or requiring oral evidence should it so think fit, at any stage of the proceedings under Rule 4 of this Order.”
I have set out the provisions aforesaid leaving out nothing to underscore the fact that the provisions are all embracing and leaving no room for either speculation as to what was intended or how recourse could be anchored on a process well titled “AFFIDAVIT IN SUPPORT OF EX-PARTE APPLICATION” for the trial court’s consideration in a motion for a writ of summons bearing in mind that the ex-parte process was in the absence and without notice to the defendants and had been determined without further life. Therefore without supporting affidavits, the competence of the application for a writ of summons to be handled as undefended is brought to question and there is no gainsaying that the process is invalid being not properly clothed since there would arise the issue, to what would the defendant base his affidavit challenging what the plaintiff is seeking and the follow up question would be, what material would the court be considering in making up its mind that really there is no defence for which the matter would entered into the undefended List and heard and determined as such without any evidence taken. Also for the court to explore the option to find out if the process is best handled under the general cause list thereby necessitating the taking of evidence. These are issues which make the

…………………….I…………………….

supporting affidavit to the motion asking for the Undefended List option mandatory. In this regard I place reliance on John Holt & co (Liverpool) Ltd v. Henry Fajemirokun (1961) ALL NLR 492; Ume v Nigeria Renowned Trade Co. Ltd. (1997) 8 NWLR (pt. 516) 344 at 352.
I see no difficulty in going along with what the Court of Appeal did and with that and the fuller reasons of my learned brother, Olukayode Ariwoola, JSC, I dismiss the appeal and affirm the striking out of the writ of summons for incompetence. I abide by the consequential orders in the lead judgment.

KUMAI BAYANG AKA’AHS, J.S.C: I was privileged to read in draft the judgment of my learned brother Ariwoola JSC. He has exhaustively discussed what the parties must do when a writ of summons is issued and placed on the undefended list. I agree with his resolution of the issues raised in the appeal.
The appeal falls to be determined on whether the appellant complied with Order 23 Rules 1 and 2 High Court (Civil Procedure) Rules FCT 1990 which is now Order 21 Rules 1 and 2 High Court (Civil Procedure) Rules FCT 2004 before he can be entitled to judgment.
The said Order Provides:-
“23 – Rule 1 Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto, enter the suit for hearing on what shall be called the ‘undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
2. There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service”
The rationale of outlining the procedure is simple. At the time the application for the issuance of the writ of summons is made the defendant is presumed to be ignorant of the impending suit since the application is made ex – parte. Secondly, the affidavit in support of the application need not exceed one copy. It is after the application has been granted that the plaintiff is expected to produce sufficient numbers of copies of the affidavit to be annexed to the writ on the undefended list which will be served on each of the defendants in the action. So when the motion dated 31st May, 2000 was filed on behalf of the defendant seeking to strike out the writ of summons, it was made clear that the writ served was not accompanied by a verifying affidavit. The plaintiff/appellant should have reacted by filing an affidavit showing that he submitted the required number of copies of the affidavit to the registrar.
Since the appellant did not react to the motion, it means he did not deliver any copies of the affidavit to be annexed to the writ before being served on the defendant. It is the affidavit evidence annexed to the writ that will necessitate the reaction of the defendant to state whether he has any defence to the claim on the undefended list.
The appellant being a qualified legal practitioner knew the implication of the motion to strike out the writ or even dismiss the suit. He has himself to blame for what has happened.
I find that there is no merit in the appeal and it is accordingly dismissed.
I also make no order as to costs.

Appearances

AND

Before Their Lordships

CHIDI NWAOMA UWA, Justice of The Court of Appeal
JAMES SHEHU ABIRIYI, Justice of The Court of Appeal
ABDULLAHI MAHMUD BAYERO, Justice of The Court of Appeal

Between

1) CHRISTOPHER OKOYE
2) MOSLAC NIG. LTD. Appellants

And

MARKUS ELISHA MBAYA Respondent

…………………….A…………………….

BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal originated from the Adamawa State Upper Area Court No. 2 in case number UAC/24/CV/F1/23/2013 wherein the Respondent as Plaintiff before the trial Upper Area Court sued the 1st Appellant. On 6/11/2013, the Respondent/Plaintiff through his Counsel C. K. Atiman Esq., applied orally to join the 2nd Appellant. The application was granted. Two witnesses PW1 and PW2 testified for the Respondent/Plaintiff. The Appellant/Defendant did not present any witness. The trial Court entered judgment in favour of the Respondent. Dissatisfied, the Appellants appealed to the lower Court. The lower Court delivered its judgment on 19th December, 2016 in favour of the Respondent. Miffed with the judgment, the Appellants appealed to this Court by leave granted on 5th July, 2017. Notice of Appeal was filed on 12th July, 2017. The original Record of Appeal was compiled and transmitted on 8th September, 2017. It was re-compiled and transmitted on 4th October, 2019 but deemed properly transmitted on 14th October, 2019. The Appellants Brief was filed on 29th September, 2017 but deemed properly filed and served on 14th October, 2019. The Respondents Brief was filed on 23rd November, 2017 but deemed properly filed and served on 14th October, 2019.

In the Appellants Brief, three issues are distilled for determination thus:

1) Whether the Lower Court sitting on appeal was right when considering the provision of Section 12(a) of the Area Court Law of Adamawa State it held that the trial Upper Area Court had the jurisdiction to determine the Suit before it having regard to the status of the 2nd Appellant, a non natural person under the law? (Distilled from Ground 1 of the Grounds of Appeal)

2) Whether the lower Court sitting on appeal was right when it held that the subsequent proceedings of the trial Upper Area Court conducted without notice to the Appellants were not in breach of the Appellants right to fair hearing under Section 36 of the Constitution of Nigeria? (Distilled from Ground 2 and 3 of the Grounds of Appeal).

3). Whether the lower Court was right when it dismissed the Appellants Issue four submitted before it while holding that the Respondent proved his case before the trial Area Court despite the material contradictions in the evidence of the two witnesses? (Distilled from Ground 4 of the Grounds of Appeal).

On issue one, Counsel submitted that by the provisions Section 12(1) (a) (b) of the Area Court Law (Cap 11) Laws of Adamawa State 1987, an Area Court can only exercise jurisdiction over a natural person. Thus, the trial Upper Area Court had no jurisdiction to hear and determine the claim of the Respondent before it as against the 2nd Appellant which is a Company

…………………….B…………………….

incorporated under Nigerian laws and thus a non natural person. Section 12(1)(a) (b) is reproduced as follows:

12(1) Subject to the provisions of this Edict and any other written Law, the following persons shall be subject to the jurisdiction of Area Courts:

a) any person whose parents were members of any tribe of tribes indigenous to some part of Africa and the descendants of any such person;

b) any person one whose parents was a member of such tribe;

c) any other person in a cause or matter in which he consents to the exercise of the jurisdiction of the Area Court.

He placed reliance on Uwazurike & 6 Ors. v. AG Federation (2007) 2 S.C. 169 at 179, Gafar v. Government of Kwara State (2007) 1-2 S.C. 189 at 216-217; Mobil Producing Nig. Unlimited v. Monokpo (2004) 9 WRN 84-85 and submitted that the jurisdiction of the Area Court is limited to natural persons.

That the lower Court was referred to and ignored completely the decision of the same lower Court in the case of Union Bank of Nigeria Plc. v. Dr. Musa Dahiru & 1 Or. Suit No. ADSY/18M/2010 unreported judgment of the High Court of Justice of Adamawa State delivered on the 21st of July, 2010, where the lower Court per Hon. Justice Hafsat Abdulrahman held that an Area Court has no jurisdiction over an incorporated company and the case of Fouad Shour v. Fauzija 1971 N.N.L.R Page 133. That the lower Court in its judgment did not even make any reference to the said decisions as to their applicability in the matter.

According to counsel, since the area Court lacks jurisdiction over a non natural person any exercise of such jurisdiction will be ultra vires, null and void and any proceedings thereto will amount to a nullity; relying on Madukolu v. Nkemdilim(1962) 2 SCNLR 341 348. That it is the claims of the parties that give the Court/Tribunal jurisdiction.

He further submitted that since the 2nd Appellant is an artificial person, the lower Court lacks the jurisdiction to hear and determine the matter before it going by the provisions of the Area Court Law Section 12(1) and relying on Mobil Producing Nig. Unlimited v. Monokpo [2004] ALL FWLR (Pt. 195) 575 at 657 paragraph H.

According to counsel, the claim of the Respondent is principally against the 2nd Appellant which necessitated joining the 2nd Defendant on the application of the Respondent. That the suit was incompetent and all proceedings conducted thereto is a

…………………….C…………………….

nullity.

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

On issue two, it was the submission of learned counsel that by the combined effect of Sections 36(1), (2) (3) and (4) and 294 of the Constitution of the Federal Republic of Nigeria 1999 as amended, a Court vested with judicial authority must deliver its judgment in the presence of the parties to the suit, in public and afford the parties the opportunity of appealing against the judgment.

According to counsel, on 4th November, 2014 the Respondents counsel applied for the Appellants to be foreclosed from making any defence as shown at page 20 of the Record. That the Upper Area Court adjourned the matter to 18/11/2014 for judgment (page 21 of the Record). That the Appellants were entitled to be served with hearing notice for the adjourned date of 18/11/2014. More so that the Court failed to deliver the judgment on the 18/11/2014 and chose the 23/12/2014 when it delivered same.

That no hearing notice was served on the Appellants of the judgment of the 23/12/2014 as reflected on pages 21-22 of the Record. This, counsel submitted is a breach of the right of fair hearing of the Appellant. He referred to Achuzia v. Ogbomah 2016 Vol. 262 LRCN 91 at 103-105 where it was held that in the process of adjudication in a Court of law, service of processes and hearing notice on the defendant is sine qua non to the assumption of jurisdiction by a Court except in matters which the law permit to be heard ex-parte. Thus the Court must satisfy itself of proof of notice of hearing before it proceeds to hear the matter and give judgment on the evidence adduced before it. Where a Court fails to do so, and proceeds to hear the case, the proceeding, no matter how well conducted is a nullity. A Court of law must satisfy itself that all parties had notice of hearing of a matter before it assumes jurisdiction to hear and determine the case. Failure to do so renders the entire proceedings a nullity. That the Court further held that the service of hearing notice on the defendant is a Constitutional matter as provided under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.

On issue three, counsel submitted that the trial Court was wrong to have granted the claims of the Respondent/Plaintiff when he has not proved same. That the law is settled that a Plaintiff must succeed on the strength of his own case not on the weakness of the defence. He cited the case of Nwavu v. Okoye (2009) ALL FWLR(Part 451) page 815 at page 840 paragraphs E-G.

…………………….D…………………….

That there was material contradiction in the name of PW2 whether it was Engineer Robinson Isaac or Robinson Isiah. Yet the lower Court relied on the testimony from the witness to give judgment against the defendants. According to counsel, PW1 could not prove his claims before the lower Court because the witness under cross examination did not state the exact amount he claimed from the Appellant; nor was he able to state the extent of the work he did for the Appellant and the amount due. All these according to counsel go to show that the Respondent did not prove his case before the lower Court to be entitled to judgment. He placed reliance on the case of Victabio Ventures Ltd. v. W. Van Der Rwan Z.N.B.V (2009) ALL FWLR (Part 490) page 56 at page 80 and urged this Court to resolve issue three in favour of the Appellant, allow the Appeal and set aside the judgment of the lower Court.

In his response, learned counsel for the Respondent submitted that they have formulated three issues for determination thus:-

1. WHETHER LOWER COURT WAS RIGHT TO HOLD THE TRIAL COURT HAD JURISDICTION OVER THE 2ND APPELLANT AND WHETHER THE JUDGMENT OF THE COURT CAN STAND WITHOUT HIM.

2. WHETHER THE LOWER COURT WAS NOT RIGHT TO HOLD THAT THE APPELLANTS WERE ACCORDED FAIR HEARING AT THE TRIAL COURT.

3. WHETHER THE LOWER COURT WAS NOT RIGHT WHEN IT HELD THAT THE RESPONDENT WAS ABLE TO PROVE HIS CASE AT THE TRIAL COURT.

On issue one, it is submitted that there is no place in the entire Area Court Civil Procedure Rules or Area Court Edict that states that Area Court can only adjudicate on natural persons. That Section 12(1)(a)(b) is meant to take care of a situation where the parties are natural persons in order to protect foreigners so that native laws are not applied against them unless they surrender themselves to the jurisdiction of the Court. That there is no ambiguity in the wordings of the section.

That the case of Union Bank of Nigeria Plc. v. Musa Dahiru & 1 Or. (Supra) which the Appellant refers to is a decision of Adamawa State High Court which is a Court of coordinate jurisdiction with the lower Court, as such that decision is of persuasive and not binding authority. That the Appellant’s counsel is limiting his argument to Section 12(1)(a)(b) of the Area Court Law ignoring sub Section (c) of the same law which provides:

…………………….E…………………….

“…and other person in a cause or matter in which he consents to the exercise of the jurisdiction of the Area Court.”

According to Counsel, since the 2nd Appellant participated in the proceedings at the lower Court with his Counsel, he is estopped from complaining now. He further referred to Sections 13 (1) of the Area Court Rules Cap. 11 Laws of Adamawa State 1987 which provides:-

“where at any stage of the proceedings before final Judgment in any cause or matter (whether Civil or Criminal) in an Area Court a person alleges that he is not subject to the Jurisdiction of Area Court, such proceedings shall on the application of such person to the High Court be transferred to the High Court that shall inquire into and determine the truth of such person’s allegation.”

That Order 3 Rule 3 of the Area Court Civil Procedure Rules, 1971 which provides:-

“Service on a Local Authority shall be effected by the provision of Section 117 of Local Authority Law.”

According to counsel, from the above provisions, the Area Court has jurisdiction to try the 2nd Appellant. Counsel further submitted that the Respondent before the trial Court on page 6 of the Record lines 9-10 told the Court that:-

“I informed the 1st Defendant of my intention to sue. That is why I am before the Court to seek my money from the 1st Defendant.”

That the lower Court in its judgment contained on pages 19-25 especially paragraph 2 of the judgment held:

Consequently, I hereby enter Judgment for the Plaintiff and further ordered as follows:

1. That the 1st Defendant who is the owner of the 2nd Defendant pay the Plaintiff the sum of N1,670,000.00 being outstanding balance due to the Plaintiff from the 1st Defendant for the hire of the Plaintiff constructions vehicle of a grader and an excavator.

2. The Defendants are to pay the Plaintiff 10% interest on the Judgment sum of N1, 670,000.00.

That from the above, it is clear that the Respondent asked for his balance from the 1st Defendant who is a natural person. That with or without the 2nd Defendant/2nd Appellant being a party, the Plaintiff/Respondents claim can still stand against the 1st Appellant. He urged the Court to resolve issue one in favour of the Respondent.

As to issue two, Counsel submitted that contrary to the submissions of the Appellants Counsel, there is nowhere in the 1999 Constitution that states that judgment of Court must be delivered in the presence of parties.

…………………….F…………………….

That Section 36(1) talks about fair hearing within a reasonable time, Section 36(1) talks about person whose right has been violated to be represented which of course the Appellants were represented, Section 36(3) talks of delivering Judgment in an open Court which the trial Court did and Section 36(4) talks of reasonable time in criminal cases, strange enough, this is a civil matter.

It is submitted that when the case came up on 15/10/2014 both counsel were in Court and the matter was adjourned for the last time to 4/11/2014. That still on the said date both the Defendant and his Counsel were absent. That judgment was not delivered on that day until 23/12/2014. That the question to be answered is whether a judgment of a Court can be set aside because it was delivered without notice to the other party? He referred to the case of Cotecna International Ltd. v. Church gate (Nig.) Ltd. (2011) ALL FWLR (Pt. 575) 261 at 262 where the Supreme Court held that:-

it would appear to me and I am of the view that the delivery of Judgment earlier than scheduled date without notice to the Appellant will not nullify the Judgment unless the Appellant show that it has resulted in miscarriage of justice, the Appellant has not shown that any miscarriage of justice has occasioned because its counsel was not present when the Judgment was read. It is not shown that if the Appellants counsel had listen to the Judgment which was in open Court, the decision could have been otherwise.

According to Counsel, it was not shown how the delivery of the judgment in Appellants Counsel absence occasioned any miscarriage of justice or that the judgment would have been in his favour for the simple fact that he was around.

On the complaint that the Appellants were foreclosed from their defence as shown at page 8 paragraph 4:04 of the Appellants Brief, it is submitted that after the Plaintiff/Respondent closed his case on 17/12/2013 as contained on page 16 of the record, the matter was adjourned to 29/1/2014 for defence. The case came up on 29/4/2014 where it was adjourned at the instance of the Defendant/Appellant to 5/6/2014. That on the said date, both Defendants/Appellants and their Counsel were absent and the matter was adjourned to a date both counsel agreed on. That Counsel agreed to go back on 29/9/2014 for defence. That on the said date, the Defendants/Appellants and their Counsel were absent and the matter was further adjourned to 15/10/2014 and hearing notice was served on their Counsel.

…………………….G…………………….

It is submitted that on the said 15/10/2014, Defence Counsel appeared and told the Court that his client (not witness) was unable to make it, the matter was adjourned to 4/11/2014 for the last time for defence.

That on 4/11/2014, both the Defendants/Appellants and their Counsel were absent, the Court foreclosed them.

It is submitted that the Appellants were given reasonable opportunity to enter their defence but failed to do so. He referred to Umaru v. Tunga (2012) ALL FWLR Pt. 607 726 at 740 paragraph E where it was held:

Where a Court created the enabling environment for fair hearing to all and a party did not take advantage of the environment, the fault is his and not that of the Court. In instance case, where the Defendant failed to take the opportunity created by the trial Court to present his case the allegation of breach of fair hearing was discountenanced by the Court.”

On the complaint in respect of the mode of execution of the judgment by the trial Area Court, it is submitted that the Appellant had the right to Appeal within 30 days but did not do that. That there is no law that says the judgment creditor must wait until 30 days for the aggrieved party to Appeal before the judgment is executed.

That Order 17 Rule 2 of the Area Court (Civil Procedure) Rules, 1971 permits the Judge to make a special order for immediate execution; and that was what the trial judge did based on the application of the Judgment Creditor/Respondents contained on page 29 of the Record. That Order 19 Rule 4 provides for a five day window period between execution of a judgment and auction sale. It is submitted that while execution was levied on 24/12/14, auction sale was conducted on 31/12/14 a period of seven days over and above the statutory requirement of five days minimum.

On issue three, it was submitted that the trial Court was right to have granted the Plaintiff/Respondents reliefs sought, as he led evidence through PW1 and PW2 in support of his claims. That evidence was led on the grader hired at N80, 000 per day for 12 days totaling N690, 000, that evidence was led on the hiring of excavator at N110,000 per day times 11 days totaling N1,210,000.00. That evidence was led on the payment made to the Plaintiff totaling N500,000 leaving an unpaid balance of N1,670,000 which is the amount in respect of which judgment was entered. According to Counsel, cases are decided on preponderance of evidence and balance of probabilities relying on Sterling Bank Plc. v. Falola (2015) ALL FWLR (Pt. 774) 5.

…………………….H…………………….

That the Respondent has discharged the burden as expected of him before the trial Upper Area Court. According to Counsel, there is no material contradiction in the names of Isiah and Isaac. That Robinson Isiah is the project manager of the 2nd Appellant while Isiah is the site manager. He referred to the case of Taiwo v. Ogundele (2012) ALL FWLR Pt. 639 Page 1033 at 1048 Paragraphs F-G and urged the Court to resolve the third issue in favour of the Respondent and dismiss the Appeal.

RESOLUTION OF THE APPEAL

I will determine this Appeal based on the three issues formulated by the Appellant which are similar on all fours with those formulated by the Respondent. On issue one whether the lower Court was right when it held that the trial Upper Area Court had jurisdiction over the second Appellant a non natural person, it is important to refer to Section 12 (1)(a)(b)(c) of the Area Court Law (Cap 11) Laws of Adamawa State 1987 which provides:-

12(1) Subject to the provision of this Edict and any other written Law, the following persons shall be subject to the jurisdiction of Area Courts:

a) Any person whose parents were members of any tribe or tribes indigenous to some part of Africa and the descendants of any such person;

b) Any person one of whose parents was a member of such tribe;

c) Any person in a cause or matter in which he consents to the exercise of the jurisdiction of the Area Court.

In the instant case, a careful look at the record of proceedings of the trial Upper Area Court contained at Pages 4 30 of the Printed Record, the Appellants/Defendants consented and submitted to the jurisdiction of the trial Upper Area Court by participating in the proceedings through their Counsel Ehimikhua Esq., who appeared on their behalf and even cross-examined PW1 and PW2 the (Respondent/Plaintiffs witnesses). Section 12 (1)(c) Area Court Law (Cap 11) Laws of Adamawa State ,1987 was therefore complied with by the trial Upper Area Court. The lower Court was therefore right when it held that the Upper Area Court had the jurisdiction to determine the Suit. Issue one is therefore resolved in favour of the Respondent and against the Appellants.

Issue two is whether the lower Court was right when it held that the Respondents were accorded fair hearing. The grouse of the Appellants/Defendants is that the Upper Area Court foreclosed them from entering their defence and that when the Upper Area

…………………….I…………………….

Court delivered its judgment on 23/12/14 instead of 18/11/14; it ought to have put them on notice. On the issue of denying the Appellants their Constitutional right to enter their defence, it is trite that a Court should give parties reasonable time to present their case before it. If the Court affords parties the opportunity to present their case before it, any party that fails to utilize such opportunity cannot complain of lack of hearing. Page 16 of the Printed Record shows that when the Respondent/Plaintiff closed his case on the 17/12/13 the case was adjourned to 29/1/14 for defence. On the returned date, it was further adjourned to 4/03/14 for defence, again adjourned to 18/03/14, 29/4/14 and 5/06/14 for defence. On 5/06/14, it was adjourned to 29/09/14 and hearing notice ordered to be served on the Appellants/Defendants. On 29/09/2014 case was adjourned to 15/10/14. On the said date, Appellant/Defendants Counsel applied for another date for defence. It was adjourned to 4/11/2014. On the returned date neither the Appellants/Defendants nor their Counsel was in Court and the Court adjourned the case to 18/11/14 for judgment. From 17/12/13 to 4/11/14 when the Upper Area Court adjourned for judgment is a period of almost a year but still the Appellants/Defendants were not able to present their defence. In the case of Umaru v. Tunga (2012) ALL FWLR (Part 607) 726 at 740 it was held that:-

Where a Court created the enabling environment for fair hearing to all and a party did not take advantage of the environment, the fault is his and not that of the Court. In the instant case, where the Defendant failed to use the opportunity created by the trial Court to present his case the allegation of breach of fair hearing was discountenanced by the Court.

The lower Court was therefore on a sound footing when it held in its judgment reflected on Page 72 of the Printed Record that the trial Court was right to foreclose the Appellants/Defendants after giving them several adjournments to enter their defence but failed to do so.

On the issue that the lower Court adjourned the case to 18/11/14 for judgment but did not deliver same until 23/12/14 without hearing notice served on the Appellants/Defendants; from the Printed Record at Pages 21-28 it is shown that on 4/11/14, the case was adjourned to 18/11/14 for judgment. On the return date, the Court did not sit to deliver the judgment. The judgment which is contained at Pages 22-28 of the Printed Record was delivered on 23/12/14. The Respondent/Plaintiff was represented by Counsel, while the Appellants/Defendants were not in Court nor were they represented by Counsel. The issue for

…………………….J…………………….

determination is what is the effect of delivering the judgment of the trial Upper Area Court after the scheduled date without notice to the Appellants/Respondents? In the case of Cotecna International Ltd. v. Church Gate (Nig.) Ltd. (2011) ALL FWLR (Pt. 575) 261 at 262, the Supreme Court held:

It would appear to me and I am of the view that the delivery of judgment earlier than scheduled date without notice to the Appellant will not nullify the judgment unless the Appellant show that it has resulted in a miscarriage of justice. The Appellant has not shown that any miscarriage of justice has occasioned because its counsel was not present when the judgment was read. It is not shown that if the Appellant counsel had listened to the judgment which was delivered in open Court, the decision could have been otherwise.

In the instant case, the Appellants have not shown that the delivery of the judgment on a later date of 23/12/14 rather than the earlier date of 18/11/14 without hearing notice to them had occasioned any miscarriage of justice to them; or that the judgment which was delivered in open Court could have been otherwise if the Appellants or their counsel had listened to it. Furthermore, in the case of Veritas Insurance Company Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 363 this Court held:

Parties and or their counsel sit in Court and listen to the judgment being delivered.

They do not play any role beyond listening and at times taking down random notes in the course of the delivery of the judgment. Some do not take notes, they just listen and leave Court at the end of the judgment with the usual clich as the Court pleases even when the pleasure of the Court is not the pleasure of the party who lost the case .Perhaps the position should have been different if the matter was at the stage of physically taking evidence or at the point of address.

The second issue is therefore resolved in favour of the Respondent and against the Appellants.

The third issue for determination is whether the lower Court was right when it held that the Respondent proved his case before the trial Upper Area Court. The claims of the Respondent/Plaintiff before the trial Upper Area Court as reflected at Page 23 of the Printed Record are as follows:-

a) The sum of N1,670,000 being the outstanding balance remaining unpaid from the hire and use of the Plaintiffs two (2)

…………………….K…………………….

construction machines.

b) 10% interest on the judgment sum.

The evidence of the Respondent/Plaintiff contained at Page 8 of the Printed Record shows that the 1st Appellant went to the Respondent and hired an excavator and a grader. The grader was hired for 12 days at N80,000 per day making the total money to N960,000. The excavator was hired at N110,000 per day for 11 days which totals N1,120,000. That the sum total is N2,170,000.00. That the 1st Appellant paid to the Respondent N500,000, leaving the unpaid balance of N1,670,000.00. This Court observes that the evidence of PW1 was not discredited during cross-examination as shown on page 12 of the printed record. The other complain of the Appellant is that while the Respondent as PW1 stated that at page 12 of the printed record that the name of the site engineer is Isaac, he called one Engineer Robinson Isaiah (page 14-15 of the record) with no explanation as to the two names. That PW1 also stated at pages 12-13 of the printed record that besides this work which we did on credit there are other previous works which we did. I can’t remember how much was paid for the previous work we did for him. This was in 2012 but I can’t remember the money paid. According to Counsel, these are material contradictions that go to the root of the Respondents claim before the trial Upper Area Court which it did not advert its mind to. On the side of the Respondent, it was argued that evidence was led as to the claims of the Respondent upon which the trial Court entered judgment in favour of the Respondent.

It is trite that contradictions in the evidence of witnesses may not necessarily be fatal to a case especially when they are minor, and the judgment of a trial Court will not be reversed on appeal because there were contradictions in the evidence of witnesses, it must also be shown that the Court did not advert its mind to those contradictions. See Taiwo v. Ogundele (2012) ALL FWLR (Pt. 639) 1033 at 1048 Paras. F-G.

In the instant case, the lower Court at Pages 71-72 of the Printed Record adverted its mind to the alleged material contradictions raised by the Appellants. The lower Court held:-

On issue four, it is the contention of the Appellant that the Plaintiff/Respondent never prove his case. His argument was that under cross examination PW1 testified that he wrote the name of the 1st defendant as Christopher as given to him, and the

…………………….L…………………….

name of the Engineer as Isaac; but PW2 testified that the name of the Engineer is Robinson, and there was no attempt to clarify the name Robinson Isaiah and Isaac and yet the Court relied on their testimonies. In my view, the fact that there was misdescription of the said Engineer whether the surname was Isaac or Isaiah did not change the substance of the claim of the Plaintiff/Respondent from the Defendants/Appellants. The claim of the Plaintiff/Respondent is clear. It was for services of machineries hired by the Defendant/Appellant which has not been settled for.

For this reason, the Plaintiff/Respondent has proved his claim as required by law, moreover, the Defendants/Respondents did not offer any defence for these claims at the trial Court.”

As I stated earlier, the lower Court had adverted its mind to the alleged contradictions as highlighted above. This Court will not interfere with such finding of the lower Court since it is not perverse. The third issue is accordingly resolved in favour of the Respondent and against the Appellant. Having resolved the three issues against the Appellant, this Appeal lacks merit and is hereby dismissed. I affirm the judgment of the lower Court delivered on 19/12/2016 which affirmed the decision of Upper Area Court 11, Yola. Parties to bear their respective costs.

UWA, J.C.A.: I read in advance a draft copy of the judgment of my learned brother, ABDULLAHI MAHMUD BAYERO, J.C.A., just delivered. I agree with my learned brother’s reason and decision arrived at, that the Appeal is lacking in merit. I also dismiss the appeal for lacking in merit and abide by the order made as to costs in the leading judgment.

ABIRIYI, J.C.A.: I agree.

Representation

M.J. Ifegwu, Esq. For the Appellants

C.K. Atiman,Esq. For the Respondents

Before Their Lordships

IBRAHIM TANKO MUHAMMAD, Justice of the Supreme Court of Nigeria

OLUKAYODE ARIWOOLA, Justice of the Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD, Justice of the Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS, Justice of the Supreme Court of Nigeria

AMINA ADAMU AUGIE, Justice of the Supreme Court of Nigeria

Between

1.CHIDUME OKORO

2.ADA CHIDUME OKORO Appellants

And

IKECHI OKORO Respondent

…………………….A…………………….

M.D. MUHAMMAD, J.S.C. (Delivering the Leading Judgment): At the Lagos State High Court, hereinafter referred to as the trial court, the respondent as the plaintiff took out a writ against the appellants as defendants thereat claiming jointly and severally:

“(a) The sum of $184,512.02 or N25,831,682, 80 its Naira equivalent payable by the defendants to the claimant being outstanding balance of money lent to the defendants by the claimant.

IN THE ALTERNATIVE

The claimant claims against the defendants jointly and severally the said sum of $184,512,02 or N25,831,682.80 its Naira equivalent payable by the claimant being outstanding balance of money had and received by the defendants for use of the claimant for a consideration that has totally failed.

(b)Interest of on the said sum at rate of 30% per annum until payment.”

By his motion on notice dated 9th day of August 2004 the plaintiff/respondent, pursuant to order Order 11 rule 1 of the High Court of Lagos State(Civil Procedure) Rules, prayed the trial court to enter final judgment against the defendants/appellants who had no defence to his claim as contained in the writ.

In support of plaintiff/respondent’s application is a fifteen paragraph affidavit sworn to by Kizito Roberts to which exhibits A and B, photocopies of promissory notes and a photocopy of a Debt Repayment Agreement dated 31st March 2003 all executed by the parties.

The defendants/appellants filed their amended statement of defence which contains a counter-claim and a counter affidavit in opposing respondent’s application.

…………………….B…………………….

The facts in support of his motion for summary judgment at the trial court is, inter-alia, that in order to enhance the joint venture business they established,the plaintiff/respondent advanced funds to the defendants/appellants. The joint venture having failed, the two sides agreed that the funds be converted into a loan. Exhibits A and B were thus executed by the defendants/appellants who,by a payment agreement, acknowledged their indebtedness to the plaintiff/respondent in the sum $254,512.02 and undertook to repay the amount on or before 31-07-03. It is respondent’s case also that the defendants/appellants who had made a part payment of $70,000 however refused to pay the balance since then. The respondent avers that appellants who cannot resile from exhibits A and B have no defence to his claim.

In opposing the application, the defendants/appellants by their pleadings,counter-affidavit and written address, assert that because the respondent had obtained exhibits A and B by misrepresentation the two are unenforceable; that the plaintiff/respondent who has been overpaid, the sum of $101,416.00, for which sum the defendants/appellants counter claim be ordered to pay same or its equivalent and 30% interest thereon till the final liquidation of the sum.

In determining the plaintiff/respondent’s application the trial court, seepage 204 of the record of appeal, concluded thus:-

“For the reasons adumbrated above, I am satisfied that the defendants have no good defence to the claimants claim.Judgment is therefore entered for the claimant/applicant against the defendants/respondents in the sum of $184,512.02 or N25,831,682.80 its Naira equivalent. Interest shall be paid on the said sum at the’ rate of 30% per annum until the date hereof and thereafter at the rate of 6% per annum until final liquidation.”

…………………….C…………………….

Dissatisfied by the decision, the defendants at the trial court appealed to the Court of Appeal, Lagos Division, hereinafter referred to as the lower court, on a notice containing five grounds dated 10th day of March 2006. In affirming the decision of the trial court and dismissing the appeal; the court at page 369 of the record of appeal enthused in part thus:-

“Decision of the apex court and this court abound in which the purpose of the summary trial is adequately explained and duly applied……. In most cases, the procedure is designed to expedite the hearing of a suit for the recovery of a debt or liquidated money demand.

The procedure is not aimed at shutting out a defendant. Indeed,it does not rather, it is designed to ensure a quick dispensation of justice where there is no prima facie defence to the claim. Defence is allowed only on the presentation of triable issues…. This appeal fail. The decision of the trial court is hereby affirmed.”

Still aggrieved, the appellants have further appealed to this court vide their notice dated 20th July 2009 containing two grounds.

At the hearing of the appeal, having identified their earlier filed and exchanged briefs, parties adopted and relied on same as their arguments for and against the appeal.

The lone issue formulated at paragraph 3 of the appellants’ brief of argument reads:-

“Whether the learned justices of the Court of Appeal were right in affirming the summary judgment of the High Court in spite of the counter affidavit,

…………………….D…………………….

statement of defence and counter claim before the court.”

The similar issue distilled by the respondent at paragraph 4 of his brief as arising for the determination of the appeal reads:-

“Whether or not the dismissal of the appellants appeal by the court below is justified in law.”

On their sole issue, learned appellants’ counsel submits that the summary judgment procedure resorted to by the respondent at the trial court, which decision the lower court affirmed, is neither designed to shut out a defendant nor to allow courts give hasty judgments. Once the defendant shows a triable issue, it is contended, the court is duty bound to allow him defend the claim by transferring the case to the general cause list. In the case at hand, it is further contended, the appellants as defendants have proffered five reasons in their counter-affidavit in opposition to the respondent’s claim on each of which the courts would have ensured full trial. The trial court limited itself to considering only two, the three promissory notes and the Debt Repayment Agreement, it is contended, in determining whether the appellants had raised triable issues to be allowed to defend the claim. The lower court unhesitatingly, it is submitted,endorsed the trial court’s wrong conclusions. A judge urged to determine whether or not the defendant has disclosed a triable issue, it is submitted, must scrutinize all the processes filed by the parties. The judge must maintain even balance,by not unduly relying on the processes of the claimant alone. Relying inter-alia on Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283:at 310; Muobike v. Nwigwe (2000) 1 NWLR Pt 642 at 620; Kabiru v. Ibrahim(2004) 2 NWLR (Pt. 857) 326; F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688 at 699, learned counsel urges that the decisions of the two courts which ignored some of the defences the appellants disclosed in their counter affidavit and occasioned

…………………….E…………………….

miscarriage of justice be set-aside. Learned counsel further urges that respondent’s claim be transferred to the general cause list for same to be fully tried.

Responding, learned counsel submits that the appeal being against the concurrent findings of fact, this court, is hesitant to interfere except where both judgments are perverse. Citing the decisions in Olokotintin v. Sarumi (2002)FWLR (Pt. 122) 80, (2002) 13 NWLR (Pt. 784) 307; Chime v. Chime (2001) 1SC (Pt. 2) 1; (2001) 3 NWLR (Pt. 701) 527; Okagbue v. Romaine (1982) 5 SC133 and Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37,learned counsel submits that having failed to show any substantial error in the two judgments or the miscarriage of justice the two occasioned, the appeal has failed and necessarily needs to be dismissed.

Further arguing the appeal, learned counsel submits that exhibits A and B, the promissory notes provided the main plank of the concurrent decisions of the two courts. The two exhibits, it is contended, clearly convey the intentions of the parties regarding appellants’ indebtedness. The transaction between the parties as conveyed in exhibits A and B, it is further submitted, does not violate the Money Lenders Law of Lagos State 2004 as asserted by the appellants in the trial court. The issue of money lending and the interest for such, it is submitted,were never raised at the lower court. They were only raised at the trial court. Relying on Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; P. N. Udoh Trading CoLtd. v. Abere & anor (2001) 5 SC (Pt. 2) 64 at 81, (2001) 11 NWLR (Pt. 723) 114 learned counsel submits that the issue being a fresh one and canvassed without the leave of this court be entirely discountenanced.

Still on the issue of interest, the lower court at page 376 of the record of appeal, it is argued, has found that though the appellants had raised the

…………………….F…………………….

issue before it but having proffered no arguments in support of the issue they were deemed to have abandoned same. Appellants, it is submitted, cannot raise the issue now. Besides, it is submitted, the lower court has made a further specific order that appellants had failed to produce the order of the Central Bank of Nigeria (CBN) order fixing interest rate at 21% per annum. None of the two grounds of appeal in the appellants’ notice is on these aspects of the lower court’s valid subsisting decision. The consequence of all this, learned counsel submits,is that the arguments have no legal basis. Relying inter-alia on Unity Bank Plc v. Bouari (2008) 7 NWLR (Pt. 1086) 372 at 400 and Dabo v. Abdullahi (2005)7 NWLR (Pt. 923) 181; General Oil Ltd. v. F.S.B. Int Bank Plc (2005) 5 NWLR(Pt. 919) 579 and Akpan v. A.I.P. & Inv C. Ltd. (2013) 12 NWLR (Pt. 1368)377, learned counsel concludes that the concurrent judgments of the two courts’correct application of the principles on summary judgment procedure cannot be tampered with. He urges that the sole issue be resolved against the appellants and the appeal dismissed.

My lords, this appeal is appellants’ further bid to have the summary judgment obtained by the respondent against them set-aside. Both courts below have found appellants’ counter- affidavit in opposition to respondent’s application for summary judgment devoid of any defence on the merit to the latter’s claim against them. Learned appellants’ counsel has urged us to re-evaluate the affidavit evidence for and against respondent’s application for the summary judgment and hold, by virtue of facts therein, otherwise.

The evaluation of evidence, including documentary evidence, is the primary responsibility of the court of first instance. The appellate court, however,has the duty of intervening where the trial court failed to or wrongly evaluated evidence and for that reason arrived at a decision that occasioned miscarriage of justice. See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Musa v. Ibrahim(1975) 5 SC 55 and Uka v. Irolo (2002) 7 SCNJ 137,

…………………….G…………………….

(2002) 14 NWLR (Pt.786) 195. In the case at hand since the evidence to be re-evaluated is affidavit evidence, this court, like the lower court, is in as good a position as the trial court.The credibility of the deponents of the evidence is not in issue to have given the trial court, which would have seen and observed the witnesses while they were testifying, the advantage this court understandably would have lacked. See Woluchem v. Gudi (1981) 5 SC 291 and Abisi & ors v. Ekwealor & anor (1993)6 NWLR (Pt. 302) 643.

Now, like in the two courts below the merit of this appeal lies in the ability of the appellants to disclose, through very clear and cogent facts in their deposition,that they have defence in whole or in part to respondent’s claim for this court to set-aside the concurrent findings of the two courts below. The appellants will,again, fail if by the facts in their counter affidavit, they do not disclose good defence to respondent’s suit or sufficient facts to entitle them defend same. See Nishizawa v. Jethwani (1984) 12 SC 234 at 260; Planwell Watershed Ltd. & anorv. Chief Vincent Ogala (2003) LPELR- 2020 (SC); (2003) 18 NWLR (Pt. 852)478.

The appellants assert that they merit being allowed to defend respondent’s action for the reasons disclosed in their counter affidavit thus:-

(i)That exhibits A & B, the promissory notes on which the action fundamentally rests, being obtained by misrepresentation render the claim unenforceable.

(ii)That the action stands in breach of the Lagos State Money Lenders Law.

(iii)That not being a bank and, further, the excessive interest the respondent claims in addition to the principal sum makes both illegal and unrecoverable.

…………………….H…………………….

(iv)The over payment done to the respondent by Tadacom Co Ltd, on behalf of the appellants on which the latter’s counter claim hinges equally constitute a triable issue.

The two courts, on the basis of the facts contained in appellants’ counter affidavit in relation to the facts in support of respondent’s motion, are not convinced, and rightly too, that the appellants deserve to be allowed to defend the suit in a full trial.

By paragraphs 6 and 7 of the affidavit in support of respondent’s motion,which are neither challenged nor controverted, exhibit A the promissory notes and exhibit B, the Debt Repayment Agreement, are all documents voluntarily executed by the parties. The misrepresentation, the appellants contend vitiates the two, is neither ex-facie visible in the documents nor sustainable either by any averment in the appellants’ counter affidavit and/or statement of defence.

It is trite that like any such agreements, exhibits A and B only bind parties thereto. No court has the power to either enforce it against outsiders or deny any of the parties thereto the benefits which enure to it on the basis of a purported liability to a person outside the agreement. Not having been made a feature of exhibit A and B, it follows, therefore, that the purported over payment to the respondent, on behalf of the appellants, by a third party, both courts below are right, does not constitute a triable issue, See Rossiter v. Miller (1878) 3 AC 1124at 1151; United Bank for Africa Ltd. v. Tejumola Sons Ltd. (1988) LPELR-3402(SC); (1988) 2 NWLR (Pt. 79) 662 and A.G. Ferrero & Co. Ltd. v. Henkel Chemicals Nigeria Ltd. (20ll) LPELR-12 (SC), (2011) 13 NWLR (Pt. 1265) 592.

Addedly, appellants seem to forget that a counter claim is a separate,distinct and independent action to that of the respondent. Neither

…………………….I…………………….

of the two claims depends on the other for its success. As each must be separately proved by credible evidence, none is defence to the other. See Maobison Inter-link Associated Limited v. U.T.C Nigeria Plc (2013) LPELR- 20335 (SC); (2013) 9NWLR (Pt. 1359) 197 and Kyari v. Alkali & ors (2001) 11 NWLR (Pt. 724) 412.

On the issue whether or not the respondent’s claim is unenforceable for being in breach of the Lagos State Money Lenders Law, the trial court proceeded at pages 202-203 of the record to interprete section 2 thereof thus:-

“… It provides for four specific instances when a person is not a money lender within the meaning of the law. The provision contained in C is in my view particularly relevant and important.

It provides as follows:

‘any person bona fide carrying on the business of banking or insurance or bona fide carrying on any business, not having for its primary object the lending of money, in the course of which and for the purposes whereof he lends money.’

A careful consideration of the statement of claim filed reveals that there is no averment therein contained showing that the claimant is involved in the business of money lending while the description of the claimant as contained in the statement of claim was not disputed in the statement of defence.” (Underlining supplied for emphasis).

On the issue whether the interest aspect of respondent’s claim disentitles him to recover the debt, the trial court held at page 203 of the record thus:-

…………………….J…………………….

“In Veritas Insurance Company Ltd. v. Citi Trust Investment(Supra) the learned and distinguished Tobi, JCA (as he then was)held as follows:

‘it is certainly not my understanding of the law that once a plaintiff claims interest on an amount the transaction automatically comes within the ambit or purview of the money lenders law, that is certainly new learning to me and I will refuse to learn it. There is no such provision either in the money lenders Law or in any other law.’

It therefore seems to me from the foregoing that this is a matter of simple contract which does not come within the ambit or purview of the Money Lenders Law and I so hold.” (Italics supplied for emphasis).

The foregoing are the other findings of the trial court which learned appellants’ counsel insists are wrongly affirmed by the lower court. I disagree.Like the lower court, this court being appellate as well, will only interfere with findings of the trial court that are perverse. As already demonstrated in this judgment, all the findings of the trial court which the lower court affirmed draw from the evidence on record and/or are in relation to the court’s application of the law to the evidence as ascertained. The lower court’s affirmation of the trial court’s findings would have been wrong if the findings are perverse in themselves.As it is, they are not. The appeal being against the concurrent findings of the two courts must, invariably, fail here too.

Like the two courts below, it is my firm and considered view that it is unjust to allow the appellants to rely on the sham they purport to be their defence to respondent’s claim to further delay and manipulate the recovery of what has clearly fallen due. See Ogunjumo & ors v. Ademolu & ors (1995) LPELR-2337(SC); (1995) 4 NWLR (Pt. 389) 254 and Fajemirokun v. Commercial Bank Nigeria Ltd. & anor (2009) LPELR-1231 (SC); (2009) 5 NWLR

…………………….K…………………….

(Pt. 1135) 588.

In U.T.C., (Nigeria) Ltd. v. Chief J.P. Pamotei & ors (1989) LPELR-3276(SC); (1989) 2 NWLR (Pt. 103) 244 at page 282 para. D this court has long determined the fate of the likes of the appellants thus:-

“A defendant whose affidavit or oral examination by the judge does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the plaintiff from entering summary judgment.”

The unmeritorious appeal is resultantly hereby dismissed at a cost N300,000.00k (Three hundred thousand naira) against the appellants in favour of the respondent.

I.T. MUHMMAD, J.S.C.: Dissatisfied with the decision of the Court of Appeal,Lagos Division which was delivered on the 13th day of July, 2009, the appellants appealed for this court and distilled only one issue. The issue distilled by the appellants for determination of this appeal is whether the learned Justice of the court below were right in affirming the summary judgment of the trial court,inspite of the counter affidavit, statement of defence and counter claim before the court?

My learned brother, M.D. Muhammad, JSC, afforded me an opportunity to read before now, his draft judgment just delivered. He dismissed the appeal for lack of merit. I, too, dismiss the appeal for lack in merit. I abide by all consequential orders made in the lead judgment.

ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Augie, JSC just delivered. I agree

…………………….L…………………….

entirely with the reasoning therein and the conclusion arrived thereat, that the appeal lacks merit and should be dismissed. I too will dismiss the appeal for lacking in merit.

Appeal dismissed

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

AKA’AHS, J.S.C.: I had a preview of the leading judgment of my learned brother, M. D. Muhammad, JSC in which he dismissed the appeal as lacking in merit. I agree with his reasoning and conclusion that the appeal is devoid of merit.

The plaintiff now respondent instituted the action against the defendants/appellants before the Lagos State High Court in suit No.. LD/1500/2004 claiming the sum of $184,512.02 or N25,831,682.80 (its Naira equivalent) payable by the defendants to the claimant being outstanding balance of money lent to the defendants by the claimant.

In paragraphs 4, 5, 6, 7, 8, 9 and 10 of the statement of claim, the claimant averred as follows:-

“4. Sometime in 1990 the defendants approached the claimant and one Mr. Xavier Washington to invest in the company to enhance the volume of its transaction and export capacity.

5.The joint venture agreement failed as a result of which both the claimant and the defendants agreed that the monies owed the claimant be converted to loan.

…………………….M…………………….

6.Promissory notes were executed by the defendants on 29 April,2002.

7.The defendants refused and/or failed to honour their obligation but continued to plead with the claimant for more time.

8.On 31 March 2003, a debt repayment agreement was executed by the defendants in favour of the claimant for the repayment of the outstanding debt owed the claimant by the defendants which stood at $254,512.02 then.

9.The defendants only succeeded in making a part-payment of a paltry sum of $70,000.00 which was made in two instalments namely $16,000.00 on 12 June 2003 and $54,000,00 on 20 June,2003.

10.The defendants are now indebted to the claimant in the sum of$182,512.02”.

The claimant later filed a motion on notice pursuant to Order 11 rule 1 of the High Court of Lagos State (Civil Procedure) Rules praying the court to enter final judgment against the defendants/respondents on the ground that they had no defence to the claim for the amount claimed in the writ with interest as claimed.In the affidavit in support of the motion, paragraphs 6 and 7 were reproduced and the promissory notes executed by the defendants in support of the claimant and the repayment agreement in favour of the claimant were annexed as exhibits“A” and “B” respectively. A brief in support of the application for summary judgment, was filed.

The defendants contested the application for summary judgment contending in their address that the promissory notes the claimant was relying on was obtained by misrepresentation and prayed the court to set aside the said agreement. They applied for extension of time to file their statement of defence which contained a counter-claim.

…………………….N…………………….

The trial Judge considered the applications and found that the defendants had no defence to the action and consequently entered judgment in favour of the claimant. The judgment of the High Court was affirmed by the Court of Appeal; hence the further appeal to this court by the defendants/appellants.

Even though the defendants alleged there was a misrepresentation of exhibit A there were no averments in support of the allegation of misrepresentation that would have warranted transferring the case to the general cause list to enable the parties call witnesses. In other words the averments which the claimant made in paragraphs 6 and 7 of the affidavit in support to which were annexed exhibits A and B were not challenged or controverted, and so the misrepresentation which the defendants/appellants alleged was a mere sham. The purpose which the spurious allegation was meant to serve was simply to delay the payment of what had fallen due to the plaintiff/respondent. This court decided in U.T.C. (Nigeria)Ltd. v. Pamotei & Ors (1989) 2 NWLR (Pt. 103) 244 that a defendant who fails to disclose a good defence on the merits or disclose sufficient facts to entitle him defend the action generally will fail to stop the court from entering summary judgment in favour of the plaintiff. See: Ogunjumo v. Ademola (1995) 4 NWLR(Pt. 389) 254; Obaro v. Hassan (2013) 8 NWLR (Pt. 1357) 425.

It is for this reason and the more comprehensive reasons contained in the leading judgment of my learned brother, M. D. Muhammad, JSC that I too dismissed the appeal for being unmeritorious. I also award costs assessed at N300,000.00 in favour of the respondent against the appellants.

AUGIE, J.S.C.: I read in draft the lead judgment delivered by my learned brother, M. D. Muhammad, JSC, and I agree with his reasoning and conclusion,which I hereby adopt, as I have nothing useful that I can add to it. I abide by the consequential orders made in the lead judgment.

Appeal dismissed.

Representation

Olukayode Enitan, Esq. (with him, O. M. Ogundipe, Esq.) – for theAppellants

Zainab Aruwajoye (Mrs) (with her, Godwin D. Nwan, Esq. and SamuelOnah, Esq.) – for the Respondent

Before Their Lordships

OBANDE FESTUS OGBUINYA, Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU, Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU, Justice of The Court of Appeal of Nigeria

Between

AIRTEL NETWORKS LIMITED Appellant

AND

PLUS LIMITED Respondent

…………………….A…………………….

OGBUINYA, J.C.A.: (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Lagos State, holden in Ikorodu (hereinafter addressed as “the lower court”) coram judice: O. A. Williams, J., in suit No. LD/487/2012,delivered on 4th October 2016. Before the lower court, the appellant and the respondent were the defendant and the claimant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant, which had suffered nomenclature metamorphosis, is a telecommunication company that provides wide spectrum of telephony and communication services in Nigeria. The respondent is a company that deals in, inter alia, sales and distribution of telephony products, services and accessories. By dint of different agreements, the appellant appointed the respondent the distributor, dealer and trade partner for its telecommunication services through the sale of its pre-paid products. The business relationship dates back to2001. The respondent claimed that it discharged its obligations, in the agreements, efficiently and diligently which earned it awards from the appellant. In consideration of the respondent’s telephony services, it was entitled to commissions, bonuses, incentives, etcetera, from the appellant.

Later on, there arose disagreement between them over the alleged indebtedness of the respondent to the appellant. When the disagreement could not be resolved, the appellant terminated the respondent’s dealership with it. In consequence, the respondent engaged a firm of forensic accountants to determine their financial positions to each other. The report of the forensic accountants, which was served on the appellant, showed that the appellant was indebted to the respondent. Sequel to that, the respondent beseeched the lower court, via a writ of summons filed

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on 30th March, 2012,and tabled against the appellant, the following reliefs:

a. The sum of N4,888,434,208.92 (Four Billion Eight Hundred and Eighty eight four hundred and thirty four and Eight Naira Ninety Two Kobo) being the cumulative amount of commissions and other varieties of income, bonuses, benefits, etc. due to be paid or refunded by the defendant to the claimant.

b. An order directing the defendant to deliver to the claimant forthwith, an account or statement of the call logs in respect of all the active subscribers brought into the defendant’s network by the claimant and a further order directing the defendant to immediately thereupon pay to the claimant all the commissions and benefits which the claimant shall be found to be entitled to on the said call-logs.

In reaction, the appellant joined issued with the respondent and denied liability. In its pleading, it raised defences of admission of indebtedness, estoppel and statute-bar against the suit.

Following the discordant claims, the lower court had a full-scale determination of the case. In proof of the claim, the respondent fielded two witnesses, CW1 and CW2. In disproof of it, the appellant called one witness, DW1. Loads of documentary evidence were tendered before the lower court At the closure of evidence, the parties, through their counsel, addressed the lower court in the manner required by law. In a considered judgment, delivered on 4th October, 2016, found at pages 1386-1398, volume3, of the record, the lower court granted the respondent’s claim.

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The appellant was incensed with the decision. Hence, on 6thOctober, 2016, the appellant lodged a 6-ground notice of appeal, copied at pages 1399-1403, volume 3, of the record, wherein it prayed this court for:

(a)An order allowing this appeal.

(b) An order setting aside in its entirety the judgment of the Lagos State High Court coram Honourable Justice A. O. Williams (Mrs.) in suit No. LD/487/2011, dated the 4th day of October, 2016.

(c) Further or other orders the Court of Appeal may, deem fit to make in the circumstances.

Thereafter, the parties, through their counsel, and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this court. The appeal was heard on 24th June, 2020.

During its hearing, learned appellant’s counsel, A. A. Adetunji, SAN adopted the appellant’s brief of argument, filed on 1st March,2017, but deemed properly filed on 30th April, 2018, and the appellant’s reply brief filed on 13th March, 2019, as representing his arguments for the appeal. He urged the court to allow it. Similarly, learned respondent’s counsel, Dotun Oduwobi, Esq., adopted the respondent’s brief of argument, filed on 12th July, 2019 as forming his reactions against the appeal. He urged the court to dismiss it.

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In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit:

Whether, in respect of the respondent’s claims covering the period 2001-2006, the trial court rightly held that the respondent’s suit was not statute-barred.

Whether the respondent’s admission of indebtedness to the appellant was binding on the respondent and constitute estoppel against the respondent.

Whether the learned trial Judge was right in accepting and/or relying on exhibit C1 and in doing so on ground that the appellant did not challenge it.

In the respondent’s brief of argument, learned counsel crafted three issues for determination, namely

Whether the trial court was right to have held that the respondent’s suit was not statute-barred.

Whether the appellant’s plea of and purported reliance on estoppel is well-founded.

Whether the lower court’s finding that exhibit C1 was not challenged, is correct, and whether its reliance on that document is in any way impeachable.

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issues can be, conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the appellant, the undoubted owner

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of the appeal.

Arguments on the issues:

Issue one

Learned appellant’s counsel submitted that a statement of claim would be used to determine the existence of an action and when it arose. He relied on Opia v. INEC (2014) LER (SC 16/2013),(2014) 7 NWLR (Pt. 1407) 431; Elabanjo v. Dawodu (2006) 15NWLR (Pt. 1001) 76; (2006) 9 NIL 221; Kofa v. Kaita (2011)LPELR -8952 (CA); Kasandubu v. Ultimate Petroleum Ltd. (2008)7 NWLR (Pt. 1086) 274. He stated that parties are bound by their pleadings. He cited Agala v. Okusin (2010) 10 NWLR (Pt. 1202)412; Okafor v. INEC (2010) 3 NWLR (Pt. 1180) 1.He noted thatthe suit was for breach of contract and account that arose between2001-2006. He claimed that the suit was instituted six years after the cause of action accrued contrary to the statutory precedent and made statute barred. He cited section 8 of the Limitation Law of Lagos State; Odogwu v. Ilombu (2007) 8 NWLR (Pt. 1037) 488;Okereke v. Yar’adua (2008) 12 NWLR (Pt. 1100) 95; Adekoya v. FHA (2008) LPELR-105 (SC), (2008) 11 NWLR (Pt. 1099) 539;Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Ajibola v. Kolawole (1996) 1 NWLR (Pt. 476) 22; Akibu v. Azeez (2003) SC(Pt. 11) 71, (2003) 5 NWLR (Pt. 814) 643.

Learned counsel posited that in contract of payment in installment, cause of action of each payment accrued on its due date and time would begin to run from that date against the party entitled to receive it. He referred to Olaogun Enterprises Ltd. v. S.J. & M. (1992) 4 NWLR (Pt. 235) 361. He reasoned that knowledge would not be necessary once time began to run. He took

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the view that the lower court wrongly took knowledge into account thereby amending section 8 of the Limitation Law contrary to the law. He cited Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12NWLR (Pt. 781) 227; Tukur v. Govt., of Gongola State (1988) 1NWLR (Pt. 68) 39; Stork v. Frank Jones (Tripten) (1978) 1 WLR231; Awolowo v. Shagari (1979) NSCC 87; Okumagba v. Egbe(1965) 1 All NLR 621. He persisted that the lower court lacked the jurisdiction to hear the suit because it was not initiated by due process of law and upon fulfillment of conditions precedent. He cited Madukolu v. Nkedilim (1962) 2 All NLR 581, (1962) 2SCNLR 341; Miscellaneous Offences Tribunal v. Okoroafor (2001)18 NWLR (Pt. 745) 295.

For the respondent, learned counsel conceded that statement of claim would be used to determine statute-bar. He relied on Akinsete v. Kiladejo (2013) LPELR-20215 (CA); Emeka v. Chuba-Ikpeazu(2017) LPELR- 41920 (SC), (2017) 15 NWLR (Pt. 1589) 345;Woherem v. Emeruwa (2004) 13 NWLR (Pt. 890) 398. He stated when time would begin to run for a cause of action as noted in Osuma v. Joinery Crafts & Moulding Nigeria Ltd. (2013) LPELR- 21106 (CA), (2014) 6 NWLR (Pt. 1402) 17.He observed that the failure to file a reply was not harmful to the respondent’s case. He cited Akinsete v. Kiladejo (supra). He described the point on actual knowledge as a fresh issue which should be discountenanced. He said, in the alternative, that the judgment did not contain the imputation of knowledge. He postulated that the appellant had the burden to prove the statute-bar. He opined that the evidence of the appellant’s DW1 showed that the relationship was one single unseverable rolled-over account which supported the lower court’s findings. He declared the case of Olaogun Enterprises Ltd. v. S. Y.& M (supra) as inapplicable.

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On points of law, learned appellant’s counsel submitted that there were documentary evidence which should have been used to test the evidence of DW1 on a single unseverable relationship. He relied on Lion Buildings Ltd. v. Shadipe (1976) 12 SC 135; Fashanu v. Adekoya (1974) 6 SC 83; Udo v. Eshiet (1994) 8 NWLR (Pt. 363) 483. He maintained that the oral evidence would not contradict the documentary evidence which must be preferred and given literal interpretation. He cited Kwara Hotel Ltd. v. Ishola (2002) 9 NWLR(Pt. 773) 604; Durojaiye v. Continental Feeders (2001) 10 NWLR(Pt.722) 657; UBN Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385;sections 125 and 128 of the Evidence Act, 2011. Solicitor General W.N. v. Adebonojo (1971) 1 ALL NLR 178; A.-G., Rivers v. A.-G.,Akwa Ibom State (2011) 8 NWLR (PI. 1248) 31. He concluded that that evidence of DW1 which was obtained from cross-examination, was on unpleaded facts and must be discountenanced. He referred to Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130; Ita v. Ekpenyong (2001) 1 NWLR (Pt. 695) 587; Akomolafe v. Guardian Press Ltd. (2010) 1 SC (Pt.1) 58, (2010) 3 NWLR (Pt. 1181) 338.

Issue Two.

Learned appellant’s counsel contended that the lower court was wrong to hold that the respondent did not admit the debt nor was it stopped from claiming its debt from the appellant. He relied on the statement of claim and exhibit C21. He stated that the appellant relied on the representation in exhibit 21 and continued doing business with it. He observed that the respondent admitted the facts in paragraphs 6-13 of the appellant’s statement of defence when it filed no reply to it. He relied on Kezie v. Iwuoha (1998) 8NWLR (Pt. 563) 554; Adesanoye v. Adewole (2000) 9 NWLR (Pt.671) 127; Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR(Pt. 1053) 37; Nwizuk v. Eneyok (1953) 14 WACA 354; section123 of the Evidence Act, 2011. He added that the respondent did not cross-examine the appellant’s witness on those facts and were deemed admitted.

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He cited Cappa & D’ Alberto v. Akintilo (2003) 9 NWLR (Pt.824) 49; Dimlong v. Dimlong (1998) 2 NWLR (Pt. 538) 381; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773; Gaji v. Paye (2003) 12MJSC 76, (2003) 8 NWLR (Pt. 823) 583; Owners of MN Gongola Hope v. Smurfit cases Ltd. (2007) 9 MJSC 90, (2007) 15 NWLR(Pt. 1056) 189; Ijebu- Ode LGA v. Balogun (1991) 1 NWLR (Pt.166) 136; American Cyanamid Co. Ltd. v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt. 171) 15; Offorlete v. The State (2000) 12NWLR (Pt. 681) 415. He described the lower court’s finding on the point as perverse which should be set aside. He referred to A.-G., Fed v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; G-C Oil Mill Ltd. v. AS-Ahel Int. Mart Pro. Ltd. (2000) 4 NWLR (Pt. 652) 310.

It was further contended that the appellant continued to dobusiness with the respondent based on its representations, arising from the statements of accounts and performance reviews sent to it, and it was estopped from denying its indebtedness to the appellant. He stated the meaning of estoppel as noted in Egba v. Ogudo (2000)6 SC (Pt. 1) 133; Yoye v. Olubode (1974) 9 NSCC 49.He narrated the principles of estoppel. He relied on Iga v. Amakiri (1976) 11 SC12; Okonkwo v. Kpajie (1992) LPELR-2483 (SC), (1992) 2 NWLR(Pt. 226) 633; Nsirim v. Nsirim (2002) 3 NWLR (Pt. 755) 697; Udev. Nwara (1993) 2 NWLR (Pt. 278) 638; Horicon Ltd. v. Wasurum(1987) 4 NWLR (Pt. 66) 646; Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571; Ukaogbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127; Ikebala v. Ojosipe (1988) 4 NWLR (Pt. 86) 119; Sowemimo v. Awobajo(1999) LPELR-6729 (CA), (1999) 7 NWLR (Pt. 610) 335; section169 of the Evidence Act, 2011. He added that the form of admission/representation, formal or informal, was irrelevant. He referred to Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153; section 27 of the Evidence Act, 2011.

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Learned counsel submitted that the lower court raised the issue of formal or informal admission suo motu which breached the appellant’s right to fair hearing. He, cited Adegoke v. Adibi(1992) 5 NWLR (Pt. 242) 410; A.G. Leventis Plc. v. Akpu (2007)9 MJSC 134, (2007) 17 NWLR (Pt. 1063) 416; Ndigwe v. Nwude(1999) 11 NWLR (Pt. 626) 314; Usman v. Garke (1999) 1 NWLR(Pt. 587) 466; Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684;.Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177. He listed certain undisputed facts and insisted, based on them, that the respondent was estopped from challenging the statements of account showing its indebtedness. He concluded that the appellant ought not benefit from his own wrong-Nullus Commodum capare potest de injuriasuo propria. He cited Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910)241; Seriki v. Are (1999) 3 NWLR (Pt. 595) 469.

On behalf of the respondent, learned counsel argued that the alleged admission was not specific on the sum of indebtedness to found estoppel in favour of the appellant. He relied on National Bank of Nigeria v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt. 284)643. He explained that exhibit C21 did not show any specific sum of money owed to the appellant. He highlighted, the ingredients of estoppel as noted in Iga v. Amakiri (1976) 11 SC 12.He asserted that the respondent did not knowingly make any false statement and the appellant did not alter its position or suffer any damage. He explained that exhibit C21 was an honest and innocent letter of mistaken impression of indebtedness. He said exhibit C1 showed that the respondent was not indebted to the appellant while exhibitC2 showed that the appellant did not continue business with it after exhibit C21. He added that exhibit C5 terminated the business relationship. He maintained that there was no evidence that proved estoppel after pleading it. He cited Lawal v. UBN Plc (1995)LPELR-1762 (SC); (1995) 2 NWLR (Pt. 378) 407.

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Learned counsel posited that the lower court’s finding on the non-pleading of the statement of accounts and monthly performance reviews was not appealed against and binding on the appellant. He added that those statement of accounts were rejected in evidence in a ruling which the appellant did not appeal against and deemed binding on it. He pointed out that the undisputed facts, listed by the appellant, were based on those rejected documents and so impermissible.

Learned counsel further argued that the appellant raised the issue of admission in its pleading so that the issue of informal or formal admission, was not raised suo motu. He stated that the appellant did not go to equity with clean hands with respect to the estoppel. He explained that the appellant frustrated the officers of court from carrying not the order directing the Institute of Chartered Accountants of Nigeria (ICAN) to appoint. a reputable firm of chartered accountants to reconcile accounts of the parties. He concluded that the finding was not appealed against.

On points of law, learned appellant’s counsel declared the case of National Bank of Nigeria Ltd. v. Guthrie (Nig) Ltd. (supra) as inapplicable because of dissimilar of facts. He cited Iwuno v. Dieli(1990) 5 NWLR (Pt. 149) 126; Fawehinmi v. NBA (No.2) (1989)2 NWLR. (Pt. 105) 558; Adegoke Motors v. Adesanya (1989) 3NWLR (Pt. 109) 250.

Issue Three

Learned appellant’s counsel submitted that the lower court wrongly found that the appellant did not deny or attack the report of the forensic consulting firm, exhibit C1, when it did so in

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paragraphs20-29 of its statement of defence. He claimed that the respondent did not file a reply to those averments and it was deemed to have accepted them. He relied on Kezie v. Iwuoha (supra) Adesanoye v. Adewale (supra). He noted that the respondent’s entitlement in the agreements was 4% not 37% used in exhibit C1. He stated that parties and courts are bound by the terms of their contract. He cited Katto v. CBN (1999) 6 NWLR (Pt. 607) 390; Savannah Bank Plcv. Ibrahim (2000) 6 NWLR (Pt. 662) 585; Osun State Government v. Ode (2007) 29 NSCQR 763; Baker Marine Nig. Ltd. v. Chevron Nig. Ltd. (2006) 12 MJSC 174, (2006) 13 NWLR (Pt. 997) 276;Baba v. Nigerian Civil Aviation Training Centre (1991) 5 NWLR(Pt. 192) 388; UBN v. Ozigi (supra); Obikoya v. Wema Bank Ltd.(1991) 7 NWLR (Pt. 201) 119. He explained that the lower court went outside the terms of the contract when it accepted the 37% in exhibit C1. He said that the exhibit C1 was inconclusive and the lower court ought to have weighed it in favour of the appellant. He described the lower court’s finding as perverse.

Learned counsel posited, in the alternative, on non-challenge of exhibit C1, that the lower court was wrong in relying on exhibitC1. He stated that he who asserts must prove on balance of probability; He relied on sections 131 and 133 of the Evidence Act,2011; Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; Robins v. National Trust Co. Ltd. (1927) AC 515; Ezemba v. Ibeneme (2004) LPELR-1205(SC), (2004) 14 NWLR (Pt. 894) 617. He noted that exhibit C1was an after thought because it was made after the termination of the contract. He reasoned that exhibit C1 was an expert report which the lower court failed, in its duty, to evaluate, test for its credibility and weigh its cogency before relying on it: He cited A.-G., Oyo State v. Fairlakes Hotel (No.2) (1989) 5 NWLR (Pt. 121)255; Ogiale v. Shell Petroleum Dev. Co. (Nig.) Ltd. (1997) 1 NWLR(Pt. 480) 148; Uchegbu v. The State (1993) 8 NWLR (Pt. 309) 89.He insisted that the lower court did not subject the exhibit C1 to scientific analysis or

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‘criteria and it was valueless.

For the respondent, learned counsel contended that the appellant, which did not tender any document, did not adduce evidence to support its pleadings and same were abandoned. He relied on Olusanya v. Osineye (2013) LPELR-20641 (SC), (2013)12 NWLR (Pt. 1367) 148. He noted that the appellant admitted receiving exhibit C1 and that it did give the expert any records requested from it. He described the appellant’s act as admission against interest which needed no further proof. He cited Onigbinde v. S.B. Olatunji Global Ltd. (2015) LPELR-25943 (CA). He explained that the inconclusiveness of exhibit C1, as shown by CW1, was not on findings on it, but on the appellant’s refusal, make available its record to the forensic firm of accountants. He opined that the appellant had the report 21/2 years before the commencement of the suit and did nothing about it. He stated that the appellant failed to call or tender expert evidence to contradict exhibit C 1 and the address of counsel would not be substitute for such evidence. He cited Omisore v. Aregbesola (2015) LPELR-24803 (SC), (2015) 15NWLR (Pt. 1482) 205; Niger Construction v. Okugbeni (1987) 4NWLR (Pt. 67) 787; Otti v. Otti (1992) 7 NWLR (Pt. 252) 187;Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) 735; Yau v. Dikwa(2000) LPELR-10138 (CA), (2001) 8 NWLR (Pt. 714) 127. He stated the meaning of an expert as noted in Omisore v. Aregbesola(supra). He maintained that exhibit C1 was challenged and the lower court right ascribed value to it. He referred to Chabasaya v. Anwasi (2010) LPER -839 (SC), (2010) 10 NWLR (Pt. 1201) 163.

On points of law, learned appellant’s counsel argued that the appellant gave evidence in support of its pleadings in the evidence-in-chief of its DW1. He relied on order 32 of the High Court of Lagos State (Civil Procedure) Rules, 2012.

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Resolution of the issues

It is germane to place on record, upfront, that a flurry of documentary evidence were furnished before the lower court by the feuding parties. Interestingly, the case-law gives the courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004)17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee(Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10NWLR (Pt. 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325)51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354) 522; CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v.Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015)8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR(Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506)529; C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt.1533)487; Emeka v. Okorafor (2017) 11 NWLR (Pt. 1577) 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V. (Nig.) Ltd. v. NPA(2019) 1 NWLR (Pt. 1652) 163; Olomoda v. Mustapha (2019) 6NWLR (Pt. 1667) 36.I will tap from this co-ordinate jurisdiction in the appraisal of the legion of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the three of nagging issues in this appeal.

In the interest of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. This is more so as the first issue borders on jurisdiction, a numero uno in adjudication, which the law compels the court to accord prime attention in any proceedings. To this end, I will take off with the treatment of issue one. The meat of the issue

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is plain and canalised within a narrow compass. It chastises the lower court’s assumption of jurisdiction over the respondent’s claim, which mothered the appeal, when itwas statute-barred by limitation law. It is a subtle invitation to this court to consider/dissect the governing principles and ingredients of limitation law within the ambit of discharge/liquidation of indebtedness.

As a necessary prelude, where a statute prescribes a time-bar within which an action should be commenced, such legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus, a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin (No.2)(1987) 1 NWLR (Pt. 47) 1; Nasir v. C.S.C., Kano State (2010) 6NWLR (Pt. 1190) 253; Cotecna, Int’ Ltd v. Churchgate (Nig.) Ltd.(2010) 18 NWLR (Pt. 1225) 346; A-G., Adamawa State v. A-G., Fed. (2014) 14 NWLR (Pt. 1428) 515; Mulima v. Usman (2014)16 NWLR (Pt. 1432) 160; Ibrahim v. Lawal (2015) 17 NWLR (Pt.1489) 490; N.R.M.A & F.C. v. Johnson (2019) 2 NWLR (Pt. 1656)247; Daniel v. Ayala (2019) 18 NWLR (Pt. 1703) 25.

The raison d’etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions and to preserve the evidence by which a defendant will defend the action, see AremoII v. Adekanye (2004) 13 NWLR (Pt. 891) 572; Olagunju v. PHCNPlc. (2011) 10 NWLR (Pt. 1254) 113; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1563) 42; Awolola v. Gov., Ekiti State (2019) 6 NWLR (Pt. 1668) 247; Obazee v. Ekhosuehi (2019) 17 NWLR (Pt. 1701) 245; APC v. Lere (2020) 1 NWLR (Pt.1705) 254.

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The orthodox judicial formula for gauging limitation legislation is simple. A court is enjoined to examine the filed writ of summons or the originating process, either of which will showcase when the cause of action was disclosed in it, with the period stipulated in the limitation statute within which to sue. If the date of filing in the matter is beyond the period allocated by the limitation law, then it is statute-barred. Conversely, if the time limit comes within that permitted by that law, then it is not statute-barred, see Woherem v. Emeruwa (2004) 13 NWLR (Pt. 890) 398; Aremo II v. Adekanya(supra); Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76;Williams v. Williams (2008) 10 NWLR (Pt. 1095) 364; Hassan v.Aliyu (2010) 17 NWLR (Pt. 1223) 547; Nweke v. UNIZIK, Awka(2017) 18 NWLR (Pt. 1598) 454; Saki v. APC (2020) 1 NWLR (Pt.1706) 515. A successful plea of limitation law, as a shield, by an opposing party occasions two harmful effects against a plaintiff’s action. Firstly, he becomes a destitute of the right of action and judicial relief. In a word, it extinguishes his cause of action, see Egbe v. Adefarasin (No. 2) (supra); Nasir v. C.S.C., Kano State (supra);Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407;INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74; Okafor v. B.D.U., JosBranch (2017) 5 NWLR (Pt. 1559) 385. Secondly, the court ceases to be crowned with the requisite jurisdiction to entertain his action. See Owners of the MV “Arebella” v. NAIC (2008) 11NWLR (Pt. 1097) 182; Olagunju v. PHCN Plc. (supra); J.F.S. Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (Pt. 1225) 495; INEC v. Enasito (2018) 2 NWLR (Pt. 1602) 63; Toyin v. Musa (2019) 9NWLR (Pt.1676) 22.

Now, the appellant staked its onslaught on the provision of section 8 of the Limitation Law of Lagos State. Owing to its royal status in the appeal, it is imperative to pluck the provision out, whence it is domiciled in the statute book, verbatim ac literatim, as follows:

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1.The following actions shall not be brought after the expiration of six years from the date on which the cause of action occurred-

a. Actions founded on simple contract

b. Actions founded on quasi-contract

5.An action for an account shall not be brought in respect of any matter which arose more than, six years from the commence of the action.

The provision does not harbour any ambiguity. On this score, the law compels the court to accord them their ordinary grammatical meanings without any interpolation, see Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606; P.D.P. v. Okorocha (2012)15 NWLR (Pt. 1323) 205; Kawawu v. P.D.P. (2017) 3 NWLR (Pt.1553) 420; Setraco (Nig.) Ltd. v. Kpaji (2017) 5 NWLR (Pt. 1558)280; Adeokin Records v. MCSCN (2018) 15 NWLR (Pt. 1643) 550;Ecobank v. Honeywell Flour (2019) 2 NWLR (Pt. 1655) 55.Iwill pay due respect to this cannon of interpretation in order not to annoy the law.

Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the court to measure the presence or absence of its jurisdiction, see Ikine v. Edjerode (2001)18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A. T. Ltd. (2006) 10 NWLR(Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma(2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi(No.2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra);

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Lau v. PDP (supra); Azubuogu v. Oranez; (supra); Agi v. PDP (2017) 17NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6NWLR (Pt. 1615) 314; Roe Ltd: v. UNN (2018) 6 NWLR (Pt. 1616)420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons, the affidavit’ in support serves as the statement of claim, see. Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka(2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt.1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. It must be stressed, that it is only a plaintiff’s statement of claim or affidavit, not a statement of defence or a counter-affidavit, that is relevant in determining the jurisdiction of a court, see Izenkwe v. Nnadozie (1953) 14 WACA301; UBA Plc. v. BTL Ltd. (2006) 19 NWLR (Pt. 1013) 61; Ngere v. Okuruket ‘XIV’ (2017) 5 NWLR (Pt. 1559) 440.

In an abiding loyalty to the dictate of the law, I have consulted the record: the spinal cord of every appeal. My first port of visit is the abode of the respondent’s 21 paragraph statement of claim, the legally-accepted yardstick to gauge statute-bar. It colonises pages 3-8, volume 1, of the record. I have perused it with the finery of a tooth comb. Admirably, it is rebellious to equivocation. In paragraph 7 thereof, the respondent averred that between 2001 and January, 2011, it recorded a total sales turnover of about N14 billion with the appellant. In paragraphs 12, 13 and 14, the respondent pleaded three correspondence, written on 9th, 16th and 13th March,2011, exchanged between the contending parties. The three missive3 share a common mission: to resolve the respondent’s alleged indebtedness to the appellant: the casus belli in the suit. In the twilight of paragraph 14 of it, it was deposed that the appellant wrote the letter of 25th May,

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2011 to terminate the contractual relationship between the parties. It stems from these foremost averments, that the parties enjoyed viable existential contract up until May, 2011.Indubitably, the respondent became aware of the extermination of their contractual relationship receipt of the killer letter of 25th May,2011. For the purposes of “limitation statutes, a cause of action begins to run when a party becomes aware of an erosion of his right and there exists a person to be sued (the violator) to protect the encroached right, see Woherem v. Emenuwa (supra); Owie v. Ighiwi(2005) 5 NWLR (Pt. 917) 184; UBN Plc v. Umeoduagu (2004) 13NWLR (Pt. 890) 352; Oketor v. B.D.U., Jos Branch (2017) 5 NWLR(Pt. 1559) 385; Asaboro v. Pan Ocean Oil Corp. (Nig.) Ltd. (2017)7 NWLR (Pt.1563) 42; Zubair v. Kolawole (2019) 11 NWLR (Pt.1682) 66.In contract, time ensues the moment there is a breach of it by an adversary, see Muomah v. Spring Bank Plc (2009) 3 NWLR(Pt. 1129) 553.

It admits of no argument, that the respondent’s suit, which parented the appeal, is a classic exemplification of simple contract. It is, also, a quintessence of an action for account. As it parades these twin features, it falls, squarely within the province of the sacrosanct provision of section 8 of the Limitation Law of Lagos State. It was instituted on 30th March, 2012 as manifest from the dawn of the mountainous records. I have, in paying due obeisance to the injunction of the law, situated the two dates: the 25th May, 2011, when the cause of action germinated, and the 30th March,2012, the birthday of the respondent’s action. The rational behind the juxtaposition is plain. It is to ascertain if the respondent’s claim, which is in the heat of expunction/decimation, respected or flouted the provision of section 8 of the Limitation Law of Lagos State on the timetable stipulation for its institution. Nigeria is a user of the Gregorian calendar, a calendar of general application. By the Gregorian calendar computation

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from May, 2011 March,2012, is a period of about ten months. It cannot be gainsaid, that the period of ten months is far less than the six years time frame decreed by the provision of section 8 of the Limitation of Law of Lagos State. In other words, the respondent’s suit does not constitute a defilement of the limitation prescription of section 8 of that Limitation Law. The consequence is obvious. The respondent’s cause of action, which enured to it on 25th May,2011, had not become stale/soured before it was ignited on 30thMarch, 2012 as to warrant its being marooned in the murky ocean of statute bar displayed above. The foregoing dissection, with due reverence, exposes the poverty of the learned appellant’s senior counsel’s dazzling argument on the stubborn issue. It is lame and cannot fly.

In the light of this expansive legal anatomy on limitation law, the lower court’s solemn finding, at page 1393, line 13, volume3 of the gargantuan record, “….. that the claim in this suit is not statute barred”, is unassailable. I fully concur with the immaculate finding. In the result, all the diatribes, which the appellant contrived and unleashed on it, peter into insignificance. I, therefore, dishonor the learned appellant’s senior counsel’s salivating invitation to sacrifice the decision of the lower court on the undeserved shrine of limitation law for want of legal justification. In the end, I will not hesitate to resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with the treatment of issue one, I proceed to settle issue two. The meet of the issue, which owns two limbs, is plain. It castigates the lower court’s findings on admission and, estoppel; findings which went against the appellant. I will handle them seriatim.

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The first limb quarrels with the lower court’s, failure to hold that the respondent’s admission of indebtedness to it was binding on. In the first place, in the mind of the law, admission connotes a statement, oral or documentary, made by a party which suggests an inference as to any fact in issue or relevant fact, see section 20 of the Evidence Act, 2011; UBA Plc v. Jargaba (2007) 11 NWLR (Pt.1045) 247; Oguanuhu v. Chiegboka (2013) 6 NWLR (Pt. 1351) 588.

It “is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth, of certain facts which are inconsistent with his claims in an action”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288)534 at 558 per Fabiyi, JSC; UBA v. Jaraaba (2007) 31 NSCQR144, (2007) 11 NWLR (Pt. 1045) 247; N.B.C.I. v. Integrated Gas(Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(2015) 15 NWLR (Pt. 1482) 205; N.A.S. Ltd. v. UBA Plc. (2005)14 NWLR (Pt. 945) 421. It is classified, in the stratification of evidence, against the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113. It constitutes a concession against the interest of a party making it, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. Hence, in the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. (Nig.) Ltd. (2009) 7 SCNJ 358, (2009) 17 NWLR (Pt. 1170)382; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offorv. State (2012) 18 NWLR (Pt. 1333) 421; Jitte v. Okpulor (2016) 2NWLR (Pt. 1497 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503)499; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224;Mba v. Mba (2018) 15 NWLR (Pt. 1641) 177; Adeokin Records v. M.C.S.N (Ltd/GTE) (2018) 15 NWLR (Pt. 1643) 550; N.R.M.A. & FC v. Johnson (2019) 2 NWLR (Pt. 1656) 247.

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Be that as it may, an admission is binding on its maker if it is clear, unequivocal and devoid of misapprehension of facts. See Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. A court has to examine the entire pleadings of a party in order to determine if there is admission, see Okoye v. Nwankwo (2014) 15 NWLR (Pt.1429) 93.I have, taking shelter under this bounden duty saddled on the court by law, given a clinical and global examination to the respondent’s 21 paragraph statement of claim which monopolises pages 3-8 volume 1, of the record, incidentally, I am unable to locate, even with the prying eagle eye of a court, in that holistic exercise, where the respondent made a categorical admission of being indebted to the applicant. In paragraph 12 thereof, it pleaded that it acted “under the honest and innocent but mistaken and erroneous belief that it was indeed indebted to the defendant”. This to my mind, does not come within the canopy of admission in the sense that it is, totally, divorced from being clear, unequivocal and drained of misapprehension of facts. Put simply, it is not, in the least, an undiluted admission of the respondent’s indebtedness to the appellant as contemplated and ordained by law.

The appellant erected its defence of the respondent’s debt admission on exhibit C21. It was a letter written by the respondent to the appellant on 9th March, 2011. I have given an intimate reading to the 7-paragraph letter. It does not disclose the exact amount which the respondent was liable to pay to the appellant. It is rather nebulous, blank, imprecise and void of the debt sum. Its vagueness and woolliness in the debt sum specification constitutes a serious coup de grace on the appellant’s allegation of admission against the respondent. It flows, that the necessary ingredients of admission were in short supply in the exhibit C21. At the cradle of page 1396, lines 1 and 2, of the elephantine record, the lower court tersely, declared: “There is no categorical statement of what debt the claimant owes in the letter. It cannot be said to be a

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binding admission that amounts to estoppel….” In the glaring face of those apparent debilitating deficiencies in the hallmarks of admission, the lower court did not, in my view, fracture the law when it labeled the document, exhibit C21, as impotent to qualify/impregnate admission against the appellant. In the aggregate the learned appellant’s senior counsel’s dazzling submission on this point, with due respect, flies in the face of the law.

There is one other grouse, nursed by the appellant, under this first limb of issue two. It appertains to the lower court’s classification and dissection of classes of admission. The appellant excoriated it as raising issue suo motu. Indisputably, the law, seriously, frowns on a court raising an issue suo motu, on its own motion, and deciding same without input from the parties. Such an untoward judicial exercise will drag the court into the arena of conflict as well as impinge on the inviolable rights of parties to fair hearing as entrenched in section 36 of the Constitution, (as amended),see INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. Oguebego (2015)13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Bina (2016) 12NWLR (Pt. 1526) 316; Mabamijie v. Otto (2016) 13 NWLR (Pt.1529) 171; A.-G., Fed. v. A-G., Anambra State (2018) 6 NWLR (Pt.1615) 314; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534. However, it is not an inelastic rule of law. It admits of certain exceptions. The need for address by parties becomes unnecessary when:

“(a) the issue relates to the courts own jurisdiction;

(b) both parties are/were not aware or ignore a statute which may have bearing on the case ….

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(c)… on the face of the record serious questions of the fairness of the proceedings is evident,”

See Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at332, per Rhodes – vivour, JSC; Aderibigbe v. Abidoye (2000)10 NWLR (Pt. 1150) 592; Effiom v. C.R.S.I.E.C. (2010) 14NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6NWLR (Pt. 1350) 289; Kusamotu v. APC (2019) 7 NWLR (Pt.1670) 51.

It is decipherable from the record, the touchstone of the appeal, that the warring parties joined issue on the respondent’s admission of the debt. In the view of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636)357. Indeed, it is the heartbeat of the appellant’s defence to the respondent’s suit which transfigured into the appeal. Put the other way round, the parties proffered evidence and addressed the lower court on the point. In this wise, the law mandates the lower court to make finding(s) thereon, see Odunukwe v. Ofomata (2010) 18NWLR (Pt. 1225) 404; Aba v. Monday (2015) 14 NWLR (Pt. 1480)569; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38.The lower court did not, proprio vigore, raise the issue of admission. It merely, and rightly in my view, analysed the species of admission, informal and formal, as propounded and bifurcated by the apex court in Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153, (1995) 5 SCNJ 44.Thatcannot, by any guise or imagination, snowball into raising an issue suo motu. It follows, that the allegation of raising admission issue suo motu is not only uncharitable but unsustainable. The decision was not guilty of the pseudo-charge as the lower court acted in accordance with the tenet and spirit of the law. The net effect is clear. The appellant’s inviolable right to fair hearing did not suffer any erosion in the unbiased judicial hands of the lower court. Indubitably, it cannot harvest from the sanctuary of the beneficent provision of section 36 of the Constitution,

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as amended. The foregoing legal expositions, with due deference, puncture the learned appellant’s senior counsel’s seemingly elegant contention on the point of raising admission issue suo motu. It is disabled from its birth.

That takes me to the second limb of the appellant’s grouch on this knotty issue. It is hedged around estoppel. The doctrinal defence of estoppel traces its paternity to the common law principle based on equity. It has been imported and, deeply, propagated/rooted in our corpus juris. It connotes, an admission, or something which the law treats as equivalent to an admission, of an extremely high and conclusive nature-so high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it, see Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) 387,(2000) 6 SC (Pt. 1) 133 at 147; Olalekan v. Wema Bank Plc (2006)13 NWLR (Pt. 998) 617; A-G, Rivers State v. A.G, Akwa lbom State (2011) 8 NWLR (Pt. 1248) 48.There are four main classes of estoppel, videlicet; estoppel by record, estoppel by deed, estoppel by conduct and promissory estoppel, see Oyerogba v. Olaopa(1998) 12 SCNJ 115, (1998) 13 NWLR (Pt. 583) 509; Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204.

Nigeria, a legatee of the common law version of estoppel, has since codified it. It is ingrained in section 169 of the Evidence Act,2011. For the importance, I extract it out from the statute bookipsissima verba, thus:

When one person has, either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest

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shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

This provision is comprehension-friendly. It is a re-enactment of the provision of section 151 of the defunct Evidence Act, 2004and both had fallen for interpretation before the apex court in sea of ex-cathedra authorities, see A.-G., Nasarawa State v. A.-G., Plateau State (2012) 10 NWLR (Pt. 1309) 419; Ajayi v. Total (Nig)Plc (2013) 15 NWLR (Pt.1378) 423; Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt. 1412) 352; Mabamije v. Otto (2016)9 NWLR (Pt. 1529) 171; BPS Constr. & Eng. Co. Ltd. v. FCDA(2017) 10 NWLR (Pt. 1572) 1; In Re: Apeh v. PDP (2017) 11 NWLR (Pt. 1576) 252; Bulet Int’l (Nig) Ltd. v. Olaniyi (2017) 17NWLR (Pt. 1594) 260; Okpala & Sons Ltd. v. Nigerian Brew. Plc(2018) 9 NWLR (Pt. 1623) 16; Aderonpe v. Eleran (2019) 4 NWLR(Pt. 1661) 141; C & C.B. Dev. Co. Ltd. v. Min., E.H & U.D (2019)5 NWLR (Pt. 1666) 484; Mamonu v. Dikat (2019) 7 NWLR (Pt.1672) 495; MTN (Nig) Comm. Ltd. v. Corporate Comm. Inv. Ltd.(2019) 9 NWLR (Pt. 1678) 427.

The appellant’s coup de main centres on estoppel by conduct. It bears/wears another appellation-estoppel in pais, see Oyerogba v. Olaopa (supra); Chukwuma v. Ifeloye (supra), A.G., Rivers State v. A.-G, Akwa Ibom State (supra) The doctrine of estoppel by conduct, which is ususally employed as a shield in litigation, is anchored on the rule of equity and good conscience. Its goal is to ensure honesty and good faith in human transactions to the triumph of justice between the parties. It is a bar which forbids a party from blowing hot and cold, approbating and reprobating in the same transaction. It compels a person to adhere/stick strictly to the credo that a man’s words should be his bond. It is a sworn-enemy of somersault/volte-face in human agreements. In Iga v.

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Amakiri (1976) 11 SC 1 at 12-13, the apex court, per Obaseki, JSC, invented the three components of estoppel by conduct in these illuminating words.

If a man by his words or conduct willfully endeavor to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state and acts upon his belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again. If a man either in express terms or by conduct, makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts: Thirdly, if a man whatever his real meaning maybe, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.

This has been espoused and re-echoed in flood of decisions, see A.-G., Nasarrawa State v. A.-G., Plateau State (supra); BPI Group Cor. v. BPE (2012) 18 NWLR (Pt. 1332) 209; CPC v. Ombugadu(2013) 18 NWLR (Pt. 1385) 61.3; Pina v. Mai-Angwa (2018) 15NWLR (Pt. 1643) 431; CBN v. Interstella Comm. Ltd. (2018) 7NWLR (Pt. 1618) 294; Arije v. Arije (2018) 16 NWLR (Pt. 1644)67; D.M.V. (Nig.) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 163;Olayioye v. Oyelaran (2019) 4 NWLR (Pt. 1662) 351; Gana v. SDP(2019) 11 NWLR (Pt. 1684) 510; Umemedimo v. Mobil Producing(Nig.) Unltd. (2019) 12 NWLR (Pt. 1685) 1.

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Incontestably, the appellant pegged its, defence of estoppels in pais on the alleged respondent’s admission of indebtedness to it. I had at the inceptior of this issue, found and affirmed the lower court’s finding that the respondent was not guilty of the admission of indebtedness. There are no extenuating circumstances, furnished before this court, to compel/stimulate me to disturb that confirmation which I reached after due consultation with the law. The affirmation has caustic effect on the appellant’s plea of estoppel in pais. It amputates and makes it an orphan vis-a-vis the admission. In effect, it has no legal parentage to perch and command any viability and validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. v. Ekperi(2007) 3 NWLR (Pt. 1022) 493; Alsthom S.A. v. Saraki (2005) 3NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168)513. In that prostrate state, the doctrine of estoppel by conduct, being brandished by the appellant, is worthless to its case.

That is not all. The defensive doctrine of estoppel by conduct, mounted by the appellant, is not an automatic right. A court does not award it to a party, who pleads it, as a matter of routine. In Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204 at 238,Ogbuagu, JSC, evoled the ingredients of the doctrine to wit:

1.That there was a false representation or concealment of material facts.

2.That the representation must have been known to be false by the party making it or the party

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must have been negligent in not knowing its falsity.

3.That it was believed to be true by the person to whom it was made.

4.That the party making the representation must have intended that it be acted on or the person acting on it must have been justified in assuming this intent, and

5.That the party asserting estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds.

The vexed question, which begs for an answer is: did the appellant prove these ingredients? It is in the respondent’s pleading and evidence that it acted “under the honest and innocent but mistaken and erroneous belief that it was indeed indebted to the defendant. … “ This concrete piece of evidence neutralises the allegation of false representation being peddled by the appellant. An innocent/honest representation” is diametrically opposed to false representation. In a swift response to the respondent’s mistaken/erroneous belief of its indebtedness to it, the appellant promptly, peremptorily and abruptly abrogated its business relationship with the respondent. This is the clear purport of exhibit C22, wrapped at page 217 volume 1, of the record, written on 16th March 2011.The consequence of exhibit C22 is not a moot point. It constitutes a classic evidence that the appellant did not alter its position or act to its detriment on the footing of the respondent’s innocent and honest representation that it was indebted to it in about two months after the birth of exhibit C22, the appellant severed their telephony commercial relationship by dint of the exhibit C5 of 25th May, 2011. In sum, the appellant failed, woefully, to establish the doctrine of estoppel by conduct as to harness from its vineyard against the

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respondent.

My noble Lords, for the sake of completeness, the appellant branded the lower court’s finding on the issue as perverse. Since perversion is the cynosure of the point, it is important to x-ray its purports for easy appreciation. A verdict of court is perverse when: it runs counter to the pleadings and evidence before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence, a court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) 16 NWLR(Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 NWLR(Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217;Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umanah (No.1)(2016) 12 NWLR (Pt. 1526) 179; Adeokin Records v. M. C. S.N.(Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt. 1672)495; MTN (Nig.) Comm. Ltd. v. Corporate Comm, Inv. Ltd. (2019)9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt.1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt.1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.

Now, the lower court’s judgment, sought to be creamed and ostracised, is pasted at pages 1386 – 1398, volume III of the expansive record: the bedrock of the appeal. I have subjected it to a microscopic examination. I have, in total allegiance to the desire of the law, situated the judgment, sought to be decimated, with the elements of perverse decision adumbrated above. The wisdom behind the comparison is simple. It is to discover if the judgment is mired in the swamp of perversity. The judgment of the lower court, which is submissive to comprehension, is not

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antithetical to the pleadings and evidence presented before it by the feuding parties. At the same time, the lower court did not import alien/foreign matters into the judgment. It utilised the evidence the parties presented before it as catalogued above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant.

In the light of this juridical survey, done with the aid of the law, the lower court’s findings on the issue are unimpeachable. They are, totally, in tune with the law. It will smell of judicial sacrilege totinker with findings that are not hostile to the law. That is a far cry from the bounden duty of an appellate court. In the result, I am left with no choice than to resolve the issue two against the appellant and in favour of the respondent.

It remains to thrash out issue three. The focus of the issues is clear. It bemoans the lower court’s acceptance and reliance on exhibit C1. The exhibit C1 dated 7th September, 2016, is a financial report of the transactions between the parties. It is a catholic document of about 50 pages which is dotted with financial figures and spans pages 281-419, volume 2, of the wordy record. Its author, Ori Adeyemo, CW1, testified as a Chartered and Forensic Accountant. In other words, his testimony was that of an expert witness. This brings to the fore the interpretation of the provision of section 68 of the Evidence Act, 2011 (former section 57 of the repealed Evidence Act, 2004). It reads:

68(1) When the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or act, or as to identity of handwriting or finger impressions, the (opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or question as to identity of handwriting or finger impressions, are admissible.

…………………….AE…………………….

(2)Persons as specially skilled as mentioned in section of the section are called experts.

An expert is a person who is specially skilled in the field he is giving evidence. He is one who has made subject he speaks on a matter of particular study, practice or observation and posses a particular and special knowledge of the subject. He must be a person qualified to speak with some amount of authority by reason of their special training skill, mastery of familiarly with the subject matter in question see A-G, Fed. v. Abubakar (2007) 10 NWLR (Pt.1041) 1; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1462) 205;Rabiu v. Amadu (2013) 1 NWLR (Pt. 1337) 36.It can be garnered from this clear provision, that it is the court that decides whether or not a witness is an expert, in the areas catalogued in the provision, using his knowledge and skill as a template. A court is not bound to accept the evidence of an expert, see Seismograph Service Ltd. v. Onokpasa (1972) 4 SC 123; Seismograph Service Ltd. v. Ogbeni(1974) 4 SC 85; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173;Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535; Oando (Nig.) Plc v. Adijere (W/A) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388) 402; Gundiri v. Nyako (2014) 2NWLR (Pt. 1391) 211; Rabiu v. Amadu (supra); Oando (Nig) Plc v. Adijere (W/A) Ltd. (2013) 15 NWLR (Pt. 1377) 374; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; Ladoja v. Ajimobi (supra);Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179; Bille v. State (2016) 15 NWLR (Pt. 1536) 363; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.

It cannot be gainsaid that the exhibit C1, which is the pivot of the appellant’s complaint, falls within the four walls of a document in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, section 258 of the Evidence Act, 2011. Remarkably, the law grants to the courts the unbridled licence to read a document holistically so

…………………….AF…………………….

as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu (1987)3 NWLR (Pt. 61) 377, (1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 704) 609; ACB v. Apugo (2001) 5NWLR (Pt. 707) 483; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400;Bunge v. Gov. River State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012)18 NWLR (Pt. 1332) 209; Julius Berger (Nig.) Plc. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the court is enjoined by law to apply the literal rule as a canon of interpretation id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, see UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385; UBN Ltd. v. Sax(Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.SD.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these canons of interpretation of document in order not to offend the law.

One of the appellant’s chief grievances, indeed its trump card on the issue, is that the document was/is inconclusive and, ipso facto and de jure, ought not to have been relied upon by the lower court. In the eyes of the law, inconclusive, a word that now arrests the attention of the Nigerian populace especially in political firmament, denotes not leading to firm conclusion or definite result, not ending dispute, see Nruamah v. Ebuzoeme (2013) 13 NWLR(Pt. 1372) 474; A.P.C. v. Karfi (2018) 6 NWLR (Pt. 1616) 479;Ojobo v. Moro (2019) 17 NWLR (Pt. 1700) 166. I have given an indepth and universal study to the summary portion of the exhibitC1 which confronts one at the threshold of it. Admirably, it does not harbor any equivocation in its significance. Unfortunately, that part, which hosts ten leaves, is unpagenated. At the foot/bottom of the penultimate leaf, its maker, CW1, declared:

…………………….AG…………………….

Please note that this report is inconclusive because of the absence of the various covenanted agreements reached between Airtel Networks Limited and our client, missing contractual invoices (if at all) and subscribers call logs leading to our inability to compute relevant ORSC commissions and other entitlements due to the Plus Limited……

It can be gleaned from this excerpt that the inconclusiveness, warehoused in the exhibit C1, affects the respondent whose Ongoing Revenue Service Charge (ORSC) and other entitlements could still be in custody of the appellant. Put bluntly, the inconclusiveness is prejudicial to the respondent and hurtlles/friendly to the appellant that refused to furnish the author with those catalogued documents. Prior to the above extract, the owner of the report, CW1, had opined that the appellant should refund the whopping sum of N4.8 Billion to the respondent. The point I am struggling to ram home is that the inconclusiveness is relative to the unknown outstanding sum not connected to the concluded debt sum. It is not retrospective, but prospective in relation to further and in futuro debt computations between the parties. In a nutshell, I hold the humble view that the inconclusiveness of the report does not, in the least, diminish its genuineness/ authenticity vis-a-vis the sum of N4.8 Billion under disputation between the contending parties.

It is garnered from the record, the keystone of the appeal, that the statement of account, which the DW1, the appellant’s star and only witness tendered was greeted with a stiff opposition in the bowel of the lower court. The lower court upheld the objection and marked it rejected. The ruling on its rejection, which is not a subject of appeal, constitutes a serious dent on the appellant’s case. It ceased to acquire the status of an exhibit with the adjudicatory gains attendant to it. An exhibit denotes a document, record or other tangible objects formally introduced as evidence in

…………………….AH…………………….

court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128. A court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P. T.E. Ltd (2012) 18NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014)7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt.1449) 374. In the wide realm of adjectival law, a rejected document cannot be relied on by the court, see Nigerian Ports Plc. v. B.PPTE Ltd. (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013)11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi(2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR(Pt. 1596) 108. Alas, the statement of account, which would have doused the potency of exhibit C1, was a document ex facie curiae. It was castrated to the benefit of the respondent’s case.

Besides, the appellant, through counsel, was stingy in the cross examination of CW1 on the critical and decisive exhibit C1.The appellant ignored the imperativeness of cross-examination in our adversarial system of adjudication Cross-examination has been described as the “nobel art” which “constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party”, Offorlete v. State (2000) 3 NSCQR243 at 268, (2000) 12 NWLR (Pt. 681) 415 per Achike, JSC Cross-examination “if rightly employed, is potent tool for perforating falsehood”, Ayan v. State (2013) 15 NWLR (Pt. 1376) 34 at 36per Fabiyi, JSC. Thus, cross-examination occupies an Olympian position in the adjectival law. It is the template with which to assess the truth in evidence-in-chief of witnesses. The veracity of a witness under examination-in-chief is tested by the evidence elicited from him in the furnace of cross-examination. Curiously, the appellant disarmed itself of the necessary “lethal weapon”, in the form of cross-examination, which it would have harnessed, through the advocative prowess and dexterity of counsel, to counter the damaging and dismissal evidential effects of exhibit C1.

…………………….AI…………………….

Lastly, the appellant queried the exhibit C1 and christened it as an afterthought. It is in evidence, that the respondent’s only witness, DW1, conceded, in the cross-fire of cross-examination, that the appellant received the exhibit C 1, but did not react to debunk its content. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones that flow out from examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581;Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 521. Thus, that impregnable piece of evidence of acknowledgement of receipt of exhibit C1 makes mincemeat of the appellant’s allegation that the exhibit C1 was an afterthought. The appellant had it well-ahead of the institution of the respondent’s action, but decided to treat it with disdain and contempt. The admission of its acceptance acquits/discharges the document of the phantom charge of afterthought preferred against it by the appellant.

My noble Lords, a synthesis of these points, amply demonstrate that document, authored by an expert, was not challenged by the appellant during the trial of the case before the lower court. The law grants the lower court the liberty to act on unchallenged evidence, viva voce or documentary. The lower court, therefore, acted ex debito justiciae a fortiori being a documentary evidence which is permanent, incorruptible, inelastic and indelible in contradistinction to oral evidence that ooze out from the vocal cord of man and susceptible to evidential tutorage. The exhibit, clearly, reveals that the appellant was mired in debt to the respondent in the stupendous sum of N4.8 Billion. Indebtedness signifies a state of owing money, or something owed, or debt to another person, se Barbedos and Ventures Ltd. v. FBN Plc (2018) 4 NWLR (Pt. 1609) 241. In my considered view, the lower court did not transgress the law when it

…………………….AJ…………………….

relied on exhibit C 1 to found in favour of the respondent in the matter. The judicial exercise is, totally, divorced from being injudicious. I resolve the issue three against the appellant and in favour of the respondent.

On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is devoid of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower court delivered on 4th October, 2016. The parties shall bear the respective costs they expended in the prosecution and defence of the ill-fated appeal.

OGAKWU, J.C.A.: In order to ascertain whether an action is statute barred, the court looks at the date when the action was instituted and the date when the cause of action arose. Now, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action. In simple terms, a cause of action arises the moment a wrong is done to the claimant by the defendant. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20 and Adekoya v. F.H.A. (2008) 11 NWLR (Pt. 1099) 539 at 551 and 557·

The determination of whether an action is caught by the statute of limitation is a matter of calculation of raw figures and a court of law has no discretion in the matter: Adekoya v. FHA (supra) at557. It is necessary to distinguish a cause of action from a right of action. A right of action is the right to enforce presently a cause of action. A right of action is a remedial right. A statute of limitation however removes the right of action and leaves the claimant with a bare and empty cause of action which he cannot enforce. See Egbe v. Adefarasin (supra) at 20; Eboigbe

…………………….AK…………………….

v. NNPC (1994) 5 NWLR (Pt.347) 649 at 659; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 and P. N. Udoh Trading Co. Ltd v. Abere (2001) 11 NWLR (Pt. 723)114 or (2004) 24 WRN 1 and F.H.A. v. Olayemi (2017) LPELR(43376) 1 at 46-47.

The appellant contends that the respondent’s action is statute barred and caught by the provisions of section 8 of the Limitation Law, Cap L67, Laws of Lagos State, having been filed more than six years after the cause of action. From the facts averred to in the statement of claim, the respondent’s cause of action was donated by the appellant’s letter of 25th May 2011. The respondent instituted the action at the lower court on 30th March 2012. Apposing the date of accrual of the cause of action and the date when the action was filed, it is effulgent that the action was filed within one year of the accrual of the cause of action. It is consequently not caught by the limitation period.

The appellant further raised the issue that exhibit C21 tendered by the respondent constitutes an admission of the respondent’s indebtedness to it. Section 20 of the Evidence Act, 2011 defines admission as:

“An admission is a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances mentioned in this Act.”

Section 24 of the Evidence Act then enacts for proof of admission against the person making the admission. By all odds, an admission against interest is the best evidence in favour of an adversary in a trial: Onyenge v. Ebere (2004) 13 NWLR (Pt. 889)20 and Rockshell Int’l Ltd v. B.Q.

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S. Ltd (2009) 12 NWLR (Pt. 1156)640 at 649. However, in order for an admission to be accorded credence by the law, the admission must be clear, unequivocal and cannot be said to be based on any misapprehension of any fact. See Alhassan v. Ishaku (2016) LPELR (40083) 1 at 92-93,(2016) 10 NWLR (Pt. 1520) 230; Narindex Trust Ltd v. NICMB Ltd(2001) 1 SC (Pt. I) 25, (2001) 10 NWLR (Pt. 721) 321; Oguanuhu v. Chiegboka (2013) LPELR (19980) 1 at 23, (2013) 6 NWLR(Pt. 1351) 588 and IMB Plc v. Comrade Cycle Co. Ltd (1998) 11NWLR (Pt. 574) 460. Exhibit C21 is not univocal; indeed it does not state any amount as being owed. The law can therefore not accredit it as an admission as hankered after by the appellant. This being so, even though section 27 of the Evidence Act stipulates that admission may operate as estoppel, the foofaraw made by the appellant on estoppel in pais is equally unavailing, since the said exhibit C21, not being an admission, cannot ground the estoppel which the appellant pines for.

It is for the foregoing reasons and the more elaborate reasoning and conclusion adroitly marshalled in the erudite leading judgment of my learned brother, Obande Festus Ogbuinya, JCA, which I was privileged to have read in draft, that I am allegiant to the ineluctability of the appeal only being deserving of a dismissal. I therefore join in dismissing the appeal. I abide by the consequential order as to costs made in the leading judgment.

ALIYU, J.C.A. I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Obande Festus Ogbuinya, J.C.A. I am entirely in agreement with the reasoning and conclusion which, with respect, I adopt as mine in also dismissing this appeal for lacking in merit.

I affirm the judgment of the trial court. Appeal dismissed by me.

Appeal dismissed.

Representation

A. Olatunji, SAN (with him, Nas Ogunsakin, Esq.) – for the Appellant

Dotun Oduwobi, Esq. – for the Respondent

Before Their Lordships

OLABODE RHODES-VIVOUR, Justice of the Supreme Court of Nigeria

CHIMA CENTUS NWEZE, Justice of the Supreme Court of Nigeria

AMIRU SANUSI, Justice of the Supreme Court of Nigeria

EJEMBI EKO, Justice of the Supreme Court of Nigeria

UWANI MUSA ABBA AJI, Justice of the Supreme Court of Nigeria

Between

ENL CONSORTIUM LIMITED Appellant

And

DUNASULU BROTHERS NIGERIA LIMITED Respondent

…………………….A…………………….

SANUSI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Lagos division delivered on the 5th of May, 2015 which partially allowed the appeal.

Background Facts:-

The respondent hired the appellant for delivery of its goods which according to the respondent, consist of 136 bundles of hot rolled steel to its premises at Effurun Warri, Delta State. The respondent paid to the appellant the sum of N2,048,895.00 for the service. Thereafter the appellant notified the respondent through Delivery Tally Sheet that it has delivered its imported goods to its premises at Effurun. After the inspection of the goods delivered,the respondent alerted the appellant that it delivered 48 bundles of a cheaper product belonging to another company. The respondent stated further, that after several attempts through its solicitors to the appellant to remove them to its premises the appellant refused to do so till date, hence an action which resulted in the instant appeal, was instituted at the trial court. The appellant, upon being served with the originating process filed its statement of defence and a motion dated 19th November, 2013 praying for the dismissal of action. The application was heard on the 7th of May, 2013 wherein ruling was delivered on the 12th June, 2013 dismissing the appellant’s application as unnecessary. Meanwhile, the suit was first filed at the High Court of Lagos State for breach of contract but the appellant filed a notice of preliminary objection challenging the jurisdiction of the Lagos state High Court to entertain the action which it claimed was a suit relating to admiralty.

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Consequent upon the appellant’s objection, the respondent withdrew the suit and refiled it at the Federal High Court and the appellant yet again filed another application for its dismissal, that decision again gave rise to this appeal.

Before the judgment, the Court of Appeal invited the counsel to address it on issue of jurisdiction. The respondent’s counsel argued that it is erroneous to hold that the Federal High Court can entertain the suit since the contract was entered into within the premises of a Federal Port, hence it can in alternative, invoke its power under Section 15 of the Court of Appeal Act to transfer the suit to the High Court of Lagos State for determination.

On the 5th day of May, 2015, the Court of Appeal in its judgment allowed the appeal in part on procedural issues but ordered as argued in alternative by the respondent’s counsel and transferred the suit to the Lagos State High Court for accelerated hearing. It is against this decision that the appellant has now appealed to this honourable court.

In the appellant’s brief of argument which was filed on 14/7/2016, the appellant decoded four issues for the determination of this appeal which are set out below:-

1.Whether there was sufficient material evidence placed before the Court of Appeal decide that there was a simple contract of delivery in existence between the appellant and the respondent.

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2.Whether the High Court of Lagos State has jurisdiction to entertain the claim of the respondent in view of the provisions of section 1(1)(g) and 1(2) of the Admiralty Jurisdiction Act.

3.Whether from the evidence placed before the Court of Appeal the respondent’s claims in this matter are not time/statute barred; and

4.Whether it was right in the circumstances of this matter, for the Court of Appeal to award the sum of N50,000 as cost against the appellant.

On its part, the learned counsel for the respondent filed brief of argument on behalf of the respondent on 14/9/2016, settled by one Clement Onwuenwunor Esq. In the said brief of argument, the respondent adopted the four issues for determination proposed by the appellant as reproduced above and argued them serially in his brief argument. It will therefore be superfluous to set them out here again.

Summary of Submissions of Counsel

As I posited above, the appellant decoded four issues for determination hence I will utilise them in treating the instant appeal.

Issue No.1 deals with whether there was enough material evidence before the court to enable

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lower court decide whether there was a simple contract of delivery between the parties. He submitted that the judgment of the court below that the subject matter of the suit between the parties was indeed a contract of delivery is perverse. He argued that the basis upon which the appellant dealt with respondent’s cargo is stated in paragraph 3(m)of the affidavit in support of its motion filed on 19/12/2012 to the effect that he defendant dealt with plaintiff only as an independent contractor engaged by GMT Shipping Services Ltd, in its capacity as a terminal operator to assist the owners of MV “LE CHANG”perform its duty to discharge all cargo carried on board the “LECHANG”.

He submitted that the scope of the appellant’s operation as a port terminal operator, is from the vessel’s batch to the hook of the discharge crane to the appellant’s warehouse. He submitted further,that in the absence of any evidence that there was a single contract for the delivery of the respondent’s cargo by the appellant, there was an error to have held that there was a single contract of delivery between the appellant and the respondent.

Issue no. 2 deals with whether the High court of Lagos State has jurisdiction to entertain the claim in view of provision of section 1(1)(g) of the Admiralty jurisdiction Act on this issue,the appellants counsel faulted the reliance placed on the case of Texaco Overseas (Nig.) Ltd. v. Pedmar (Nig.) Unltd. (2002) 13NWLR (Pt.785) 526 by the lower court that jurisdiction cannot be conferred by agreement of counsel when even the learned counsel to the respondent also supported the

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argument of the appellant’s counsel that the matter is/was admiralty matter based on the provisions of Admiralty Jurisdiction Act.

He argued that since the respondent’s claim are for loss/nondelivery of its cargo carried by a ship (MV LE CHANG) which have not been delivered to the respondents premises after being discharged from the vessel places the claim within the admiralty jurisdiction of the Federal High Court as provided under section 1(1) and of the Admiralty Jurisdiction Act. He urged the court to resolve this issue in favour of the appellant

The third issue deals with whether the action is statute barred.He referred to Clause 22(2) of the reverse side of the Bill of lading, the term and conditions of Bill of lading. He submitted that as an independent contractor covered by the provisions of Clause 22(2),the respondent ought to have brought this suit against the appellant within one year from 16/11/2007 the date of the delivery of Tally Sheet being the date on which the respondent cargo ought to have been delivered by the appellant to its premises. He argued further,that the claims of the respondent are also statute barred under section 18(1) of the Admiralty Jurisdiction Act, 1991. He urged the court to also resolve this issue in favour of the appellant.

Issue No.4 deals with whether it was right for the lower court to award N50,000 (Fifty thousand naira) only as costs. On this issue the appellant’s counsel referred to the case of Agidigbi v. Agidigbi(1996) 6 NWLR (Pt.454) page 300, where it was held that award of cost against the appellant who partially succeeded in the appeal was erroneous DUS and liable to be set aside.

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He then urged the court to resolve this issue in favour of the appellant and allow the appeal.

As I stated above, the learned counsel to the respondent did not formulate any issue but adopted and replied the appellant on all the issues it formulated.

On issue no. 1, the respondent’s counsel argued that the findings of the lower court that what existed between the parties is a simple contract amounts to a concurrent findings of facts. He submitted that this court is hesitant in ordinarily interfering with the concurrent findings of facts unless an appellant proves perversely which the appellant has failed to show. On whether the action is statute barred, he submitted that in deciding whether a plaintiff has locus standi or that a suit is statute barred, it is only the pleading filed by the plaintiff that the court looks at and not the process of the defendant. He cited the case of Adesokan v. Adegorolu (1997) 3NWLR (Pt.493) 261 at 27.

He submitted further, that when an objection is raised to the complaint of an action on the ground of locus standi or statute of limitation, the party raising the objection is deemed to have accepted the facts stated therein. He referred to the case of Woheren v. Emereuwa (2004)13 NWLR (Pt.890) at 398.

…………………….G…………………….

On issue no.3, he argued that the limitation period of 3 years provided in section 18(1)(b) of the Admiralty Jurisdiction Act,2004 does not apply to the circumstances of the respondent’s action whose cause of action within the meaning of maritime claims in section of the Act is neither a maritime claim nor a claim on maritime lien/charge but on a simple contract of delivery for which the appellant was paid fees. He submitted that the applicable limitation law in the circumstances of this case is the Limitation Law of Lagos State, Cap. L67, 2003 which provides in section 8(1)(a), thereof, that an action founded in simple contract can only become statute barred after 6 years from the case of action.

He submitted that even though it has challenged the competence of this issue, cost follows event and awarded discretion of the court.He cited the case of Union Bank of Nig v. Benjamin Nwaokolo(1995) 6 NWLR (Pt.400) 127. He urged the court to dismiss this appeal with cost.

Preliminary Objection

It is worthy of note, that the respondent’s learned counsel raised preliminary objection in which he inter alia, argued that issues nos. 1 & 2 in the appellant’s brief of argument which were distilled from ground 1 of the notice of appeal. He submitted that this court has restated in a numbers of cases that it is not appropriate to formulate more than one issue from a single ground of appeal.He cited several cases including the case of Alh. Sule Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt.188) 664.

…………………….H…………………….

On the second leg of objection, he argued that ground 3 of the notice of appeal and issue no.4 distilled therefrom are incompetent due to appellant’s failure to obtain leave to raise them and therefore they are liable to be struck out.

Reply of the Appellant Reply to Preliminary Objection

In his response to the preliminary objection, firstly on failure to obtain leave on the grounds and issue No.4 he raised therefrom,he submitted that the provision of section 24(2)(c) of the 1999 Constitution does not apply in respect of appeals against the award of costs. He cited the case of Joseph Ayanboye & 2 Ors v. Muritala Oladipo Balogun (1990) 5 NWLR (Pt. 151) page 392.

On the point made on raising more than one issues from a single ground of appeal, he argued that issues nos. 1 and 2 being related to each other can be treated as one issue.

Reply to the Issues

On whether the appellant is deemed to have admitted facts stated in respondent’s brief because of the preliminary objection has been raised, he argued that the appellant’s objection to the respondent suit on the ground of locus standi having been withdrawn was not decided by the two

…………………….I…………………….

lower courts. He therefore submitted that all arguments or references to the issue of locus standi and the authorities cited and relied on by the respondent in relation to that issue be discountenanced. He referred to the proceeding of 7th May,2013, where it was withdrawn. On what to look at before a court can determine whether or not an action is statute barred, he argued that since there are dispute as to facts of this case from the pleading of the parties and the affidavit in support and against the appellant’s motion, the court below ought have affirmed the decision of the trial court since there must be exist facts which must be established by evidence before the court can determine whether the respondent’s claim is statute barred or not.

On whether the Admiralty Jurisdiction Act can apply, he argued that the condition precedent for the applicability of the provisions of section 1(1)(g), of the Act is that it applies to loss of goods space from a ship and their delivery at the consignee’s premises either during storage and transportation but before delivery as in this instant case.

On issue no. 3, he argued that the provisions of section 18(2) of Admiralty Jurisdiction Act and section 8(1)(a), 4 of the Limitation Law of Lagos State are not applicable as it has been established that the appellant did not enter into any simple contract of delivery with the respondent and that the respondent’s claim is a maritime claim.

Issue on issue no. 4, he submitted that in this case cost did not follow events as established by the appellant.

…………………….J…………………….

Preliminary Objection

As has been the practice of this court, where preliminary objection is raised by a respondent challenging the competence of an appeal, it is incumbent on the court to first of all deal with the preliminary objection before embarking on the determination of the appeal. In this instant appeal, the respondent’s learned counsel filed a notice of preliminary objection on 20/9/2016 and had also argued the preliminary objection in his brief of argument.

The respondent’s preliminary objection is predicated on the following grounds:-

1.That ground no. 3 of the notice of appeal is a challenge on award of cost by the lower court and no prior leave of the court was sought and obtained.

2.Issue no. 2 was lifted from ground no. 1 of the notice of appeal and the appellant had earlier distilled issue no. 2 from ground 1 hence, issue 2 amounts to proliferation of issue and is therefore incompetent.

3.That issue no.4 was distilled from ground no. 3 upon which prior leave was not sought and obtained hence it has become incompetent for want of such leave.

In a nutshell, the respondent by his preliminary objection, is urging this court to strike out ground 3 of the notice of appeal,issues nos. 2 and 4 raised by the appellant in his brief of argument while he is also challenging the competence of issues nos. 1 and 4 for being raised,

…………………….K…………………….

because grounds 3 and 4 require prior leave to besought obtained before raising them and no such leave was sought and obtained.

Arguing the preliminary objection in his brief of argument, the learned counsel for the respondent commenced his submission by challenging the competence of ground no. 3 in the appellant’s notice of appeal from which issue no. 4 was distilled. Learned counsel submitted that ground 3 is incompetent and he also argued that issue no.4 which had been distilled from the incompetent ground no. 3 is also liable to be struck out for want of incompetence of the ground it was raised from.

The learned counsel for the respondent/objectioner stated that ground 3 which is challenging the issue of award of costs and argued that by virtue of section 241(2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any appeal that stems out from exercise of discretion of the court is only valid if prior leave of the appropriate court is sought and obtained before such ground was raised. It therefore becomes incompetent. The learned counsel had on this submission, relied on the case of UBA v. GMBH (1989)3 NWLR (Pt.110) 374 at 399.

Responding to the above submission of learned respondent’s counsel, the learned appellant’s counsel submitted that the respondent’s counsel’s submission on this leg of the preliminary objection, is misconceived because Section 241(2)(c) of the 1999 Constitution does not apply

…………………….L…………………….

to the issue at hand which solely relates to an appeal against the award of costs by the Court of Appeal on appeal made to the Supreme Court when there are other grounds of appeal contained in the notice of appeal. He cited and relied on the case of Ayanboye & 2 Ors v. Murtala Oladipo Balogun (1990) 5 NWLR (Pt.151)392 where this court interpreted section 220(2)of the 1999 Constitution. He also referred to the case of African Continental Bank Ltd & Anor v. Ifeanyi Ajugwo (2012) 6 NWLR(c)(Pt.1295) 97 at 133 paras. F-G.

It is abundantly clear and as shown in the record of appeal, that the learned counsel for the appellant made an issue on the award of N50,000 cost awarded by the lower court on appeal in his notice of appeal as reproduced at page 257 of the printed record.

To my mind, the disparity on the nature of the appeal or from which court it emanates is misconceived. The crux of the issue,is that the appellant raised the issue of costs awarded against him by the lower court and is thus appealing to this court against that award of costs. Section 221(2)(c) of the Constitution which is inpari materia with Section 220(2)(c) of the 1979 Constitution is applicable to the present or instant situation. The wording of the former provisions is apposite. The said Section 221(2)(c) of the 1999 Constitution reads thus:-

…………………….M…………………….

“Nothing in this section shall confer any right in appeal-

(c)without leave of the Federal High Court or a High Court or a Court of Appeal from a decision of Federal High Court or High Court made with the consent of the parties as to costs only.”

It needs to be stressed here, that award of cost by courts canbe classified into two ways namely costs awarded accordingto judicial principles and costs awarded in the exercise of adiscretion on a particular facts. With regard to i.e. costs awardedaccording to settled judicial principles of right.

However, there is no appeal as of right on costs awarded in exercise of discretion on particular facts. As regards the latter category, leave is to be sought and obtained before same is raised.In this instant case, the nature of the award of costs falls within the second category which requires prior leave to be sought and obtain and such was apparently not so sought and obtained in this instant case. Ground 3 is therefore incompetent and likewise issue no. 4 which was raised from the said incompetent ground of appeal i.e. ground 3, and which as I stated supra, is incompetent hence,issue no. 4 which was lifted from an incompetent ground of appeal must be and is hereby struck out. This first leg of the preliminary objection therefore succeeds and is hereby sustained.

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The second leg of the objection relates to proliferation of issues for determination. The learned respondent’s counsel submitted that issues nos. 1 and 2 were both distilled from ground No. one of the notice of appeal He argued that having been distilled from one or single ground of appeal, both issues for determination have therefore become incompetent as more than one issue cannot be distilled from a single ground of appeal. He stated that it is allowable to formulate an issue from more than one grounds of appeal but it is not permissible to raise more than one issue from one ground of appeal as done by the appellant in this instant appeal. He cited and relied on the cases of Alhaji Sule Agbetoba v. Lagos State Executive Counsel (1991) 4 NWLR (Pt.188) 664; Aja v. Okoro(1991) 7 NWLR (Pt.203) 260; Edem v. Canon Balls Ltd. (1998) 6NWLR (Pt.553) 298 and Akpabuyo LG v. Duke (2001) 7 NWLR(Pt.713) 557.

It is glaring from the appellant’s brief of argument as rightly pointed out by the respondent’s counsel, that issues 1 and 2 were distilled from Ground one of the notice of appeal. The learned counsel for the appellant conceded to such fact in his reply brief.

The law has set a well established principle, that the practice applicable in appellate courts is that an issue can be distilled or formulated from more than one grounds of appeal but more than one issue cannot be raised or formulated from one or a single ground of appeal, as to do so, would amount to proliferation of issues which is abhorred and condemned by the appellate

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courts.In otherwords, one or single ground of appeal cannot be used to formulate more than one issue as it would amount to proliferation which is condemned and depricated by appellate courts as done by the appellant in this instant appeal. See Nwaigwe v. Okere (2008) 9MISC 86; (2008) 13 NWLR (Pt. 1105) 445; Omega Bank Nig Plcv. OBC Ltd (2005) 1 SC (Pt.1)49; (2005) 8 NWLR (Pt. 928) 547;Nigerian Navy v. Garrick (2006) All FWLR (Pt.315) 45; (2006) 4NWLR (Pt. 969) 69; Ejura v. Idris (2006)All FWLR (Pt.318) 646;(2006) 4 NWLR (Pt.971) 538. Therefore, for being proliferated, the two issues, namely issues 1 and 2, are hereby accordingly struck out. Thus, the second leg of the preliminary objection also succeeds and is accordingly upheld or sustained.

Now having upheld the preliminary objection on the two legs of the objection leading me to strike out issues nos. 1, 2 and also issue 4 for another reason, the only surviving issue is issue no. 3 which I shall consider presently.

This third issue poses a question whether the respondent’s claim instituted at the trial court was statute-barred. The said issue was lifted from the second ground in the notice of appeal.The learned appellant’s counsel’s stance is that as an independent contractor who, as shown in the transaction as per the contract agreement, is covered by the provisions of Clause

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22(2) and that he therefore ought to have instituted his action/suit at the trial court within one year. That is to say, one year from 16th November, 2007,being the date on the Delivery Tally Sheet which was the date on which the respondent’s cargo ought to have been delivered by the appellant at his port terminal to the respondent on behalf of the carrier of the Cargo. He argued that the respondent’s claim having been filed on 31st of July, 2012 i.e. more than one year from the date the cause of action arose, is therefore time-barred. He cited the case of Kaycee (Nig.) Ltd. v. Prompt Shipping Corporation & NPA No. 2 Nigeria Shipping Cases Vo1.2 at page 431 Ratio 1; (1986)1 NWLR (Pt. 15) 180. It was further submitted on behalf of the appellant that the transaction is a maritime affair and therefore it is covered or governed by the Admiralty Jurisdiction Act of 1991.He finally submitted that the respondent’s action should not have been filed outside the period of three years as provided by Section 18(1)(b) of the Admiralty Jurisdiction Act 1991 and hence since the action was filed by respondent outside the three years after the cause of action arose, such claims become statute-barred.

On his part, the respondent, in his response he argued that in view of the circumstances of the case at hand and contrary to the appellant’s counsel’s submission supra, the subject matter of the case is not covered by Admiralty Jurisdiction Act of 2004 and is therefore not statute-barred. He further argued that the limitation period of 3 years provided by section 18(1)(b) of the Act is not applicable to the situation in this instant case. Further to this submission, the learned respondent’s counsel argued that the applicable law in the

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circumstance of this case is the Limitation Law of Lagos State, Cap. L67 of 2003 which by its section 8(1)(a)fixed six years from the date the cause of action arose, as the(4)period within which an action on simple contract can be filed.

Learned counsel insisted that the subject matter of the suit is not a maritime issue covered by Admiralty Jurisdiction Act,2004 or 1991, but rather, it is a simple contract which is within the jurisdiction of Lagos State Limitation Law which pegs six years as the period within which an action can be instituted and that the Federal High Court (the trial court) lacks jurisdiction to determining this case ab initio.

Now looking closely at the transactions entered into by the parties, it is apposite to state that it is simply one of delivery of goods to a particular point of delivery after the goods were discharged.It also did not involve any claim for loss of delivery or damage of goods during the carriage, but it is simply in respect of wrong delivery. To my mind therefore, it will not be correct to invoke admiralty jurisdiction once the goods have been discharged into the harbour as in this instant case which have been left to be collected by the agent or consignee. It is worthy of note, that a fresh contract agreement for the delivery of the goods was entering into by the parties. The contract is therefore centered basically on the receipt which governed or confirmed the delivery of the goods. The Bill of Lading is therefore not relevant in determining what the parties agreed upon. In that regard, the subject matter of the claim is one of breach of contract for the failure by the appellant to deliver the 124 bundles of rolled steel angles as clearly indicated on the parking list.

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I am therefore inclined to agree with the lower court that the matter involved in the claim is that it is a simple contract and not an admiralty matter. The Federal High Court of (the trial court) lacks jurisdiction on simple contract. Also the limitation law applicable in this suit is Limitation Law of Lagos State which by its section 8(1), the respondent’s action could be filed at the Lagos High Court within six years and not three years under Admiralty Jurisdiction Act, 2004 as argued by the appellant. The action was therefore not statute-barred when it was filed in 31st July, 2012. This only existing issue, is therefore hereby resolved in favour of the respondent and against the appellant.

Thus, I have sustained the preliminary objection on the 1st, 2nd and 4th grounds leading to the striking out of issues No.1, 2 and 4 and struck them out. With regard to the 3inl issue, it has been duly considered on the merit and resolved against the appellant herein.In the result, I adjudge this appeal to be devoid of any merit and it is accordingly dismissed by me. The judgment of the lower court is hereby affirmed.

Appeal dismissed.

RHODES-VIVOUR, J.S.C.: I have read in draft the leading judgment by my learned brother Sanusi, JSC. I entirely agree with his lordships reasoning and conclusions that there is no merit in this appeal.

It is also dismissed by me.

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NWEZE, J.S.C.: I had the advantage of reading, before now, the draft of the leading judgment which my Lord, Sanusi, JSC, just delivered. I agree with His Lordship that this appeal is devoid of merit and deserves to be dismissed.

Appeal dismissed.

EKO, J.S.C.: The summary of the facts of this case is: The respondent, an importer of steel materials, had imported 136 bundles of hot rolled steel angles, The said 136 bundles of hot steel angles had been discharged at Apapa Port. It needed to transport them to Effurum, Warri in Delta State. The appellant was contracted to transport them from Apapa to the destination in Delta State, The goods were then left for the appellant to transport and deliver the mat the designated point in Delta State.

The appellant instead delivered 48 bundles of 25 x 25mm angle irons, a cheaper product and not the goods the respondent contracted the appellant to deliver from Apapa Port to Effurum,Warri.

It is on these facts of the cause of action that the Court of Appeal (the lower court) found correctly, in my view, that the cause of action was a breach of a simple contract of delivery of goods,and that the said cause of action did not in any way evoke any admiralty question – within the exclusive jurisdiction of the Federal High Court, and that the cause of action fell within the general jurisdiction of the High Court of Lagos State. That was the basis for the

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transfer of the suit from the Federal High Court to the High Court of Lagos State. No ground of appeal challenged these crucial findings of fact. The said adverse findings are therefore taken as accepted and/or acceptable to the appellant. The finding of fact that the respondent’s cause of action and claim arose out of a simple contract of delivery of goods consigned to the appellant and which the appellant wrongfully delivered, not only in terms of wrong quantity but also the wrong quality thereof, cannot be faulted.

The three grounds of appeal from which the appellant formulated 4 issues for the determination of this appeal do not, in my view, appear to be competent. Grounds 1 and 2 challenge the evaluation of the evidential materials. They require leave of court first sought and granted: Section 233(2) & of the Constitution.

Ground 3, which challenges the exercise of lower court’s discretion in the award of N50,000.00 as costs, is one of mixed law and facts, It also requires leave first and had before filing in accordance with section 233(2) & of the Constitution as amended.

The three grounds of appeal are incompetent. There being no valid ground of appeal sustaining it, this appeal is incompetent inits entirety. Even on the merits, there is no substance in the appeal.The maintenance of this appeal is clearly an abuse of the Court’s process.

I endorse the judgment (including the orders made therein) just delivered by my learned brother, Amiru Sanusi, JSC.

Appeal dismissed.

Representation

Ame Ogie, Esq – for the Appellant

Clement Onwuenwunor, Esq (with him, Ugo Ewelaku, Esqand Obum D. Ezeh, Esq) – for the Respondent

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Counsel relied on Madukolu & Ors V.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OMOTOSHO (1961) ALL NLR 304.

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

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

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

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

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

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

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

Judgment

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. ​The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.

The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.

The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.

The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. ​ The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit. P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal: a.

Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection. b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court. c.

Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence. d.

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent. Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal: 1).

Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal) 2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal) 3).

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit: “Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.” The 3rd respondent did not file a brief of argument. Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise.

Ground 1, shorn of its particulars, reads: a) ERROR IN LAW The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process.

The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…” Ground 2 without its particulars states: “The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.” ​ While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law.

The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181.

The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely: 1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant? 2. Was the lower Court right in not entering judgment in favour of the appellant? ISSUE 1 – Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given.

He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court. Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause.

He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court. Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step.

He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant.

This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties. 1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties.

This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration.

It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction. ​ It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law.

He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished.

He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent. ​ Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal.

Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v.

Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief. ​ It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge.

At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point. All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision.

See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision. Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration.

I shall take the liberty of setting out the relevant clauses of the written agreement between the parties: Article 7 of the articles of agreement states: “If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.” Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads: “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …” Clause 35 (1) provides: “Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.” Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely;

”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so.

This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.” Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis) There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.

Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.

See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.

Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.

Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71).

At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, as in Exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.

Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147.

Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.

Section 5 (1) of the Arbitration and Conciliation Act provides that: “If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any steps in the proceedings, apply to the Court to stay proceedings.”​

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v.

Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that: “…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93. The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows: 1. A statement of defence. See pages 175-178 of the record. 2.

A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record. 3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record. The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration.

His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…” In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection.

This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are: 1. Statement of defence. See pages 186-188 of the record. 2. List of witness – page189 of the record. 3. Written deposition of the witness – pages 190-193 of the record. 4. Written address – pages 193-199 of the record. 5. Notice of intention to defend – page 200 of the record. 6.

Affidavit disclosing a defence on the merit – pages 201-203 of the record 7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record. It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent.

A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words: “I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA.

From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.” I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration. In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 – Was the lower Court right in not entering judgment in favour of the appellant? ​ Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence.

He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules.

He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal. 1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable.

He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel. ​ Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present: 1. The lower Court must have the power to adjudicate in the matter. 2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal. 3.

All necessary materials must be available to the Court for consideration. 4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented. 5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447.

For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit: 1. Motion for summary judgment 2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.

Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other. Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents. It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions. I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein. ABIMBOLA OSARUGUE OBASEKI –

ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same. I abide by all consequential order (s) in the lead judgment.

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Counsel relied on Madukolu & Ors V.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OMOTOSHO (1961) ALL NLR 304.

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

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

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

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

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

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

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

Judgment

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the High Court of Delta State sitting at Effurun (the lower Court) delivered on 1/6/2017 in Suit No. EHC/161/2017 by Gbemre, J. In the ruling, the lower Court upheld the preliminary objections filed by the 1st and 2nd respondents against the suit filed by the appellant on the basis that the dispute between the parties ought to be submitted to arbitration as stipulated in the agreement governing their relationship. The lower Court therefore struck out the suit.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal filed on 30/6/2017, which notice was amended by the leave of this Court granted on 8/2/2021. ​The facts of the case that led to this appeal as are relevant to the issues to be discussed in this judgment are that the appellant was engaged by the 1st respondent to construct a proposed College of Science for it. The contract was governed by Articles of agreement and conditions of service.

The appellant stated that it completed the job and the 2nd respondent, the architect, engineer and planner engaged by the 1st respondent for the job, submitted the architect’s final certificate to the (1st) respondent in favour of the appellant. The said certificate certified the sum of N51,572,556.39 as being due to the appellant. Upon default of payment, the appellant wrote a demand notice to the (1st) respondent. When payment was not made, the appellant filed a writ of summons accompanied by a statement of claim in which it claimed monetary reliefs against the respondents.

The appellant also applied for summary judgment against the respondents. In response, the 1st respondent entered a conditional appearance and filed a notice of preliminary objection praying the lower Court to dismiss or strike out the suit on the grounds that the suit was incompetent and that the lower Court lacked the jurisdiction to entertain the same.

The 1st respondent subsequently filed a notice of intention to defend, an affidavit disclosing a defence on the merit, a statement of defence and a motion for extension of time within which to file the said processes. ​ The 2nd respondent on his part filed a statement of defence, witness deposition and a notice of preliminary objection to the suit, among other processes. The processes were filed on the same date.

The lower Court received argument in respect of the preliminary objections and ruled that by clause 7 of the agreement between the parties, which is an arbitration clause, the appellant was bound to submit the dispute to arbitration before approaching the Court. It therefore struck out the suit. P. N. Agazie, Esq., of counsel for the appellant formulated the following issues in his amended brief of argument for the determination of the appeal: a.

Whether the learned trial judge was right when he considered and analysed only the 1st and 2nd respondents’ notice of preliminary objection but failed to consider the appellant’s replies on points of law to the 1st and 2nd respondent’s notices of preliminary objection. b. Whether, considering the peculiar circumstances of the case of the parties at the lower Court, the learned trial judge was right when he held that failure on the part of the appellant to first resort to arbitration ousted the jurisdiction of the lower Court. c.

Whether, the learned trial judge was right when he considered as proper the notices of preliminary objection filed by the 1st and 2nd respondents even though the 1st and 2nd respondents have taken steps in the proceedings at the lower Court by filing their statement of defence. d.

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in the obvious absence of any documentary evidence filed by the respondents to show or establish a defence on the merit, having regards to the entire circumstances of the appellant’s contractual relationship with the 1st respondent. Chidi Chikogu, Esq., for the 1st respondent presented the following issues for the determination of the appeal: 1).

Whether under the contract, there was a period provided for parties in the contract to refer any matter to arbitration. (Grounds 1 and 2 of amended notice of appeal) 2). Whether in consideration of the provisions of Article 7 of the articles of agreement and the arbitration clause in Exhibit B the lower Court was right howsoever, in declining jurisdiction to entertain the appellant’s suit and referring same to arbitration. (Ground 3 of amended notice of appeal) 3).

Whether the learned trial judge acted in the interest of justice when he struck out the appellant’s case, instead of entering judgment in favour of the appellant in view of a preliminary objection and defence on the merit. (Ground 4 of amended notice of appeal).

Agebe Odeh, Esq., for the 2nd respondent formulated a single issue for the determination of the appeal, to wit: “Whether the trial judge was right when he considered and analysed the 1st ground of the 2nd respondent preliminary objection without considering and making a pronouncement on the 2nd ground.” The 3rd respondent did not file a brief of argument. Issue 1 formulated by 1st respondent’s counsel does not arise from grounds 1 and 2 of the grounds of appeal from which the issue is said to arise.

Ground 1, shorn of its particulars, reads: a) ERROR IN LAW The learned trial judge erred in law when he held thus; “In this case no reasons have been given, and therefore the claimant cannot short circuit (sic) the process.

The claimant is therefore under an obligation to explore and exploit Article 7 and 35 before approaching the Court…” Ground 2 without its particulars states: “The learned trial judge erred in law when he considered only the 1st and 2nd respondents’ notice of preliminary objections but, nevertheless, failed to consider the appellant’s reply on points of law to the 1st and 2nd respondents’ notices of preliminary objection.” ​ While ground 1 complains of the failure of the learned trial judge to consider the reasons stated by the appellant for not submitting the dispute to arbitration, ground 2 complains about the failure of the learned trial judge to consider appellant’s reply on points of law.

The issue of the provision of a period of time for reference to arbitration does not directly arise from the two grounds or any other ground of appeal. The fact that some of the particulars of grounds 1 and 2 make references to the alleged limitation of time for submission of dispute to arbitration is not a basis for raising an issue therefrom. This is because an issue can only be raised from the complaint in a ground and not the particulars of a ground of appeal. See Stirling Civil Engineering Ltd v. Yahaya (2005) 127 LRCN 1174, 1196 or (2005) 11 NWLR (Pt. 935) 181.

The 1st respondent did not file a cross-appeal from which the issue is drawn and so the issue is incompetent and I strike out the same along with the argument in support thereof. See Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. Again, the lone issue of the 2nd respondent does not arise from any of the grounds of appeal filed by the appellant. Having not filed a cross-appeal or a respondent’s notice, the issue is incompetent and I accordingly strike it out. The result is that his brief of argument has no issue to sustain it and I therefore strike out the same.

Having read the grounds of appeal, it is my view that two issues will suffice for the determination of the appeal, namely: 1. Was the lower Court right in declining jurisdiction and striking out the case of the appellant? 2. Was the lower Court right in not entering judgment in favour of the appellant? ISSUE 1 – Was the lower Court right in declining jurisdiction and striking out the case of the appellant?

Appellant’s counsel contended that the lower Court erred when it failed to analyse and consider any of the issues raised by the appellant in its reply on points of law to the preliminary objections of the 1st and 2nd respondents. He referred to the ruling of the lower Court particularly where the learned judge of the lower Court observed that the appellant had provided no reason for not first resorting to arbitration. He referred to appellant’s reply brief where the reason for not resorting to arbitration was given.

He submitted that a Court is duty-bound to consider the issues raised by the parties before it and that failure to do so affects the ruling of the Court. Counsel argued that arbitration clause is of two classes and that the Supreme Court had considered a lone instance where an arbitration clause can oust the jurisdiction of a Court. He referred to the case of Obembe v. Wemabod Estates Ltd (1977) NSCC Vol. 11. He submitted that the general rule is that an arbitration clause does not oust the jurisdiction of a Court unless it is clearly within the Scott v. Avery clause.

He further submitted that the arbitration clause in this instance does not oust the jurisdiction of the lower Court. Still arguing, counsel posited that the lower Court was wrong in assuming that the proper process for the 1st and 2nd respondents to file was a preliminary objection and not a (motion for) stay of proceedings. He referred to Section 5 (1) and (2) of the Arbitration and Conciliation Act, 2004 and submitted that what the law demands is the filing of an application to stay proceedings after entry of appearance and without the taking of any other step.

He noted that the 1st and 2nd respondents rather filed preliminary objections and statements of defence. He pointed out that 2nd respondent acknowledged that it had taken steps in the matter and therefore ought not to have asked for the striking out of the matter on the ground that the reference to arbitration had not been made. He added that the admission amounted to a withdrawal of the first ground of objection which he said ceased to constitute an issue between the 2nd respondent and the appellant.

This he contended meant that since the learned judge of the lower Court had stated that the 2nd respondent’s objection would dispose of the 1st respondent’s objection, the ruling cannot stand as the issue of submission to arbitration was no longer being contested by the parties. 1st respondent’s counsel argued that proceedings can be terminated at the instance of the respondent on the basis of a clause in the contract entered into by the parties.

This, according to him, is because parties are bound by the terms of an agreement freely entered into by them and the Court is simply to give effect to the agreement freely entered into by parties. He posited that the phrase used in the arbitration clause is “shall” which is mandatory and so the lower Court was right in holding that the appellant was under an obligation to explore arbitration.

It was his further submission that whenever there is an agreement between parties that their dispute must be referred to arbitration, arbitration becomes a condition precedent to the exercise of jurisdiction. ​ It was his position that apart from filing an application for stay of proceedings, a defendant may also apply for the suit to be struck out where the Court is robbed of jurisdiction. He emphasized that such an application is known to law.

He went on to submit that taking steps to file a statement of defence before filing a preliminary objection at the lower Court was the proper thing for the (1st) respondent to do since demurrer has been abolished.

He finally submitted that if the 2nd respondent abandoned the first arm of his objection, it does not mean that the said ground ceased to constitute an issue between the appellant and the 1st respondent. ​ Let me quickly say that the reply brief filed by the appellant is not worthy of the tag “reply brief.” It begins by identifying two issues said to flow from the respondents’ brief of argument. Issues for the determination of an appeal do not arise from a respondent’s brief of argument; rather they arise from grounds of appeal.

Besides, there is no room in the rules of this Court for formulation of issues for determination in a reply brief.

Again, the issues formulated in the reply brief by appellant’s counsel are a re-statement of issues A and D raised in the appellant’s amended brief of argument. In short, the reply brief is but a re-argument of the contention in the appellant’s brief of argument. A reply brief is not meant to afford the appellant another bite at the cherry. It is improper to use a reply brief to extend the scope of argument in the appellant’s brief or to seek to prettify the argument in the appellant’s brief of argument. See Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 518 and Mainstreet Bank Capital Ltd v.

Nigeria Re-Insurance Corporation Plc (2018) 14 NWLR (Pt. 1640) 423, 442. So I shall discountenance the reply brief. ​ It was the contention of appellant’s counsel that the trial Court failed to analyse and consider any of the issues raised by the appellant in its reply on points of law and that this is borne out by page 286 of the record of appeal. It was the position of 1st respondent’s counsel that this is a matter of style of writing of judgment or ruling which is peculiar to each judge.

At page 268 of the record, the learned judge of the lower Court held that no reason had been provided by the appellant for its failure to submit the dispute between the parties to arbitration. This cannot be correct, for the appellant (as claimant) in its replies at pages 237 -241 and 261 of the record gave the reasons for its not submitting the dispute to arbitration. The trial Court obviously overlooked the issue and argument of appellant’s counsel on the point. All Courts especially non-final Courts are required to treat all issues raised and argued by parties before reaching a decision.

See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332, 361, Nagabu Company Ltd v. Unity Bank Plc (2013) All FWLR (Pt. 698) 871, 896, and C. N. Okpala and Sons Ltd v. Nigerian Breweries Plc (2018) 9 NWLR (Pt. 1623) 16, 28. The lower Court did not consider and resolve the issue and points raised and argued by appellant’s counsel before reaching its decision. Now, the issue or point that was left untreated by the lower Court was to the effect that the time to resort to arbitration had effused and so the appellant was right to head straight to the lower Court without resorting first to arbitration.

I shall take the liberty of setting out the relevant clauses of the written agreement between the parties: Article 7 of the articles of agreement states: “If any dispute or difference as to the construction of this contract or any matter of thing of whatsoever nature arising thereunder or in connection therewith shall arise between the Employer or the Architect/Co-ordinator on his behalf and the Contractor either during the progress or after the completion or abandonment of the works, it shall be and is hereby referred to arbitration in accordance with the clause of the Conditions of Contract.” Clause 30 (7) of the Appendix No. 1 to the articles of agreement in part reads: “Unless a written request to concur in the appointment of an arbitrator shall have been given under clause 35 of these conditions by either party before the Final Certificate had been issued or by the Contractor within 14 days after such issue, the said certificate shall be conclusive evidence in any proceedings arising out of this contract (whether by arbitration under clause 35 of these conditions or otherwise) that the Works have been properly carried out and completed in accordance with the terms of this contract and that the necessary effect has been given to all the terms of this contract which require an adjustment to be made to the Contract Sum, except and in so far as any sum mentioned in the said certificate is erroneous by reason of …” Clause 35 (1) provides: “Provided always that in case any dispute or difference shall arise between the Employer or the Architect on his behalf and the Contractor either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing whatsoever nature arising thereunder or in connection therewith (including any matter or thing left by this Contract to the discretion of the Architect or the withholding by the Architect of any certificate to which the Contractor may claim to be entitled or the measurement and valuation mentioned in Clause 30 (5) (a) of these Conditions or the rights and liabilities of the parties under clauses 25, 26, 32 or 33 of the Conditions) then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or Vice President for the time being of the Nigerian Institute of Architects.” Clearly clause 30 (7) above does not talk about time within which a party may resort to arbitration after which the obligation to resort to arbitration is extinguished: it talks about the effect of failure to give a written request to concur in the appointment of an arbitrator either before the Final Certificate has been issued or within 14 days after the said Certificate has been issued, namely;

”the said certificate shall be conclusive evidence in any proceedings arising out of this contract…” It does not preclude or bar resort to arbitration and does not give any time limitation for doing so.

This is even made clearer by the words in brackets, to wit: ”whether by arbitration under clause 35 of these conditions or otherwise.” Clause 35 (1) supra. provides for arbitration in case any “dispute or difference shall arise… either during the progress or after the completion or abandonment of the Works, as to the construction of this Contract or as to any matter or thing or whatsoever nature arising thereunder or in connection therewith.” (underling is mine for emphasis) There is, as I have already stated, no time limitation as regards resort to arbitration in the contract as canvassed by counsel for the appellant.

The effect of the foregoing is that though the lower Court did not consider the point raised by appellant’s counsel touching on the issue of expiry of time within which resort is to be made to arbitration, the failure did not occasion a miscarriage of justice. See BPS Construction and Engineering Co. Ltd v. F. C. D. A. (2017) 10 NWLR (1572) 1, 14, SCC (Nig.) Ltd v. Anya (2013) ALL FWLR (Pt. 703) 2047, 2062 and Nigerian Communications Commission v.

Motophone Ltd (2019) 14 NWLR (1691) 1, 37 where Aba-Aji, JSC, opined that: “Moreover, even failure to consider all issues submitted before it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice occurred.” An arbitration agreement is an agreement by two or more persons that a dispute or potential dispute between them shall be resolved and decided in a legally binding way by one or more impartial persons in a judicial manner upon evidence put before him or them. It may stand alone or be incorporated in a commercial agreement as in this instance.

See Onuselogu Enterprises Ltd v. Afribank (Nig.) Plc (2005) 12 NWLR (Pt. 940) 577, 585 and A. Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases page 145. An arbitration agreement or clause does not oust the jurisdiction of the Court (for parties have no power to contract out of the Constitution) but the Court in the exercise of its power under a statute may stay proceedings in an action brought before it in breach of an agreement to settle a dispute by arbitration. In the case of Mainstreet Bank Capital Ltd v.

Nigeria Reinsurance Corporation Plc, supra. 444 – 445, Kekere-Ekun, JSC, in resolving a similar issue relied on and quoted the case of Obembe v. Wemabod Estates Ltd (1977) 5 SC (Reprint) 70 thus: “The lower Court was right when it held that an agreement to have recourse to arbitration in the event of a dispute does not oust the jurisdiction of the Court. In Obembe v.

Wemabod Estates Ltd (1977) 5 SC (Reprint) 7 @ 79 lines 19 to 28, this Court per Fatayi-Williams, JSC, explained the legal position thus: “As we have pointed out earlier, any agreement to submit a dispute to arbitration, such as the one referred to above, does not oust the jurisdiction of the Court. Therefore, either party to such an agreement may, before a submission to arbitration or an award is made, commence legal proceedings in respect of any claim or cause of action included in the submission. (See Harris v. Reynolds (1845)7 QB 71).

At common law, the Court has no jurisdiction to stay proceedings; where however there is a provision in the agreement, as in Exhibit 3, for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its power under Section 5 of the Arbitration Act.” See also Sino-Afric Agriculture & Industries Company Ltd v. Ministry Of Finance Incorporation (2013) LPELR – 22370 (CA) and Onyekwuluje v. Benue State Government (2015) 16 NWLR (Pt. 1484) 40.

Counsel for the appellant referred to a class of arbitration agreement or clause that is termed the Scott v Avery clause which is a provision in an arbitration agreement to the effect that no action shall be brought until an arbitral award has been made. This contractually forbids resort to a Court until the arbitration process has been exhausted. The leading case on the position is Scott v. Avery 1856 HL 811. See Rhodes-Vivour’s Commercial Arbitration Law and Practice in Nigeria through the Cases supra page 147.

Counsel set out the position of the Supreme Court on the clause as expressed in Obembe v. Wemabod Estates Ltd supra. I do not intend to comment on the submission by appellant’s counsel as the arbitration clause in this instance does not fall into this category of arbitration clause.

Section 5 (1) of the Arbitration and Conciliation Act provides that: “If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any steps in the proceedings, apply to the Court to stay proceedings.”​

Let me pause at this stage to quickly settle a point raised by appellant’s counsel to the effect that since the 1st and 2nd respondents filed notices of preliminary objection to the jurisdiction of the Court instead of applications for stay of proceedings, the lower Court had no authority to consider the same as it is not known to the law. The simple answer to this submission is to be found in the case of Mainstreet Bank Capital Ltd v.

Nigerian Reinsurance Corporation Plc supra. 445 where Kekere-Ekun, JSC, opined that: “…since an arbitration clause in an agreement does not oust the jurisdiction of the Court, an objection to the jurisdiction of the Court is in effect an application to stay proceedings pending arbitration.” That gives a quietus to the contention of appellant’s counsel.

Where a party to an arbitration agreement proceeds first to Court before resorting to arbitration as agreed, the Court leans towards granting an application for stay of proceedings pending arbitration provided the party applying did not file a defence or take steps in the proceedings other than entering appearance. Where a party delivers a defence or makes any application for extension of time, he will be deemed to have waived his right to insist on recourse to arbitration.

See Mainstreet Bank Capital Ltdsupra. 445, Kano State Urban Development Board v. Fanz Construction Co. Ltd (1990) 4 NWLR (Pt. 142) 1 and Osun State Government v. Dalami Nig. Ltd (2003) 7 NWLR (Pt. 818) 72, 93. The question that follows therefore is was there a waiver by the 1st and 2nd respondents of the right to insist on a recourse to arbitration? In answering the question, I shall start by considering the processes filed by the 2nd respondent. They are as follows: 1. A statement of defence. See pages 175-178 of the record. 2.

A written deposition of a witness in opposition to the motion for summary judgment etc. see pages 179-180 of the record. 3. Written address in opposition to the motion for summary judgment. See pages 183-185 of the record. The processes above were filed on the same day that the preliminary objection to the jurisdiction of the Court was filed, to wit; 25/7/2016. The 2nd respondent by the filing of those processes took steps in the matter and thereby waived his right to insist on a recourse to arbitration.

His counsel admitted this position at page 266 of the record when he stated before the Court that: “We concede on the 1st arm of our prayer because we have taken steps because we filed a statement of defence…” In respect of the 1st respondent, it should be put on record that the mere fact that the 2nd respondent took steps does not by itself affect adversely the application of the 1st respondent though the lower Court stated that the outcome of the 2nd respondent’s application would dispose of the 1st respondent’s objection.

This is because the objection of the 1st respondent still maintained its individual character different from that of the 2nd respondent. I shall therefore consider the processes filed by the 1st respondent apart from the notice of preliminary objection. The processes are: 1. Statement of defence. See pages 186-188 of the record. 2. List of witness – page189 of the record. 3. Written deposition of the witness – pages 190-193 of the record. 4. Written address – pages 193-199 of the record. 5. Notice of intention to defend – page 200 of the record. 6.

Affidavit disclosing a defence on the merit – pages 201-203 of the record 7. Motion on notice for extension of time to file notice of intention to defend, affidavit disclosing defence on the merit, written address and statement of defence and a deeming order. See page 212 of the record. It must be mentioned that those processes were filed on 26/7/2016 while the notice of preliminary objection was filed on 8/7/2016. In other words, the processes listed above were filed after the notice of preliminary objection was filed by the 1st respondent.

A similar situation arose in the case of Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. At page 446 Kekere-Ekun, JSC, dissolved the puzzle, by rejecting the position of the Court of Appeal that there was no waiver, in the following words: “I must state however, with due respect to the lower Court, that it was wrong when it held that the steps taken by the respondent after filing of the preliminary objection did not preclude it from applying for stay of proceedings pending arbitration vide Section 5 (1) of ACA.

From the decisions of this Court earlier referred to, any step taken apart from seeking stay of proceedings (or seeking to oust the jurisdiction of the Court) amounts to a step in the proceedings and the applicant is deemed to have waived his right on arbitration agreement.” I find therefore that by filing the processes listed earlier after filing the notice of preliminary objection, the 1st respondent waived its right to insist on a recourse to arbitration. In the light of the foregoing, I enter a negative answer to issue 1 and resolve the same in favour of the appellant.

ISSUE 2 – Was the lower Court right in not entering judgment in favour of the appellant? ​ Appellant’s counsel submitted that appellant established its case under the rules of Court and as such is entitled to the reliefs claimed. He referred to the writ of summons and motion for summary judgment together with the annexures. He noted that the case of the appellant was by way of summary judgment procedure which he said is usually adopted when a claimant has a good case and the defendant has no reasonable defence.

He submitted that the respondents have no defence as they failed to annex or exhibit any documentary evidence showing that the appellant is not entitled to the sum due. He therefore argued that the appellant is entitled to judgment without the need for trial de novo pursuant to the inherent power of the Court and Order 7 Rule 2 (1) of the Court of Appeal Rules.

He added that the appellant is also entitled to the alternative prayers as contained in the notice of appeal. 1st respondent’s counsel contended that lower Court acted in the interest of justice by first determining the preliminary objection of the 1st and 2nd respondents. It was his further contention that in view of the merit of the objection, the lower Court was right in striking out the matter and not looking at the substantive suit in order to determine whether or not to grant judgment in appellant’s favour. He added that Order 7 Rule 2 (1) of the rules of this Court was inapplicable.

He stressed the point that the application for summary judgment which is in the nature of a motion had not been argued or moved before the lower Court for it to pass judgment on. He stated the trite position of the law that a Court is expected to make a specific ruling on an application before it after hearing counsel. ​ Counsel submitted that it is not the law that where a notice of intention to defend is filed, it must be accompanied with documentary exhibit.

The appellant is essentially calling on this Court to invoke its power under Section 15 of the Court of Appeal Act and Order 4 Rule 1 of the Court of Appeal Rules, 2021 to determine the case since the decision of the lower Court striking out the case of the appellant cannot stand. For the Court to exercise its power under the said provisions, the following factors must be present: 1. The lower Court must have the power to adjudicate in the matter. 2. The real issue raised by the appellant’s claim at the lower Court must be seen to be capable of being distilled from the grounds of appeal. 3.

All necessary materials must be available to the Court for consideration. 4. The need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented. 5. The injustice or hardship that will follow if the case is remitted to the lower Court must be clearly manifest. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Mainstreet Bank Capital Ltd v. Nigerian Reinsurance Corporation Plc supra. 447.

For Section 15 of the Court of Appeal Act to apply, the matter must have been raised in the lower Court and that Court did not or failed to take the appropriate decision. See Yusuf v. Obasanjo (2003) 16 NWLR (Pt. 847) 554, 640. It is pertinent to re-state that there were two motions pending before the lower Court, to wit: 1. Motion for summary judgment 2. Motion by the 1st respondent for extension of time to file its notice of intention to defend, affidavit disclosing defence, written address and statement of defence and a deeming order.

None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.

Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169.

Again, a Court cannot rule on a motion that has not been moved. Since the motions itemized above had not been moved at the trial Court nor can they or have they been moved in this Court, the coast was not clear for judgment to be delivered by the lower Court and so this Court cannot proceed to exercise its power under Section 15 of the Court of Appeal Act to enter judgment one way or the other. Given the stage of the case at the lower Court, I enter an affirmative answer to issue 2 and resolve it against the appellant.

On the whole and in the light of my resolution of issue 1, I find that the appeal has merit and I allow the same. I hereby set aside the ruling of the lower Court and, in its place, I dismiss the preliminary objections of the 1st and 2nd respondents. It is directed that the case be remitted to the Honourable Chief Judge of Delta State for assignment to a judge other than Gbemre, J. for speedy hearing and determination of the pending motions. I assess the costs of this appeal at N300,000 in favour of the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the lead judgment of my learned brother, J. E. EKANEM, JCA. My Lord has fully covered the issues in his lead judgment. I am in full agreement with his reasoning and conclusion that the appeal has merit. I abide by the orders made therein. ABIMBOLA OSARUGUE OBASEKI –

ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother JOSEPH EYO EKANEM, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal has merit and I allow the same. I abide by all consequential order (s) in the lead judgment.

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:- First, the signature of counsel, which may be any contraption. Secondly, the name of Counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of Legal Firm.” This position was restated by the Learned Law lord in the case of Nigerian Army v.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e the Legal Practitioners Act). All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be contraction. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the legal firm. In this case, the originating summons was signed but there was no name of counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgment

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

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The Lagos Judicial Division of the High Court of Lagos State on the 5th April, 2012 delivered its judgment in the Suit No: LD/1240/2011 (Naaja Standard Resources Company Limited & Ors. vs. Union Bank Plc.), wherein the Court entered judgment in favour of the Respondent/Defendant. The Appellants, who were the Claimants in the lower Court, initiated the suit vide the Writ of Summons and Statement of Claim dated and filed on 5th July, 2011 with the 2nd Claimant’s statement on oath filed alongside.

The reliefs sought from the lower Court as endorsed on the face of the writ and the statement of claim are as follows: 1. An Order of this Honourable Court granting perpetual injunction restraining the Defendant from selling, advertising for sale in any form or manner or canvassing for the sale of the 3rd Claimant’s property situate along Olakunle Soga Street, Oriya Village, Ikorodu, Lagos State with Certificate of Occupancy No: 62/62/20029 dated 10th July, 2002 as third party mortgage is invalid and or irregular. 2.

A DECLARATION that by the letter dated 4th May, 2011, the 3rd party mortgage with the 3rd Claimant with respect to the aforementioned property is null and void. 3. A Mandatory injunction directing the Defendant to refund to the 1st Claimant’s all the monies paid through Union Bank Plc between 6th April, 2010 to 12th April, 2010 representing rates, taxes and dues including legal perfection fees for the 3rd party mortgage with the 3rd Claimant. 4.

An Order of this Honourable Court directing the Defendant to deduct all the payments for taxes, dues and legal perfection of the third party mortgage and also deduction from excess charges on interest rate in the transaction in line with Central Bank of Nigeria’s guidelines and regulations on loans to customers for the period April 2010 – May 2011 and thereby determine the actual sum and interest due to the Defendant. 5. An Order directing the Defendant to release forthwith the original title documents belonging to the 3rd Defendant, Mr.

Ifeanyi Ezeobi with Certificate of Occupancy No. 62/62/20029 situate along Olakunle Soga Street, Oriya Village, Ikorodu, Lagos State. ​In support of the application is an eleven paragraphs affidavit of urgency filed by the Appellants in the suit, it was deposed to by the 2nd Appellant herein. The Appellants filed a Motion on Notice on 5th July, 2011 wherein they sought for the following reliefs: 1.

An order of interlocutory injunction restraining the Defendants/Respondents herein, whether by themselves, their servants, agents, privies, assigns and successors-in-title from selling, negotiating the sale or concluding the sale, advertising for sale in any form or manner or canvassing for the sale of the 3rd Claimant’s property situate along Olakunle Street, Oriya Village, Ikorodu, Lagos State with Certificate of Occupancy No: 62/62/20029 dated 10th July, 2002, pending the hearing and determination of the substantive matter. 2.

An interlocutory injunction restraining the Defendant, their agents, servants, officers or by whatever name so called from resorting to violence, arrest, detention, intimidation and or harassment of the Applicants by the Respondent either by herself and or using any security agents/organizations and or commissions pending the determination of the substantive suit. ​The application was supported by a twenty paragraph affidavit deposed to by the 2nd Appellant, who was the chairman of the 1st Appellant Company; same was annexed with a considerable number of documentary exhibits.

There was also a written address in support of the application, as reproduced in pages 1-51 of the record. The Respondent filed a Counter affidavit on 5th July, 2011 of fifteen Paragraphs sworn to by Matthew Nkap, a legal practitioner in the law office of the Respondent’s counsel with a written address in support. The Respondent filed the statement of defence & counter-claim wherein the Respondent counter claimed against the Appellants, jointly and severally, as follows: 1.

The sum of N12, 997, 968. 97 being the outstanding indebtedness of the Claimants inclusive of interest as at 29th July, 2011 arising from overdraft facilities granted to the 1st and 2nd Claimants. 2. Interest at the rate of 21% from August 30, 2011 until judgment and thereafter at the rate of 10% until final liquidation. The Appellants filed their Reply/Defence to Counter Claim and a written address in support of the reply to the counter-claim.

There was also a Reply to Counter Affidavit dated 28th October, 2011 the fifteen paragraph reply affidavit was deposed to by Evarist Ezeoke, Esq., the Appellants’ counsel. It is important to note that the Respondent later filed a Motion on Notice dated 21st February, 2012 which was filed on 29th February, 2012, same was brought pursuant to Order 39 Rule 1 and Order 19 Rules 1 & 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004, therein; the Respondent prayed the lower Court for the following reliefs: 1.

An Order entering judgment in favour of the Defendant/Counter-Claimant/Applicant herein in the sum of N11, 000, 000.00 (Eleven Million Naira) only, based upon admissions made by the Claimants/Respondents. 2. An Order awarding commercial interest at the rate of 25% per annum on the said sum from when judgment is entered until full liquidation of the said judgment sum, and; Such further order(s) as this Honourable Court may deem fit to make in the circumstance.

The application was supported by a sixteen paragraph affidavit which was deposed to by Jayne Nelson Uzuegbu, a legal practitioner in the law office of counsel for the Respondent herein with a written address. As gleaned from the record before the Court, the said application for judgment was later withdrawn by the Respondent on 22nd March, 2012, consequent upon which the motion was struck out by the lower Court.

A similar application was however filed on 1st March, 2012 vide the motion on notice praying the lower Court, inter alia, for “An Order entering judgment in favour of the Defendant/Counter-Claimant/Applicant herein in the sum of N12, 000, 000.00 (Twelve Million Naira) only, ……”, the application was filed on other terms similar to the withdrawn application. See pages 145-158 of the record. At Pages 163-167 of the record was reproduced the Appellants’ Written Address in Opposition to Motion for Judgment dated 1st March 2012, it was filed on 9th March, 2012.

The written address was in support of the seventeen paragraph Counter Affidavit Against Motion for Judgment dated 1st March 2012 which was deposed to by Evarist Ezeoke, of counsel representing the Appellants – Pages 170-174 of the record. The respondent, in return, filed a thirteen paragraph Reply Affidavit to Counter Affidavit Sworn to on the 9th March 2012, it was sworn to by Jayne Nelson Uzuegbu, of counsel representing the Respondent, same is found in pages 175-177 of the record. The Respondent filed a reply on points of law as found in pages 178-180 of the record.

In a considered but concise judgment delivered on 5th April, 2012, as reproduced in Pages 221-224 of the record, the learned trial judge entered judgment in favour of the Respondent herein, in the sum of N12 Million, found by the lower Court to have been admitted by the Appellants herein, post judgment rate of 10% was equally granted on the judgment sum in favour of the Respondent. The Appellants were irked by the said judgment of the lower Court and had instituted this appeal vide the Notice of Appeal filed on 24th April, 2012.

The Appellants’ Brief of Argument was filed on 11th February, 2013 in which two (2) issues are distilled for determination, thus: 1. “Whether the Honourable Court below was right in awarding judgment in the sum of N12,000,000.00 (Twelve Million Naira) to the Respondent without properly evaluating all the pleadings and documents before the Court, particularly the contract dated 1st April, 2010, counter affidavit against motion for judgment and written address in opposition dated 9th March, 2012.” 2.

“Whether fair hearing was accorded the Appellants/Applicants in determining this suit in its entirety and the award of N12,000,000.00 as judgment sum on admission, in total and utter disregard to the entire pleadings and the issue of breach of the contract that gave rise to the transaction by the Respondent in the Third Party Mortgage Transaction.” The Respondent’s Brief of Argument was filed on 12th January, 2022, deemed properly filed and served on 18th January, 2022. Two issues for determination were distilled by the Respondent, to wit: 1.

“Is the lower Court’s judgment against the Appellants reasonably disputable considering the pleadings and overwhelming documentary evidence as well as diverse admissions all of which point irresistibly to their liability for the amount awarded.” 2.

“Whether the entire proceedings of the lower Court which culminated in the judgment dated 5th April, 2012, based upon the express admissions by the Appellants in the 1st Appellant’s letter dated 3rd March, 2011 and copiously replicated in the Appellants’ pleadings in any way, manner or form, violated the Appellants’ right to fair hearing and therefore necessitating setting aside the said judgment by this Honourable Court of Appeal.” The Appellant responded on points of law, to the supposed new legal issues raised in the Respondent’s brief of argument.

The Appellants’ Reply on Points of law was filed on 17th January, 2022 but deemed as properly filed and served on 18th January, 2022. Counsel for the Appellants, in arguing issue 1, highlighted the background facts leading to the initiation of the suit in the lower Court, as being that of a loan facility, in the sum of N10 Million, granted to the 1st Appellant Company on 1st April, 2010 by the Respondent Bank, the loan contract, which had a tenor of 1 year, was said to have been breached in some of its fundamental terms, hence the institution of the suit in the lower Court to seek redress.

It was submitted that the lower Court failed to properly evaluate the pleadings of the Appellants as well as the documentary evidence placed before it, prior to its decision that the Appellants admitted their indebtedness to the Respondent Bank, in the sum of N12 Million. Counsel contended vide the decision in Nwankwo vs. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171 that the Appellants were never allowed to explain the circumstances and show that the admission was due to the ignorance of the real facts or other circumstances which sufficiently explain them.

Counsel restated the law to the effect that an admission must be clear and unequivocal -IMB Plc. vs. Comrade Cycle Co. Ltd. (1998) 14 NWLR (Pt. 574) 460. Counsel asserted that the Appellants, at nowhere, admitted to pay the said sum as the debt due to the Respondent. That the lower Court actually neglected and paid no heed to the pleading filed before it by the Appellants before arriving at its decision.

It was contended that the lower Court’s decision was also premised on a Court process said to have been duly filed by the Appellants in the lower Court, it was submitted also that the issues of accrued interests between the parties and that of refund to the Appellants by the Respondent, were left unresolved by the lower Court. The Court was urged to resolve the issue in favour of the Appellants. On issue 2, learned counsel emphasized the import of the need of the Court to dispense justice by affording fair hearing in the matter before it – Somai Sonka Co. Nig. Ltd. vs.

Adzege (2001) 9 NWLR (Pt. 718) 312. The Court was urged to allow the appeal and set aside the judgment of the lower Court, and that the suit be remitted to the lower Court for retrial. On its part, the Respondent averred that the provision of Order 19 Rules 1 and 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004, was pivotal to the case of the Respondent as it relates to the motion for judgment in the lower Court and the decision arrived therefrom by the lower Court, which is in contention in the instant appeal.

It was then submitted that the lower Court was correct to enter judgment in favour of the Respondent, as in the instance, in line with its rules – National Bank of Nigeria Limited vs. Gutherie Nig.

Ltd. & Anor. (1987) 2 NWLR (Pt. 56) 255 at 257. ​On whether selected paragraphs of the Appellants’ pleadings suffice as admission by the Appellants that could validly ground judgment being entered in favour of the Respondent, as in the instance, counsel cited the provision of Section 20 of the Evidence Act, 2011, and submitted that the Appellants expressly admitted the indebtedness in the sum of N12 Million vide their letter dated 3rd May, 2012, addressed to the Respondent – Unity Bank Plc. vs. Bouari (2008) 7 NWLR (Pt. 1086) 372 at 381.

According to Counsel, the Appellants are bound by their said admissions. On whether or not the right to fair hearing of the Appellants was infringed upon, it was the Respondent’s contention that the Appellants’ allegation of breach of fair hearing was diversionary and was purposely to confuse the Court.

It was argued that the parties were in agreement that there was an overdraft facility granted and that same was due for repayment, it was averred that the construction of the Appellants’ letter dated 3rd May, 2011 and subsequent averments in their statement of claim, amongst others, precipitated the Respondent’s motion for judgment as filed in the lower Court, and the subsequent decision of the lower Court being appealed herein.

It was stated that the Respondent made an honest mistake in referring to selected paragraphs of the Appellants’ Counter Affidavit dated January 25, 2010 and that the said process was non-existent as held by the lower Court. The Respondent submitted that the lower Court was right in its finding that the process was not in existence at trial.

On the argument canvassed by the Appellants on the issue of 25% interest rate accruable on the subject overdraft transaction between the parties herein, it was argued that the issue did not arise from any of the grounds of appeal as set down in the notice of appeal filed by the Appellants – Onwubuya vs. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94 at 109.

That the Appellants are precluded from importing, into the contract between the parties, terms not intended in the said contract as reflected in the Respondent’s letter dated 1st April, 2010 addressed to the 1st Appellant Company, titled Banking Facility.

Counsel further submitted that the Appellants were liable to the Respondent for the said judgment sum as awarded by the lower Court. ​In the reply, by the Appellants, supposedly on points of law, it was observed that learned counsel for the Appellants nearly fell into the error of re-arguing the same issue and in the same manner as canvassed in the Appellants’ brief. On the issue of admission by the Appellants, learned counsel cited the decision in Insurance Brokers of Nigeria vs. Atlantic Textile Manufacturing Co.

Ltd. (1996) 8 NWLR (Pt. 466) 316 at 321 and submitted that the judgment of the lower Court was hastily handed down against the Appellants. The Court was urged to set aside the said judgment of the lower Court.

RESOLUTION OF THE ISSUES FOR DETERMINATION IN THE APPEAL Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 which is in pari materia with the 2004 Rules provides: “The Judge may, on application, at a case management conference or at any other stage of the proceedings where admissions of fact have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.” At paragraphs 11, 12 and 19 of the statement of claim contained in the writ of summons dated 5-07-2011 it was averred to thus:-

11 ”the 2nd Claimant pursuant to the company’s resolution, on the 3rd May, 2011 by their letter indicated that the company, 1st Claimant is willing and ready to finally liquidate and requested that interest should be stopped on the account. The principal amount and interest in the total sum of N12,000,000.00 to be paid via a post dated cheque to be issued and dated May 31st 2011, and another in June 30th, 2011.

The Claimant shall rely on the said letter dated the 3rd May, 2011 during trial.” 12 ”The Defendant on the same date, 3rd May 2011, by their letter addressed to the Chairman of the 1st Claimant vehemently refused to accept the mode of payment of the overdraft facility’s principal sum and interest on two installments of N60,000,000.00 (six Million Naira only) on 31st May 2011 and 30 June 2011, insisting that it has to be paid 100% on the 31 May 2011 with full interest, or else a penalty interest will be generated on the account.

The Claimant shall at the trial of this suit rely on the said letter by the Defendant dated 3rd May, 2011.” 19 ”The Claimants aver that they are ready and willing to liquidate the overdraft facility and legitimate interest as stated by their letter of 3rd May 2011, in two installments of N6,000,000.00 (Six Million Naira) each and unless this Honourable Court intervenes, the Defendant will carry out its hatched plan and visit a lot of injustice on the Claimants and convert the property to itself or dispose of the property.” It seems clear and without any doubt that the above provisions of the Rules of the Lower Court gave power to that Court as a matter of priority to enter judgment and/or make any other appropriate order in that regard to a deserving party whenever there is admission(s) either in the pleading or howsoever the admission(s) are made.

In the present circumstances therefore, the totality of the Appellants’ averments in Paragraphs 11, 12 and 19 of the Statement of Claim (Pages 4 & 5 of the record of Appeal) which were replicated in Paragraph 12 of the 2nd Appellant’s statement under (sic) oath (Page 9 of the record of Appeal) and also in the 1st Appellant’s letter to the Respondent dated 3rd May, 2011 (Page 29 of the record of Appeal), point irresistibly to the fact of the Appellants’ indebtedness to the Respondent and therefore constitute admissions of facts.

The procedure under Order 19 Rule 4 of the (Civil Procedure) Rules by which the Lower Court entered judgment in favour of the Respondent summarily without proceeding to formal trial by calling of evidence is well entrenched and recognized in the firmament of Nigerian jurisprudence, having been adopted in a long list of cases by the Court of Appeal as well as the Supreme Court. In National Bank of Nigeria Limited vs.

Guthrie (Nigeria) Limited & Anor. (1987) 2 NWLR (Pt. 56) 255 at 257, it was held as follows: “The object of the provision of the Rules relating to judgment on admission is to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed”. Similarly, in the case of Anason Farms Ltd vs.

Nal Merchant Bank (1993) 3 NWLR (Pt. 331) 243, it was held as follows: “…where admission of facts have been made, either on the pleadings or otherwise, a party may at any stage of the cause or matter apply to the Court or Judge in Chambers for judgment or order as upon such admission as may be entitled to without waiting for the determination of any other question between the parties.” It therefore follows that the ruling/judgment of the lower Court dated 5th April, 2012 made pursuant to the Respondent’s application of the Motion on Notice dated 1st day of March, 2012, based on the express admissions of the Appellants in their pleadings and other documentary evidence before the lower Court is valid and well founded in law.

Section 20 of the Evidence Act defines admission as follows: “An admission is a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereafter mention in this Act…….” The above definition from the Evidence Act is very apt to the circumstances of the present case in the sense that an admission can be oral, written or by conduct from which an inference can be drawn from.

In the present circumstance therefore, it is obviously inferable from the 1st Appellant’s letter to the Respondent dated 3rd May, 2012 that the Appellants admitted/acknowledged their indebtedness to the Respondent and the attendant readiness to liquidate same in two equal installments of N6,000,000.00 (Six Million Naira) each.

The said letter and the subsequent averment in the Appellants’ pleadings constitute express admission/ acknowledgement of indebtedness and readiness to liquidate same and having been so admitted, the Appellants cannot and would not be allowed to pull a wool over the eyes of this Honourable Court and be heard in argument to the contrary. After all parties and the Court are bound by the admissions/pleadings – Unity Bank Plc v Bouari (2008) 7 NWLR (Pt. 1086) 372 AT 381, Abubakar v. Joseph (2008)13 NWLR (Pt. 1104) 307.

Furthermore, Section 123 of the Evidence Act, 2011 vividly provides as follows: “No fact need be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings”.

The Appellants, having admitted in clear and expressed terms their indebtedness to the Respondent, have absolutely removed the legal burden of proof on the Respondent to otherwise prove same and consequently, the lower Court was therefore right in entering judgment for the Respondent on the admitted sum of N12,000,000.00 (Twelve Million Naira) being the principal debt and accrued interest.

The lower Court took full cognizance and made reference to the Appellants’ Counter Affidavit dated March 9, 2012 in opposition to the Respondent’s motion judgment, there is therefore really no basis for the Appellants’ claim of absence of fair hearing in the circumstances. In Adebayo vs. A.G., Ogun State (2008)7 NWLR (Pt. 1085), 201 at 221-222, G-C thus: “Learned Counsel for the Appellant robed in the fair hearing principle.

I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.

They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage.

On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.” This Appeal is therefore unmeritorious and is hereby dismissed. The judgment of the lower Court in Suit No. LD/1240/2011 delivered on 5th April, 2012 is hereby affirmed.

Fifty thousand Naira is hereby awarded as cost in favour of the Respondent and against the Appellant.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Abdullahi Mahmud Bayero, JCA. I agree with the legal reasoning and conclusion in it. l too dismiss the appeal. I abide by the consequential orders decreed in the leading judgment.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the judgment delivered by my Learned Brother, ABDULLAHI M. BAYERO, JCA wherein the facts and issues in contention are set out in extensor. Admission of a claim (or part thereof) by an adversary in litigation, whether contained in pleadings or otherwise, is the best form of proof, which obviates the necessity of leading evidence to establish that very same claim. It is hornbook law that facts admitted need not be proved: S. 123 of the Evidence Act 2011, UREDI v DADA (1988) 1 NWLR (PT. 69) 237, CHIEF OKPARAEKE & ORS v O.

EGBUONU & ORS (1947) 7 WACA 53 and NDAYAKO v JIKANTORO & ORS (2004) 8 MJSC 163 at 185. As Aniagolu, JSC put it in OJUKWU v ONWUDIWE& ORS 179841 NSCC 172 at 199: “Another principle deeply enshrined in our jurisprudence is that admissions made do not require proof for the simple reason, amongst others that “out of the abundance of the heart the mouth speaketh” and that no better proof is required than that which an adversary wholly and voluntarily owns up on”.

In our adjectival law, an issue in a civil action conducted by pleadings emerges only where the Court, upon a comparison of the averments in the statement of claim and the statement of defence, identifies the matters actually in dispute between the parties and upon which it is necessary to lead evidence. There is no dispute between parties on matters which have been admitted in the pleadings and generally, evidence on such admitted matters is to be excluded.

The isolation of issues truly in dispute from those not in dispute enables the Court to save valuable time and cost, and it is by this process that the Court is enabled to receive evidence only on matters in respect of matters in controversy between the parties.

See ADEDEJI v OLOSO (2007) ALL FWLR (PT. 356) 670 at 634-635 -per Oguntade JSC and INDIA GENERAL INSURANCE COMPANY v THAWARDES (1978) 3 SC 143. ​In the case at hand, the Appellants herein (as claimants) averred in paragraph 19 of the statement of claim that they are “ready and willing to liquidate the overdraft facility and legitimate interest as stated in their letter of 3rd May 2017, in two installments of N6,000,000.00 (Six Million Naira) each and unless this Honourable Court intervenes, the Defendant will carry out its hatched plan and visit a lot of injustice on the Claimants and convert the property to itself or dispose of the property”.

As also averred in paragraphs 11 and 12 of the statement of claim, the letter of 3rd May 2011 referred to above was written pursuant to a resolution of the 1st Appellant (qua 1st claimant at the lower Court) to that effect. There is therefore no gainsaying that the Appellants admitted, unequivocally, their indebtedness to the Respondent in the sum of N12,000,000.00 (Twelve Million Naira) as principal and accrued “legitimate interest” on the overdraft facility granted to them by the Respondent.

Fundamentally, Order 19 Rule 4 of the High Court of Lagos State (Civil procedure) Rules 2012 provides that a Judge may, on application, at a Case Management Conference or any other stage of the proceedings, enter judgment on the basis of admission of facts in the pleadings or otherwise without waiting for the determination of any other question between the parties.

The lower Court cannot therefore be faulted for entering the judgment on the basis of the Appellants’ admission in the pleadings. ​In light of the foregoing, I cannot but affirm my agreement with the leading judgment dismissing this appeal for want of merit.

Judgment

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the decision, ruling of the Katsina State High Court sitting at Funtua delivered by Hon. Justice Lawal Garba Abdulkadir on 13th August, 2020 in Suit No. KTN/FT/38/2018. The Appellant as claimant in the Court below brought originating summons in respect of a judgment and ruling delivered on 29th day of July, 2015 and 3rd January, 2017 respectively by the Upper Sharia Court No.2 Funtua.

The Appellant’s originating summons was brought for the determination of the questions hereunder and consequential orders hereinafter: 1. “WHETHER the judgment debtor still retains ownership of the property situated and lying at Sokoto By-pass Dahiru Bauchi Road, Unguwar Wanzamai; Funtua. Attached and sold by the judgment creditor on 29th November, 2018 in fulfilment of the judgment of the Court. Against the judgment debtor. 2.

If the answer to the above question is in the AFFIRMATIVE, a declaration that the judgment creditor cannot sell the property in question of the fulfillment of the judgment of the Court. Between the judgment creditor and the judgment debtor. 3. An order declaring the auction sale on 29th November, 2018 of the property in question as null and void and no effect whatsoever. 4. A consequential order directing the sheriff and/or his legal representatives and/or his staff to release forthwith any hold on the property in question. 5.

And for such further orders as the Court may deem fit to make in the circumstance.” Thereafter on 4/2/2019, Mr. Lawal Ahmadu Funtua of counsel to the 1st Respondent judgment creditor filed a notice of preliminary objection wherein he contends that the trial High Court lacks the requisite jurisdiction to hear and determine the suit. The grounds of the 1st Respondent’s preliminary objection are as stated on page 14 of the Record of Appeal as follows: 1.

“The Honourable Court lacks jurisdiction to hear and determine this suit in its original jurisdiction as provided under Section 272(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended (2011). 2. The Honourable Court lacks jurisdiction to hear and determine this suit by way of Originating Summons because the entire suit constitute the question of fact alone. 3. The Honourable Court lacks jurisdiction to hear this suit as there is no locus standi to institute this action against the Judgment Creditor. 4.

The Honourable Court lacks jurisdiction to hear this suit for failure of the claimant to join the proper party to the suit.” In a considered ruling delivered on 13-08-2020, the learned trial Judge upheld the 1st Respondent’s preliminary objection and declined jurisdiction to hear the Appellant’s originating summons. In ruling in favour of the 1st and 3rd Respondents, the learned trial Judge held inter alia first at page 75 of the Record of Appeal, that: “Also, this Court in a Motion No.

KTH/FT/230M/18 order the Judge and Members of USC No.2 Funtua to execute the judgment it delivered within one week from the day the order was issued on the 22nd November, 2018. Going by the above, there was never a time when this Court sit in respect of the case filed and determined by the Upper Sharia Court No.2 Funtua.

It is the humble view of this Court that assuming supervisory jurisdiction by this Court does not mean to rob another Court of competent jurisdiction its own jurisdiction.” Secondly, at page 76 of the Record of Appeal, that: “The Claimant’s in this suit is by way of inter-pleader proceedings is urging this Court to descend and interfere with the execution of the judgment of Upper Sharia Court No. 2 Funtua in an application he ought to have file before the lower Court which this Court can only decide on its appellate jurisdiction which will be neater, tidier and better in the interest of justice.

In view of the above, this Court declined jurisdiction and resolve in favour of the 1st and 3rd defendants. The suit is hereby struck-out for want of jurisdiction.” Dissatisfied with the decision/ruling, the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 13-08-2020. The relevant processes for the appeal are as follows:- 1. “Appellant’s brief of argument which was filed on 9/09/2020, it is settled by Lawal Amah Esq. 2. 1st and 3rd Respondents’ brief of argument together with Notice of Preliminary Objection filed on 7/10/2020.

It is settled by Lawal Ahmadu Funtua Esq.

3. Appellant’s reply brief filed on 28/10/2020. It is settled by Lawal Amah Esq.”

The Preliminary Objection The grounds and the arguments of the learned counsel for the 1st and 3rd Respondents can be summarised from his Notice of Preliminary Objection as follows: 1. “That ground one and two of the notice of appeal as contained at pages 77 – 78 of the record of appeal are grounds of fact or at most mixed law and fact that same are hereby incompetent as the leave of the lower Court nor this Honourable Court was not sought before the said Notice of Appeal was filed. 2. That the argument canvassed on these two grounds is incompetent. 3.

Pursuant to the two issues above in paragraphs 1 and 2 and by virtue of Section 241 (1) and 242 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) with Fourth Alteration 2018. Leave of the lower Court or Court of Appeal ought to have been sought and obtained before filing of ground of mixed law and fact. 4. The representation of the counsel to the appellant is against the provision of Section 19(5) of the Rules of Professional Conduct for Legal Practitioners 2007.”

In his reply brief, learned counsel for the Appellant responded to the Respondents’ Preliminary Objection and submitted that the Preliminary Objection is misconceived and incompetent. That the learned counsel to the Respondent failed to appreciate that the Appellant’s grounds of appeal are issues of hard law both hinged on Section 272(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). And, that being the case, the Appellant is covered by the provision of Section 241 (1)(a) and (b) of the said Constitution.

The Appellant said counsel does not require any leave to file the grounds of appeal. He referred to the case of Onah v. Messers Maduka Ent. Mgt Ltd (2007) All FWLR (Pt. 347) 759 at 765 and submitted that the two grounds of appeal are questioning the trial Court’s interpretation of Section 272(2) of the 1999 Constitution of the Federal Republic of Nigeria as amended. He added that this makes the two grounds of appeal grounds of law by virtue of Section 241(1)(b) of the Constitution.

On the issue of Rule 19(5) of the Rules of Professional Conduct for Legal Practitioners, he submitted that the fact that he appeared for the 2nd Respondent at the lower Court and the case was determined ends his contract with the 2nd Respondent. Moreover, that counsel to the 1st and 3rd Respondents cannot accuse him (Appellant’s) counsel of infamous conduct as the 2nd Respondent whom he represented has not complained. He urged us to overrule the Respondents’ Preliminary Objection.

For ease of reference Appellant’s grounds 1 and 2 of the Notice of Appeal together with their particulars are reproduced below: “GROUNDS OF APPEAL GROUND 1 Error in law The learned trial Judge erred in law when he decline jurisdiction to entertain the originating summons before him. Particulars of Error a. The provision of Section 272(2) of the 1999 Constitution as amended confers jurisdiction on his lordship to entertain the originating summons.

GROUND 2 The learned trial Judge erred in law by holding as follows:- “….it is the humble view of this Court that assuming supervisory jurisdiction by this Court doesn’t mean to rob another Court of competent jurisdiction its own jurisdiction, because jurisdiction is the limits imposed on the power of a validly constituted Court…..” Particulars of Error a. The provision of Section 272(2) of the 1999 Constitution as amended are explicitly clear as it does not oust a Court of its jurisdiction. b.

The originating summons being an interpleader proceedings, the Court has the jurisdiction to entertain same. c. The fact that the case does not originate from the High Court, it does not oust the Court of jurisdiction to entertain it.” These grounds are clearly grounds of law and not of mixed law and facts as suggested by the learned counsel for the Respondents.

That being the case, the Appellant’s grounds of appeal are covered by the provision of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as ground of law which are appealable as of right and do not require any leave of Court.

The allegation of breach of the provision of Rule 19(5) of the Rules of Professional Conduct by the learned counsel for the Respondents as against the learned counsel for the Appellant cannot be countenanced as the content of Rule 19(5) of the Rules of Professional Conduct require affidavit evidence and not mere ipse dixit allegation and would have been better presented before the Legal Practitioners Disciplinary Committee. For these reasons, the Respondent’s Preliminary Objection is devoid of merit and it is accordingly overruled.

THE MAIN APPEAL Learned counsel for the Appellant nominated one issue for determination of the appeal. It is: “Whether the learned trial Judge was right to have declined jurisdiction, having regard to the provisions of Section 272(2) of the 1999 Constitution as amended.” Learned counsel for the 1st and 3rd Respondents adopted the Appellant’s sole issue for the determination of the appeal.

Learned counsel for the Appellant submitted on the sole issue that by the provision of Section 272(2) of the 1999 Constitution (as amended), the lower Court has the requisite jurisdiction to entertain the suit. He submitted that the originating summons method of instituting an action at the lower Court was provided for under Order 3 Rule 1 of the Katsina State High Court (Civil Procedure) Rules 2007. He reasoned that the property of the Appellant who was not named in the writ of execution was attached in execution of the judgment in proceedings of which the Appellant was not a party.

Appellant’s counsel submitted that it is erroneous for the learned trial Judge to hold that assuming jurisdiction in the Appellant’s case before him amounts to robbing another Court of its own jurisdiction. Moreso, he submitted that the interpleader proceedings are separate and therefore clothes the lower Court with jurisdiction to entertain it. He urged us to resolve the sole issue in favour of the Appellant.

On the sole issue, learned counsel for the Respondents submitted that the adjudicatory power/jurisdiction conferred on the High Court of a State by Section 272(2) of the Constitution of the Federal Republic of Nigeria (as amended) even though unlimited is not at large especially in this situation where a sale of a house was conducted by the Upper Sharia Court No.2 Funtua. He submitted that any interpleader proceedings in respect of such sale shall be filed before the Upper Sharia Court No. 2 Funtua as the original jurisdiction of the lower Court is circumscribed.

For this, he referred to the provision of Order 21 Rule 1 of the Sharia Courts (Civil Procedure) Rules 2008 of Katsina State which he said is in pari materia with Order VI Rule 9 Judgment (Enforcement) Rules, Rules of Court under Section 94 of the Sheriffs and Civil Process Act, Cap 56 LFN 2004.

The rule states: “Any person who claims that any property, whether movable or immovable, which has been attached is not liable to be sold in execution of a judgment debtor, may apply to the Court which issued the writ of attachment and sale for the issue of a summons calling upon the judgment creditor to appear before the Court on a date and at hour specified in the summons to show cause why the property should not be released from the attachment.” Learned counsel for the Respondents submitted that the sale of the property was conducted by the Upper Sharia Court No. 2 Funtua, and therefore the lower Court has only appellate, review or supervisory jurisdiction under Section 272(2) of the Constitution and does not have original jurisdiction to entertain interpleaders summons on a property disposed by the Upper Sharia Court No. 2 Funtua.

He submitted that the lower Court was right when it held that the Appellant ought to have filed his application before the Upper Sharia Court No. 2 where the purported sale and attachment was conducted. That the High Court can only adjudicate in its appellate or supervisory jurisdiction and that the lower Court was right to have declined jurisdiction in the matter.

Learned counsel for the Respondent further referred to the provision of Order VI Rule 9 Judgment (Enforcement) Rules, Rules of Court under Section 94 of the Sheriffs and Civil Process Act, Cap 56 LFN 2004 which states that: “Where the summons relate to any immovable property and the parties thereto other than the Sheriff are all parties ordinarily subject to the jurisdiction of a customary or area Court, the Court shall on the return day of the summons adjourn the hearing and stay execution for one month to enable the claimant to institute proceedings in the competent customary or area Court to establish as against the judgment creditor or plaintiff and debtor or defendant the right, title or interest on which his claim to have the property released from attachment is based.”

He reiterated that the provision of Section 272(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is applicable only by way of appeal or supervisory jurisdiction but not original jurisdiction against the proceedings of the Upper Sharia Court No.2 Funtua. He concluded that interpleader proceedings are to be instituted in the Court where the execution, sale and attachment were conducted and the lower Court cannot entertain cases by its original jurisdiction where the action held at other Courts but by appeal or under supervisory powers.

He urged us to resolve the sole issue in favour of the 1st and 3rd Respondents. Resolution of Sole Issue: The sole question in this appeal involves an interpretation of the provisions of Section 272(1) and (2) which deal with the jurisdiction of the High Court of a State, the meaning and procedural requirements of interpleaders.

Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reads: “272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. (2) The reference to civil and criminal proceedings in this Section include a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.” Furthermore, and in relation to this appeal, the 8th Edition of the Black’s Law Dictionary at page 837 gives a relevant meaning of interplead as (1) (of a claimant) to assert one’s own claim regarding property or an issue already before the Court.

In the instant case, the Appellant was indeed not a party to the claims between the 1st and 3rd Respondents as Judgment Creditor and Judgment Debtor respectively which was determined to the stage of attachment, execution and sale by the Upper Area Court No.2 Funtua. It is therefore that same Court, that is the Upper Area Court No. 2 Funtua that possesses the original jurisdiction to entertain interpleader’s proceedings in relation to the suit settled by it between the 1st and 3rd Respondents.

As pointed out by the lower Court and rightly too by the learned counsel to the Respondents the lower Court can only entertain appellate and/or supervisory jurisdiction on the interpleader’s proceedings of the Appellant since it is only the Upper Area Court No. 2 that retains original jurisdiction to entertain such interpleader’s summons.

The belief of the learned counsel for the Appellant that the High Court, that is the lower Court can entertain the interpleader’s intervention by dint of the fact that any originating summons could be filed in the lower Court is procedurally limited by the fact that an interpleader’s proceedings would only be entertained by the Court that adjudicated on the main or substantive proceeding which brought about the interpleader’s intervention.

In the instant case therefore, the original jurisdiction of the lower Court under Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not extend to interpleader’s application of suits or cases that were determined by the Upper Sharia Court.

Learned counsel for the Respondents rightly supported his arguments with the provision of Order 21 Rule 1 of the Sharia (Civil Procedure) Rules 2008 of Katsina State which is in pari materia with the provision of Order VI Rule 9 Judgment (Enforcement) Rules, Rules of Court, under Section 94 of the Sheriffs and Civil Process Act Cap 56 LFN 2004.

The provision states thus: “Any person who claims that any property, whether movable or immovable, which has been attached is not liable to be sold in execution of a judgment debtor, may apply to the Court which issued the writ of attachment and sale for the issue of a summons calling upon the Judgment creditor to appear before the Court on a date and at hour specified in the summons to show cause why the property should not be released from the attachment.” In the circumstance, the learned trial Judge was right to have held at page 76 of the records that: “The claimant in this suit is by way of interpleader proceedings is urging this Court to descend and interfere with the execution of the judgment of Upper Sharia Court No. 2 Funtua in an application he ought to have file (sic) filed before the lower Court which this Court can only decide on its appellate jurisdiction which will be neater, tidier and better in the interest of justice.

In view of the above, this Court declined jurisdiction and resolve in favour of the 1st and 3rd defendants. The suit is hereby struck out for want of jurisdiction.” The only issue in this appeal is resolved against the Appellant. This appeal lacks merit and it is accordingly dismissed. N30,000 costs is awarded to the 1st and 3rd Respondents.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother, Mojeed A. Owoade, JCA and I agree with his reasoning and conclusion that the appeal lacks merit. I too dismiss the appeal for lacking in merit and abide by the order as to cost.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MOJEED A. OWOADE, JCA. I entirely agree with the reasoning and conclusion reached to the effect that there is no merit in the appeal and it is liable to be dismissed. I also dismiss the appeal. I abide by the order as to cost.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The National Industrial Court of Nigeria Per Sanusi Kado, J., delivered a judgment on 25th October, 2019 in suit number: NICN/ABJ/31/2016 wherein the learned trial Judge entered judgment in favour of the 1st and 2nd Respondents. The 1st and 2nd Respondents herein at the trial Court instituted the action by an Originating Summons filed on 27th January, 2016.

By an order of Court that pleadings be filed, the 1st and 2nd Respondents converted the Originating Summons into a Complaint wherein they sought inter alia; an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted, etc. ​The 1st and 2nd Respondents also filed a motion for interlocutory injunction to restrain the Appellant from holding a National Delegates Conference and from conducting an election into executive positions of the Appellant at the said conference as the same will allegedly render the judgment of the Court when delivered nugatory.

The Court ordered that no party should do anything to affect or jeopardize the hearing and determination of the application. The Appellant with some of her executives in disobedience to the Court order on 25th and 26th January, 2018; conducted a National Delegates conference wherein it conducted elections and appointed new executives for the Appellant and amended the constitution of the Appellant.

Subsequently, the Court on 6th February, 2018 delivered its ruling which restrained the Appellant from holding the National Delegates Conference and from conducting elections pending the determination of the substantive suit. Meaning, the Appellant having already held the National Delegates Conference and elected new executives rendered the ruling of the trial Court on the interlocutory application nugatory.

Aggrieved by this act of the Appellant, the 1st and 2nd Respondents brought an application seeking for an order nullifying the election of the Appellant and a committal order against the Appellant. Consequently, the learned trial Judge nullified the Delegates Conference and election of the Appellant held while there was a subsisting valid Court Order and ordered for summons to be issued against the president of the Appellant to appear before the Court to show cause why he should not be sanctioned by the Court for disobedience of a Court order.

The Appellant and his President filed an Interlocutory appeal with Appeal number CA/A/1131/2018 against the said Court ruling delivered on 1st November, 2018, through a law firm led by Anthony Idikwu Ebah Esq. The trial Court delivered its judgment on 25th October, 2019 and held as follows: “…From the foregoing, as it is, and for the reasons given the Claimants have succeeded only in part and failed in some part of their claims. For proper appreciation and clarity, the orders of the Court are as follows: 1.

An order is hereby granted nullifying the expulsion of the 1st Claimant from the 2nd Defendant. 2. An order is hereby granted reinstating the 1st Claimant back to the membership of the 2nd Defendant with all the rights and privileges of a member. 3. Reliefs 3, 4, 5, 7 and 8 are hereby refused and same dismissed for lack of proof. 4.

An order is hereby made for the 3rd Defendant not to recognize and register any amendment of the Constitution of the 2nd Defendant or order to allow any amendment of the 2nd Defendant’s Constitution in order to allow any official of the 2nd Defendant to continue to act for the 2nd Defendant after his or her due retirement from the Civil Service of Nigeria, whether State or Federal The case file is hereby returned to the honourable president of the Court for appointment of Public Trustee in line with Order 59 of the Rules of this Court. Judgment is entered accordingly.

I make no order as to cost.” Dissatisfied with the judgment of the trial Court, the Appellant approached this Court via an amended Notice of Appeal dated 10th March, 2021 and filed on the same date but deemed properly filed and served on 26th March, 2021. The learned Counsel on both sides filed relevant processes as required by the rules of the Court, the Appeal was then heard on 2nd December, 2021. Olumide Philips, Esq., appeared with I. D. Bob Manuel Esq., for the Appellant. Chinyere Moneme, Esq., appeared with Mukeng Nathan, Esq., for the 1st Respondent.

Mohammed Ndarani Mohammed, SAN appeared with Michael Eleyinmi, Esq., Clement Chukwuemeka Esq., Stephen Apeh Esq., Uchenna Chukwuemeka, Esq., and Raphael Ashwe Esq., for the 2nd Respondent. The 3rd Respondent was not represented. The Appellant applied to withdraw the appeal against the 3rd Respondent, it was granted. The name of the 3rd Respondent was accordingly struck out and the 4th Respondent became the 3rd Respondent. Paul Kasim Esq., appeared with Daniel Akinwole Esq., for the 4th Respondent, now the 3rd Respondent. The appeal was then argued.

Olumide Philips, Esq., for the Appellant adopted and relied on the Appellant’s brief of argument field on 10th March, 2021 but deemed properly filed and served on 26th March, 2021 in praying the Court to allow the appeal. The Appellant donated 4 issues for determination to wit: 1.

“Having regard to the combined provisions of Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, whether the Court below breached the Appellant’s fundamental right to fair hearing when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile Counsel was not a qualified legal practitioner. 2. “Whether the lower Court was clothed with the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the appellant, subject of a pending Appeal in Appeal No.

CA/A/1131/2018 touching on the same issue?” 3. “Having regard to the facts and law, whether the lower Court has the power to grant a consequential order not arising from the principal claims before it?” 4.

“Whether the lower Court was right to base its decision to order for the appointment of a Public Trustee to oversee the administration and finances of the Appellant on the provisions of Section 19 of the National Industrial Court Act, 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 rather than Section 19(1) and (2) of the Trade Union Act, a specific statute governing trade union activities? Chinyere Moneme, Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief filed on 16th June, 2021 in urging the Court to dismiss the appeal.

The 1st Respondent formulated 4 issues for determination as follows: 1. Whether a defendant who neglected to take advantage of ample opportunities given to it by a Court to open its case and lead evidence in support of its pleadings can turn around to complain that it has been denied the right to fair hearing because his application to reopen his case on the mere assertion that his lawyer was a fake lawyer was refused? 2.

Whether reference in the final judgment of a Court to the legal effect of its interlocutory order made in same suit to restore the parties to the status quo ante lite means that the Court has sat on appeal in respect the said order and whether the mere entry of an appeal against that interlocutory order operates as a stay of proceedings? 3.

Whether Section 19 of the National Industrial Court Act, 2006, Order 59 Rule 1 of the National Industrial Court Rules 2017, and the inherent jurisdiction of Courts under the 1999 Constitution (3rd Alteration Amendment) imbues the National Industrial Court with power to suo motu appoint a public trustee in an intra-union dispute before it and whether the said power of the National Industrial Court can be exercised to do substantial justice between the parties? 4.

Whether there is a conflict between the provisions of Section 19(1) and (2) of the Trade Unions Act and the provisions of Section 19 of the National Industrial Court Act 2006 & Order 59 of the National Industrial Court (Civil Procedure) Rules 2017 and whether the lower Court was right to base its decision to appoint a trustee to oversee the administration and finances of the Appellant on Section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court (Civil Procedure) Rules 2017.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent adopted and relied on the 2nd Respondent’s Brief filed on 24th June, 2021 in urging the Court to dismiss the appeal. The 2nd Respondent submitted 4 issues for determination to wit: 1. Whether from the circumstances of this case and conduct of the Appellant at the trial Court, it can be rightly concluded that the applicant was not accorded fair hearing by the trial Court. 2.

Whether from the circumstances of this case, it can be validly concluded that the trial Court based its judgment on a ruling which is subject to appeal in Appeal No: CA/A/1131/2018, and thus occasioned a grave miscarriage of justice, putting into consideration the prayers of the Claimants in their complaint and the fact that the said Appeal No: CA/A/1131/2018, which is interlocutory was filed by a lawyer alleged to be fake by the appellant at the trial Court. 3.

Whether the consequential order made by the trial Court in this case by way of appointment of a Public Trustee to manage the administration and affairs of the Applicant as ordered by the trial Court in the face of the emptiness in the leadership of the Appellant, does not flow from the principal claims of the Claimants in their Complaint, putting into consideration the reliefs of the Claimants, the circumstances of the case, visa vis the provisions of Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the Inherent jurisdiction of the Court to do justice at all times. 4.

Whether the appointment of a Public Trustee by the President of the National Industrial Court pursuant to Section 19 of the National Industrial Court Act 2006 and Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 has occasioned miscarriage of justice to the Appellant and also in conflict with Section 19(1) & (2) of the Trade Union Act. Paul Kasim Esq., for the 3rd Respondent adopted and relied on the 3rd Respondent’s Brief filed on 17th June, 2021 in urging the Court to allow the appeal. The 3rd Respondent submitted 3 issues for determination to wit: 1.

Whether the lower Court below breached the Appellant’s constitutional right of fair hearing entrenched in Section 36(1) of the 1999 Constitution when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile counsel was not a qualified legal practitioner? 2. Whether the lower Court was clothed with the requisite jurisdiction to make the consequential orders for the holding of a fresh National Delegates Conference for the Appellant, an issue that is the subject of a pending Appeal in Appeal No. CA/A/1131/2018. 3.

Whether having regard to the facts of this case, the provision of National Industrial Court Act and Rule of National Industrial Court, relied on by the lower Court, the lower Court was right in granting the consequential orders appointing a public trustee to manage the finance and affairs of the Appellant and conduct a fresh National Delegates Conference for the Appellant, a relief not arising from the principal claim, before it? From the grounds of appeal, I view that the four issues submitted by the Appellant being the initiator of the appeal will satisfactorily determine this appeal.

I shall proceed to determine the appeal based on the said 4 issues.

SUBMISSIONS ON ISSUE 1 “Having regard to the combined provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, whether the Court below breached the Appellant’s fundamental right to fair hearing when it refused the Appellant leave to reopen its defence despite being informed that its erstwhile counsel was not a qualified legal practitioner?” Olumide Philips, Esq., on this issue submitted that a Court is obligated to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel and that the sins of counsel should not be visited on the litigant.

He relied on OSINUPEBI V. SAIBU (1982) 7 SC 104; DOHERTY V. DOHERTY [1964] 1 ALL NLR 299; AHMADU V. SALAWU [1974] 11 SC 43; BOWAJE V. ADEDIWURA (1976) 6 SC 143; IROEGBU V. OKWORDU (1990) 6 NWLR (PT. 159) 643 AT 669B-F; OTAPO V. SUNMONU [1987] 2 NWLR (PT.58) 587; LONG JOHN V. BLAKK (1998) 5 S.C.N.J 81; MUFUTAU AKINPELU V. EBUNOLA ADEGBORE [2008] 10 NWLR (PART 1096) 531, 555 F-G.

He submitted that the trial Court breached the Appellant’s right to fair hearing when it refused to allow the Appellant’s re-open their case and enter proper defence even after informing the Court that its lawyer was fake. He cited CHUKWU V. OMEHIA [2013] 7 NWLR (PT. 1354) PG. 463, 479D AND N.I.W.A. V. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIAN LTD. [2008] 13 NWLR (PT. 1103) 48.

The learned counsel also contended that the ruling of the trial Court granting leave to the Appellants to file further affidavit and written address in support of the motion to reopen Appellant’s case amounts to the Court agreeing with the Appellant and therefore cannot turn around to hold otherwise. ​ Olumide Philips, Esq., submitted that the application to re-open Appellant’s defence below was brought in good faith to ensure that the Appellant was heard in the matter and its defence properly placed before the Court to be decided on its merits and thus should be granted, unless it can be shown to have been filed malafide or when it will cause injustice to the other party.

He relied on NWANKWO V. NWANKWO [1993] 6. S.C.N.184 and urged the Court to resolve the issue in favour of the Appellants and allow the appeal. Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the right to grant an application to re-open a case is at the discretion of the Court and that the key consideration which guides the Court in the exercise of the discretion is that a new issue has arisen which no human ingenuity could have foreseen before the case was adjourned for judgment. He relied on OGBODU V. STATE [1987] 2 NWLR (PT 54) 20; FATOLA V.

MUSTAPHA [1985] 2 NWLR (PT. 7) 438. The learned counsel further submitted that no cogent facts were presented before the lower Court to justify the exercise of the discretion sought by the Appellant and thus, there was no breach of any right to fair hearing. She relied on OKIKE V. LPDC [2006] 1 NWLR (PT. 960) 67 and urged the Court to resolve the issue in favour of the Respondent and dismiss the appeal.

Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue contended that the Appellant and the 4th Respondent who by their conduct waived their right of defence cannot be heard complaining of fair hearing. He submitted that the right to fair hearing is not a one-way traffic. It should be open and accessible to both parties. He relied on SECURITIES AND EXCHANGE COMMISSION & ORS V. OKEKE (2020) 38 W.R.N AT PAGE 119 PARTICULARLY AT PAGE 126 RATIO 5; THE COUNCIL, FEDERAL POLYTECHNIC OKO V. CHUKWUDI UBA (2019) 17 ACELR; AYOOLA V EGEYALO (2018) LPELR-44084 (CA); EZE V.

FRN (2017), LPELR-42097 (SC);MR. JOHN OKON V. PASCAL ADIGWE & ORS (2011), 12 NWLR (PART 1270) 350 AT 374; UBA PLC V. JASE MOTORS (NIG) LTD & ANOR (1997) 7 NWLR (PT. 513) 387 AT 402-403.

The learned senior counsel submitted that the Appellant at the trial Court explored every strategy to delay the proceedings until it was apparent that there was no more room to buy any more time, he decided to abandon the suit even when despite being fully aware of the hearing date, leading to the foreclosure of their defence. ​ The learned SAN finally submitted that the Appellant was given ample opportunity to defend his case but refused to utilize the opportunity, thus, there was no breach of fair hearing.

He urged the Court to resolve the issue in favour of the Respondent and dismiss the Appeal. Paul Kasim Esq., for the 3rd Respondent in response to the issue aligned himself with the position of the Appellant and submitted that the lower Court erred in refusing the Appellant and the 3rd Respondent right to be heard. He submitted that the Appellant and the 3rd Respondent were foreclosed from defence without their knowledge thereby breaching their right to fair hearing. He relied on EKIYOR & ANOR V. BOMOR (1997) LPELR-1082 (SC); OLATUNBOSUN V.

NISER (1988) 3 NWLR PT. 80, P.25 AT 49; AG RIVERS STATE V. UDE (2006) LPELR-626 (SC); SECTION 36(1) OF THE 1999 CONSTITUTION. The learned counsel contended that the Appellant in this case should not be held responsible for a mistake of his former counsel. He relied on NOGA HOTELS INT’L V. NICON HOTELS LTD. (2007) VOL. 41 WRN 125 AT 153, LINES 20-45 (CA). Paul Kasim Esq., contended that though the trial Court has a discretionary power to either grant or refuse an application such as the instant one, such discretion however must be exercised judicially and judiciously.

He relied on UNITED BANK OFAFRICA V G.M.B.LI & CO.; ANACHEBE V. IJEOMA & ORS (2014) LPELR -23181 (SC). He finally submitted that any Judgment given in breach of the principle of fair hearing is a nullity, of no effect and will be set aside by the Court that gave it or by an appellate Court. He relied on ATTORNEY GENERAL, RIVERS STATE V UDE (2006) LPELR- 626 (SC); ARIJE V. ARIJE & ORS (2018) LPELR-44193 (SC) and urged this Court to allow the appeal and set aside the decision of the trial Court.

RESOLUTION OF ISSUE 1 Fair hearing is a cardinal principle of justice which demands that a party must be heard before the case against him is determined. See ESABUNOR & ANOR V. FAWEYA & ORS (2019) LPELR-46961 (SC); SULE & ORS V. ORISAJIMI (2019) LPELR-47039 (SC); SECTION 36 OF THE 1999 CONSTITUTION (AS AMENDED). A party has a choice in the mode and manner of conducting the prosecution and or defence in a suit. What is paramount is that the Court must have afforded all parties equal opportunity to present or defend their cases.

Therefore, if a party had an opportunity of being heard but did not utilize it, he cannot complain of breach of fair hearing. See AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR-46414 (SC). The question of fair hearing is not just an issue of dogma. Fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. Therefore, whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case.

It is wrong and improper to approach the meaning of fair hearing by placing reliance on any prior assumptions. The simple approach is to look at the totality of the proceedings before the Court and then form an opinion on objective standards whether or not an equal opportunity has been afforded the parties. The Court has two competing interests to contend with when considering an application such as this. The need to dispose of the case speedily vis-a-vis the right of both parties to be heard on the matter.

These two great interests have often been expressed with the fact that justice delayed is justice denied and at the same time you cannot sacrifice justice on the altar of speed. Therefore, the Court must of a necessity negotiate a balance between the two competing interests while being guided by the need to do substantial justice. ​ Herein, from the record of proceedings before this Court, it is notable that series of adjournments were taken during the hearing at the trial Court.

Noteworthy, on 10th October, 2017, the counsel for the Appellant at the trial Court sought for an adjournment to make available documents which he allegedly needed to conduct a cross-examination on the CW1. The said adjournment was granted by the trial Court. See pages 958-959 of the Record of Appeal. Again, on 1st of November, 2017, the counsel for the Appellant asked for an adjournment to enable the learned SAN to appear and conduct the cross-examination of the CW1 in person. This again was granted. See page 959 of the Record of Appeal.

On 17th July, 2018, the Appellants sought for a date to enable them open their defence. It was granted and the Court adjourned to 1st November, 2018 for defence. On 1st November, 2018, counsel again asked for a date to enable the lead counsel to appear and lead the defence himself. It was again granted. See page 968 of the Record of Appeal. On the adjourned date which was 12th December, 2018, the Appellant instead of opening his defence filed a preliminary objection challenging the jurisdiction of the Court. The objection was not successful.

On 11th February 2019, when the matter came up again for defence, the Appellant was not in Court. The Respondents then sought by an application for foreclosure and the same was granted. The Court adjourned for final written addresses and the Court ordered that hearing notice to that effect be served on the Appellant. On 3rd April 2019, when the matter came up for adoption of final written addresses, the Appellant was represented and did not pray anything from the Court, not even to reopen defence. The Respondents adopted their final written address and the matter was adjourned for judgment.

On 1st July, 2019 when the matter came up for judgment, the Appellant brought an application to reopen his defence on the ground that the lawyer who had been appearing for the Appellant is a fake lawyer, which application was refused. It is pertinent to state herein that the grant or refusal of an application to reopen a case is entirely at the Court’s discretion. However, in exercising that discretion, the Court must confine itself to the reason for the particular application.

I have carefully perused the record of appeal before me, particularly the proceedings of the said trial Court as briefly itemized above, the trial Court afforded both parties equal opportunities to present their sides of the case. Therefore, I see no breach of fair hearing as the Appellant was afforded the opportunity to present her case but failed to utilize the same.

Now, on the argument that the former counsel is a fake lawyer, the allegation that a lawyer who has filed legal documents before a Court of law and appeared severally before a Court as a lawyer is not a lawyer is a criminal allegation. It is impersonation and is criminal in nature. It is settled in law beyond argument that criminal allegations must be proved beyond reasonable doubt. See EHIMIYEIN V. STATE (2016) LPELR 40841 (SC). Therefore, impersonation being criminal in nature must be proved beyond reasonable doubt. See EMEKA V. IGP (2021) 10 NWLR (PT. 1785) 489 (SC).

It is not the duty of the Court to embark on a voyage of discovery as to whether or not the said Appellant’s former counsel is a fake lawyer as it is settled in law that he who asserts, must prove.

It is worthy to note that from the record of proceedings before this Court, the Appellant did not place any evidence before the Court to suggest let alone proof that the said lawyer, Mr. Anthony Idikwu Ebah is a fake lawyer. The Appellant has relied on the argument that his former counsel is fake to pin his indulgence to be inadvertence of counsel.

I quite agree as it is settled that the inadvertence of counsel cannot be visited on the litigant. See RASAKI V. AJIJOLA (2018) 7 NWLR (PT. 1617) 13 (SC). However, it is pertinent to distinguish inadvertence of counsel from the ineptitude of counsel. Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. See MALARI V. LEIGH (2019) 3 NWLR (PT. 1659) 332 (SC); G.T.B. V. EST MASTER CONSTR. LTD. (2018) 8 NWLR (PT. 1622) 483 (SC); N.N.P.C. V.

SAMFADEKSONS LTD. (2018) 7 NWLR (PT. 1617) 1 (SC); ORE V. AKANBI (2021) 14 NWLR (PT. 1795) 1 (CA). The burden of proving inadvertence of counsel lies on the applicant. He has to prove the existence of such inadvertence of counsel. See N.N.P.C. V. SAMFADEKSONS LTD (2018) 7 NWLR (PT. 1617) 1 (SC); SECTIONS 132 AND 133 OF THE EVIDENCE ACT, 2011.

Thus, where there has been a failure of strategy or tactic on the part of the counsel, as in the instant case, the litigant cannot escape such blunders committed by his counsel, for if the strategy had worked, both the counsel and his client would take full credit. Flowing from the above, it is my view and I so hold that the Appellant has failed to prove that his failure to enter defence was as a result of the inadvertence of his counsel. He has also failed to prove that his former counsel was a fake lawyer. I hold that his right to fair hearing was not breached.

I resolve the issue in favour of the 1st and 2nd Respondents. SUBMISSIONS ON ISSUE 2 “Whether the lower Court was clothed with the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the appellant, subject of a pending Appeal in Appeal No. CA/A/1131/2018 touching on the same issue?” Olumide Philips, Esq., on this issue submitted that once an appeal is entered at an appellate Court, the trial Court from which the appeal emanated will cease to have jurisdiction over any issue or subject matter of the appeal. ​ He relied on ADENIYI V.

ONAGORUWA [1994] 4 NWLR (PT.349) 225, ADELEKE V. OYO STATE HOUSE OF ASSEMBLY [2006] 10 NWLR (1987) 50; MOHAMMED V. OLAWUNMI [1993] 4 NWLR (PT. 287) 254 AT 278 D -E & H; OGUNREMI & ANOR. V. DADA [1962] 1 ALL NLR 663; EZEOKAFOR V. EZEILO [1999] 9 NWLR (PT. 619) 513 AT 524 E-F. The learned counsel submitted that the lower Court violated the above principle of law by ordering that a fresh national delegates conference be held for the Appellant despite the pendency of Appeal No. CA/A/1131/2018 on the issue.

The essence of the principle is to ensure that the judgment of the appellate Court is not rendered a fait accompli, leaving the victorious party to celebrate a mere empty and Pyrrhic victory. He CITED KIGO (NIG) LTD V. HOLMAN BROTHERS (NIG) LTD [1980] 5-7 SC 60; WAMI AKAIDE & 2 ORS V. THE STATE [1996] 8 NWLR (PT. 463) 525. Olumide Philips, Esq., further submitted that once a trial Court is aware that an appeal has been entered on a matter, it is precluded from going ahead to pass sentence on either party before it. He relied on Mohammed v.

Olawunmi [1993] 4 N.W.L.R (Pt. 287) 254 AT 281 F-H and urged the Court to resolve the issue in favour of the Appellant and against the Respondents. Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that the consequential order was an attempt by the trial Court to protect itself from abuse from parties who hold its processes in contempt and who would disobey orders of the Court in order to cling on to power. See EZENWANKWO V STATE (2015) 2 NWLR (PT.1443) P279. PARA B.

She submitted that the trial Court did not base its judgment on the subject matter of the subsisting interlocutory appeal and urged the Court to resolve the issue in favour of the Respondents. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue submitted that the said Appeal No: CA/A/1131/2018 on which subject matter the trial Court purportedly based its decision was filed by the same lawyer who the Appellant alleged to be a fake lawyer.

He further submitted that going by the principle that a legal process filed by a non-lawyer is a worthless piece of paper, the argument that the decision of the Court is invalid by reason of the subsisting appeal is illogical as the said appeal is incompetent by reason of the same being filed by a fake lawyer. He cited SECTION 2 AND 3 (1) (A AND B) OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS ACT LFN 2007, AJIBODE V. GBADAMOSI (2021) 7 NWLR PT. 1776, PG. 475 PARTICULARLY AT PAGE 482; OWNERS OF MV “ARABELLA” V. NAIC (2008) 11 NWLR (PT. 1097) 182.

Mohammed Ndarani Mohammed, SAN finally submitted that from the circumstances of this case, it cannot be said that the trial Court based its judgment on a ruling which is subject of appeal in APPEAL NO: CA/A/1131/2018, and thus occasioned a grave miscarriage of justice since the said appeal was filed by an alleged fake lawyer. Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that once an appeal has been entered in the Court of Appeal, the Court below ceases to have jurisdiction over the entire subject matter.

Thus, the lower Court would lack jurisdiction in the matter until the appeal is heard and determined, the purpose of which is to avoid collusion between a trial Court and an Appellate Court over the same matter. He cited SPDC NIGERIA LIMITED V. AMADI & ORS (2011) LPELR – 3204 (SC); AKINYEMI V. SOYANWO (2006) 13 NWLR (PT. 998) 496 AT PP. 514-515 PARA. G- E; BRAITHWAITE V. S.C.B (NIG) LTD (2012) 9 NWLR (PT. 1305) 304. SEE ALSO MOHAMMED V. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT. P. 278, PARAS D-E, AND H; ADENIYI V. ONAGORUWA. He urged the Court to allow the appeal.

RESOLUTION OF ISSUE 2 Jurisdiction is the authority a Court has to decide matters or to take cognizance of matters presented before it. It is fundamental and can be raised at any time. See SOLUMADE V. KUTI (2022) 1 NWLR (PT. 1810) 31 (SC), BAKARI V. OGUNDIPE (2021) 5 NWLR (PT.1768) 1 (SC), BELGORE V. F.R.N (2021) 3 NWLR (PT.1764) 503 (SC), SULAIMAN V. F.R.N. (2020) 18 NWLR (PT. 1755) (SC), PRICE WATER HOUSE V. MOMOH (2020) 18 NWLR (PT. 1755) 32 (CA); SHITTA-BEY V. A.-G., FED. (1998) 10 NWLR (PT. 570) 392 REFERRED TO. (P. 199, PARAS.

F-G). ​Every Court is endowed with jurisdiction by Statute or Constitution and where a Court exercises jurisdiction in a matter which it does not have jurisdiction, the decision from such an exercise is a nullity. See MUYIDEEN V. N.B.A. (2021) 13 NWLR (PT. 1794) 393 (SC); BOT V. JOS ELECTRICITY DISTRIBUTION PLC (2021) 15 NWLR (PT. 1798) 53 (SC); IHIM V. MADUAGWU (2021) 5 NWLR (PT. 1770) 584 (SC); T.C.N., P.H.C.N. V. A.S.B.I.R. (2021) 1 NWLR (Pt. 1757) 207 (CA).

Once a Court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because absence of jurisdiction is irreparable in law. See MADUKOLU V. NKEMDILIM (2006) 2 LC 2081961) NSCC (VOL. 2) 374 AT 379; TUKUR V. TARABA STATE (1997) 6 SCNJ 81. The principle of law that where an appeal has been entered, by which act the record of appeal compiled in the lower Court is transmitted to the registry of the Court of appeal, the trial Court is functus officio and ceases to have any control over the matter in question; is settled in law. See MEKWUNYE V.

CARNATION REGISTRARS LTD. (2020) (CA). Therefore, the Court of appeal only becomes seised of the whole proceedings in a case after an appeal has been entered and until the appeal has been finally disposed of. Once the record of appeal is before the Court of appeal and the appeal is listed, it is at that stage considered entered and the Court of appeal assumes exclusive jurisdiction over it. See A.P.C. V. UDUJI (2020) 2 NWLR (PT. 1709) 541 (SC); VAB PETROLEUM INC. V. MOMAH (2013) 14 NWLR (PT. 1374) 284 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA).

Herein, it is the argument of the Appellant that an interlocutory appeal had entered on the subject matter in Appeal No. CA/A/1131/2018 and the trial Court therefore lacked the jurisdiction to pronounce on the said subject matter in its final judgment. Let me state herein that the said Appeal No. CA/A/1131/2018 is an interlocutory appeal against the ruling of the trial Court which nullified the national conference held by the Appellants in utter disregard of the Court’s order for which summons was issued against the Appellant for contempt.

It is important to emphasis that this said ruling arose from an application which sought to commit the Appellant for contempt, and that the order of Court which was disobeyed by the Appellant has not been appealed against.

Generally, where an interlocutory order does not dispose of a case, it would be wrong to stay proceedings on that matter pending the determination of the appeal. See AGU V. COP (2017) 2 NWLR (PT. 1549) 254 (CA).

The position of the law is settled that a notice of appeal does not operate as a stay of proceedings. For proceedings of a Court to be stayed, there must be an application granted by that Court to that effect. See ALIOKE V. OYE (2018) 18 NWLR (PT. 1651) 247 (SC); ONNOGHEN V. FRN (2020) 12 NWLR (PT.1738) 289 (CA); SECT10N 17 OF THE COURT OF APPEAL ACT, CAP. C36, LAWS OF THE FEDERATION OF NIGERIA 2004; ORDER 4 RULE 11, COURT OF APPEAL RULES 2011.

Hence, any party appealing against an interlocutory decision of a Court is under a duty to apply for stay of further proceedings until the determination of the interlocutory appeal if the party believes that the result of his appeal will affect further proceedings in the matter. Of importance is the fact that the Appellant herein did not apply for stay of proceedings.

Having settled that notice of interlocutory appeal does not operate as a stay of proceedings, in the instant case, the Appellant’s contention that having entered an interlocutory appeal, the trial Court was bereft of the jurisdiction to proceed to determine the appropriateness of the action of the Appellant cannot stand in law.

Most importantly is the fact that stay of proceedings is a discretionary power of the Court. It is not exercised as a matter of right and definitely cannot be exercised in favour of a Contemnor. A Contemnor who does not obey or is in disobedience of a Court order cannot be entitled to be granted the indulgence of the exercise of the equitable jurisdiction of a Court of law. A party in disobedience or in contempt of the order of a competent Court of law cannot be allowed any relief sought in equity as he that comes to equity must come with clean hands. See GOVERNOR OF LAGOS STATE V.

OJUKWU 1986 1 NWLR where the Supreme Court of Nigeria deprecating such an erring and aberrant party or litigant held that the Court cannot exercise its equitable jurisdiction in aid of a person guilty of disobedience to its orders, as such a litigant by even approaching the Court is merely one that is out to taunt the Court. May that day never come when a judicial officer shall lend judicious helping hand to a taunting and disobedient litigant. Certainly, the Appellant herein could not be granted such judicial help.

Accordingly, I hold that the lower Court had the requisite jurisdiction to make consequential orders for the holding of a fresh National Delegates Conference for the Appellant even when there was a pending appeal against its ruling which nullified the national conference held by the Appellants in utter disregard of the Court’s order for which summons was issued against the Appellant for contempt. I resolve issue 2 in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 3 “Having regard to the facts and law, whether the lower Court has the power to grant a consequential order not arising from the principal claims before it?” Olumide Philips, Esq., on this issue submitted that where the principal claim sought in an action is refused, an incidental order cannot be rightly made as there would be no principal claim on which such incidental order can stand on. He relied on OFONDU V. NIWEIGHA [1993] 2 NWLR (PT.275) 253; AKINBOBOLA V. PLISSON FISKO (NIG) (LTD) [1991] 1 N.W.L.R (PART 167) 270; REGISTERED TRUSTEES OF APOSTOLIC CHURCH V.

OLOWOLENI (1990) 6 NWLR (PT. 158) 514. He submitted on when a consequential order may not be granted. He relied on TUKUR V. GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (PT. 117) 517. Olumide Philips, Esq., further submitted on the sole aim of consequential orders. He cited NOERKER V. PLATEAU STATE [2018] 16 N.W.L.R (PART 1646) 481 AT 495-496 H-A; ETIM EKPENYONG & ORS V. INYANG EFIONG NYONG & ORS [1975] LPELR – SC.161/1974; UNION BANK OF NIGERIA LTD V. OGBOH (1995) 2 NWLR (PT. 380) 647, 664G; UGOCHUKWU V. C.C.B (NIG.) LTD. (1996) 6 NWLR (PT. 456) 524, 539G.

The learned counsel submitted that the trial Court elevated the provisions of Section 19 of the National Industrial Court Act 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which are subsidiary legislations that can be derogated from to the pedestal of case law and legal rules and by so doing, occasioned miscarried justice. He relied on BROAD BANK OF NIGERIA LTD. V. OLAYIWOLA & SONS LTD & ANOR [2005] 3 NWLR PART 912 PAGE 434; AG LAGOS V. EKO HOTELS LTD & ANOR. [2006] 19 SC. 46.

He submitted that a decision that is based on irrelevant and extraneous considerations such as that of the trial Court in the instant appeal is perverse and liable to be set aside. He relied on N.M.S LIMITED V. J.P.F LIMITED [2005] LPELR-5981(CA) (2005) ALL FWLR (PT. 288) 1193 AT 1206, OSUJI V. EKEOCHA [2009] 16 N.W.L.R (PT. 1166) 81 AT 177.

The learned counsel thus submitted that decision of the Court below consequentially appointing a public trustee based on the earlier nullification of the Appellant’s delegates conference was made without jurisdiction, as the issue of Appellant’s National Delegates Conference was neither pleaded, nor evidence given about it before the Court below.

He further submitted that, there was no Court Order on 6th December, 2017 and a close examination of the bench advice of the lower Court dated December 6, 2017 alluded to by the lower Court will show that the lower Court did not restrain the Appellant from holding a delegates’ conference. He urged the Court to resolve the issue in favour of the Appellant and allow the Appeal. Chinyere Moneme, Esq., for the 1st Respondent in response to this issue submitted that a consequential order is one which gives effect to a judgment or order to which it is consequential.

He cited ODOFIN & ANOR VAGU & ANOR (1992) 3 NWLR (PT. 229) 350. The learned counsel submitted that rules of Court are meant to be obeyed. They serve to guide both the Courts and the parties with the aim of a smooth and effective administration of Justice. Thus, a Court such as the trial Court has power to grant all remedies which would be necessary to ensure that justice is done. She cited HONEYWELL FLOURMILLS PIC V ECOBANK (NIG) LTD (2016) 16 NWLR (PT. 1539) P.426 PARAS H-A; SECTION 14 OF THE NATIONAL INDUSTRIAL COURT ACT (ENACTED PURSUANT TO SECTION 254D (2); BELLO V.

AG OYO STATE (1986) 5 NWLR (PT. 45) 828. The learned counsel submitted that the Appellant’s contention that the order of the lower Court was invalid because it was not specifically claimed falls flat on its face and must be discountenanced as a Court of law must not be understood to play the role of a robot in dispensing justice. He relied on N.S.I.T.F V. IYEN [2014] 9 NWLR (PT.1422) AT 349. He submitted that a decision taken in the overall interest of justice cannot be said to be perverse.

She relied on AKINGBOU V FRN (2018) 14 NWLR (PT.1640) P.416 para F-G and urged the Court to dismiss the appeal. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue contended that the consequential order flowed from the principal claims. He submitted that the trial Court has the discretionary power to make order as to the appointment of a Public Trustee suo moto where there is intra-union or intra-organisational dispute. He relied on HAJIA YINUSA BAKARI V. OGUNDIPE (2021) 5 NWLR PART 1768; USIOBAIFO V. USIOBAIFO (2005) 3 NWLR (PT. 913) 665; N.S.T.I.F V.

IYEN (2014) 9 NWLR 9 (PT 1422) PP. 3429-350.PARAS H-A; ORDER 59 RULE 1 OF THE NATIONAL INDUSTRIAL COURT OF NIGERIA (CIVIL PROCEDURE) RULES, 2017; SECTION 6 OF THE 1999 CONSTITUTION AS AMENDED IN 2011. It is also the submission of the learned senior counsel that the trial Court invoked its inherent powers and modified the relief in order to do substantial justice. He relied on UNIVERSAL OIL LTD V. NDIC (2008) 6 NWLR (PT 1083) 254; ABACHA V. STATE (2001) 3 NWLR (PT. 699) 35.

He further submitted that considering the exigency and circumstances of this case, the Court can grant consequential orders to fill in the vacuum which was created by the retirement of the president and give effect to the judgment of the Court. He urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that the 1st and 2nd Respondents have not appealed against the finding and or decision of the trial Court to the effect that their entitlement to the relief that the incumbent president has retired was not proved. Thus, same is binding, subsisting and conclusive against them. He relied on KOYA V. U.B.A. LTD (1997) 1 NWLR (PT. 481) 251 AT P. 266, P.N. UDOH TRADING CO. LTD V. ABERE (2001) 11 NWLR (PT. 723) 114 AT P. 146 and ANYANWU V. OGUNEWE (2014) LPELR -22184.

He contended that the Court not being father Christmas cannot grant reliefs not sought. Thus, the appointment of a public trustee to manage the affairs of the Appellant and direction of the conduct of fresh National Delegates Conference of the Appellant to elect new executive members for purposes of running the affairs of the Appellant which were not sought by any of the parties as specific reliefs; cannot be granted. He relied on VEEPEE INDUSTRIES V. COCOA INDUSTRIES LTD (2008) 13 NWLR (PT. 1105) 486 AT P. 512, PARAS F-H; YUSUF V. OYETUNDE (1998) 12 NWLR (PT. 579) 483 PP. 498 – 499, PARAS.

H – A. See also EKPENYONG & ORS V. NYONG & ORS (1975) LPELR – SC 161/1974 and S.S. CO. LTD V. AFROPAK(NIG) LTD (2008) 18 NWLR (PT. 1118) 77. The learned counsel submitted that such orders did not qualify as consequential orders as they did not flow from any of the reliefs granted by the Court. There must be a principal relief upon which a consequential relief or order could be predicated. He cited DR. AYEMOBA V. MRS. OLUBUNMI AYEMOBA (2018) LPELR – 45385 (CA); NOEKOER V. PLATEAU STATE (2018) 16 NWLR (PT. 1646) 481 AT PP. 495 – 496, PARAS. H – A; AKINBOBOLA V.

PLISSON FISKO (NIG) LTD (SUPRA); TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517; REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR (PT. 158) 514. He urged the Court to resolve the issue in favour of the Appellant. RESOLUTION OF ISSUE 3 A consequential order is an order which gives effect to the judgment of the Court.

It must flow from the judgment. See BAKARI V. OGUNDIPE (2021) 5 NWLR (PT. 1768) 1 (SC); NOEKOER V. GOV., PLATEAU STATE (2018) 16 NWLR (PT. 1646) 481 (SC); OYEYEMI V. OWOEYE (2017) 12 NWLR (PT. 1580) 364 (SC); ELIGWE V. OKPOKIRI (2015) 2 NWLR (PT. 1443) 348 (SC); YANKEY V. AUSTIN (2021) 1 NWLR (PT. 1757) 227 (CA). By the very nature of the term consequential, and in its ordinary dictionary meaning, the word consequential means following as a result, or inference; following or resulting indirectly. A Court has jurisdiction to make consequential orders where necessary.

These are orders which are incidental to the decision of the Court and which flow necessarily, naturally, directly and consequently from the judgment, and not extraneous nor can be classified as strange and do not need to have been claimed earlier to be given or granted. See U.O.O. (NIG.) PLC V. OKAFOR (2020) 11 NWLR (PT. 1736) 409 (SC). A consequential order is traceable to or flows from the relief prayed for and must be made consequent upon the relief claimed by the Claimant. It may have an indirect or secondary result in the relief awarding process.

It is appurtenant to the main or principal order. The High Court has inherent powers to make orders even if they are not sought by the parties where such orders are incidental to the prayers sought and where the claimant includes in his prayers the expression “and for such order or other orders as this Honourable Court may deem fit to make in the circumstance”. Whatever be the case, a consequential order must be incidental to, and flow directly and naturally from reliefs claimed being an offshoot of the main claim to give effect to the judgment.

In the instant case, the consequential order made was a follow-up to give meaning to the decision of the trial Court and so was incidental to the main order. The trial Court having declared null and void the national delegates conference held in disobedience to the Court’s order, the appointment of the trustees naturally followed.

The law being settled that a Court has the jurisdiction to make consequential orders where necessary so far as the said order relates to matters adjudicated upon; in this case, the order by the National Industrial Court that Public Trustees be appointed for the 2nd Defendant to oversee the running of the association followed from the fact that the incumbent chairman had retired and valid election yet to be conducted. The natural sequence or resulting order was for a public trustee to be appointed to oversee the affairs of the association.

Hence, I hold that the order made by the trial Court which I have held was a consequential order was rightly made. The lower Court therefore did not grant a consequential order not arising from the principal claims before it. I resolve this issue in favour of the 1st and 2nd Respondents.

SUBMISSIONS ON ISSUE 4 “Whether the lower Court was right to base its decision to order for the appointment of a Public Trustee to oversee the administration and finances of the Appellant on the provisions Section 19 of the National Industrial Court Act, 2006 and Order 59 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 rather than Section 19(1) and (2) of the Trade Union Act, a specific statute governing trade union activities?

Olumide Philips, Esq., on this issue submitted that where there are two enabling enactments on a subject matter, one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. He relied on FEDERAL MORTGAGE BANK OF NIGERIA V. P. N. OLLOH (2002) 9 NWLR PART 773 PAGE 475, (2002) 4 S. C. PART II PAGE 117; SCHRODER & CO. V. MAJOR CO. LTD. (1989) 2 NWLR PART 101 PAGE 1 AT 21 PER AGBAJE JSC, BAMIGBOYE V.

ADMINISTRATOR-GENERAL (1954) 14 WACA PAGE 616, THE GOVERNOR OF KADUNA STATE & ORS V. LAWAL KAGOMA (1982) 6 SC 87, EZEADUKWA V. MADUKA (1997) 8 NWLR PART 518 PAGE 635 AT 657 PARAGRAPHS B – D, AGRO ALLIED ENT. LTD. V. MV NORTHERN REEFER & 2 OTHERS (2009) 5-6 S.C. PART 1 PAGE 110 AT PAGE 122.

He submitted that since the Trade Unions Act was specifically enacted by the legislature to regulate Trade Unions activities in Nigeria, the Court in making the consequential orders ought not to have relied on the provisions of Order 59 of the National Industrial Court Rules 2017 and Section 19 of the National Industrial Court Act 2009 but should have rather relied on Section 19 (1) and (2) of the Trade Unions Act. He relied on LUBY V. WARWICKSHIRE MINERS ASSOCIATION (1912) 2 CH. 37; NDIC V. GOVERNING COUNCIL OF THE ITF & ANOR (SUPRA).

Olumide Philips, Esq., contended that orders obtained without jurisdiction is void. He relied on MACFOY V. U.A.C. (SUPRA); SKEN CONSULT(NIG) LTD & ANOR V. UKEY [1981] LPELR-3072(SC). It is also his contention that the Court of appeal can validly exercise its powers under Section 15 of the Court of Appeal Act to determine the real question in controversy between the parties. He cited OSHOBOJA V. AMUDA [1992] 6 NWLR (PT. 250) 690 S.C, CHIEF EJOWHOMU V. EDOK- ETER MANDIUS LIMITED (1986) 9 SC. He urged the Court to allow the appeal and reverse the judgment of the lower Court.

Chinyere Moneme, Esq., for the 1st Respondent in response to this issue agreed with the Appellant that where there are two enabling enactments on a subject matter, one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. She cited ZAKARI V. IGP (2000) 8 NWLR PART 670 P.666 AT P 683-684, MRS F BAMGBOYE V ADMINISTRATOR GENERAL 14 WACA 616 AT PAGE 619, GOVERNOR OF KADUNA STATE & ORS V.

LAWAL KAGOMA (1982) 6 SC 87 AT 107 – 108, KRAUS THOMPSON ORGANISATION LTD V. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR- 1714 (SC), 2004 9 NWLR (PT. 879) 61; SCHRODER V. MAJOR (1989) 2 NWLR (PT 101) 1 AND ORUBU V. NEC (1988) 5 NWLR (PT. 94) 323. But however, she submitted that there is no conflict between the aforestated enactments Section 19 (1) & (2) of the Trade Unions Act; and Section 19 of the National industrial Act & Order 59 of the National Industrial Court (Civil Procedure) Rules, 2017 as they do not cover the same subject matter.

The learned counsel contended that while Section 19 of the Trade Union’s Act deals with an application for an injunction to restrain any unlawful or unauthorized application of the funds of a trade union, the National Industrial Court (Civil Procedure) Rules 2017 on the other hand deals with the mode and procedure of the appointment of a public trustee including his remuneration, eligibility and functions. Therefore, it was submitted that the above principle is inapplicable since the laws do not cover the same subject matter. He relied on ARAKA V.

EGBUE (2003) LPELR – 532 (SC) and urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal. Mohammed Ndarani Mohammed, SAN for the 2nd Respondent in response to the issue submitted that Section 19 of the Trade Union Act does not exclude the right of any member who has sufficient interest in any relief sought for in an injunction. He relied on ACMEL NIGERIA LTD & ANOR V. FBN PLC & ORS (2014) LPELR-2244 (CA).

The learned senior counsel contended that the Appellant has rightly argued that where there are two provisions of the law, one specific and the other general covering the same subject matter, a matter falling within the words of the specific provision as in the instant case, must be governed by the specific provisions thereby and not the general provision. He submitted that Section 19 of the National Industrial Court Act is a special provision on the subject of this appeal. He relied onOMINI & ORS VS.

YAKURR LGA & ORS (2019) LPELR – 46300 (CA), PER SHUAIBU, J.C.A (PP. 10-13 PARAS B-B); ZAKARI V. IGP (2000) 8 NWLR (PT. 670) PG. 693-684. 7.7. Mohammed Ndarani Mohammed, SAN finally submitted that the appointment of a Public Trustee by the President of the National Industrial Court under Section 19 of the National Industrial Court Act 2006 and Order 59 Rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 is very much in order and has not occasioned miscarriage of justice. He urged the Court to resolve the issue in favour of the Respondents and dismiss the appeal.

Paul Kasim Esq., for the 3rd Respondent in response to the issue submitted that Trade Union Act was specifically promulgated by the Legislature to govern the activities of Union Activities inclusive of the appointment of a Public Trustee. The said Act made provision for the appointment of a Public Trustee for the Appellant – a trade Union. He cited Section 19 (1) and (2) of the Trade Union Act.

The learned counsel submitted that Section 19 (1) & (2) of the Trade Union Act is the only applicable law the lower Court ought to rely on because it is a specific law governing the activities of Trade Unions and has provided for the appointment of a public trustee and not the National Industrial Court Act and Rules of industrial Court, which is a general law. He relied on AMERICA SPECIFICATION AUTOS LIMITED & ANOR V. ASSET MANAGEMENT CORPORATION OF NIGERIA (2017) LPELR- 4401 (CA); ABUBAKAR V. NASAMU (2012) 17 NWLR (PT. 1330) 523 AT 526.

Paul Kasim Esq., further submitted that the conditions precedents for the appointment of a Public Trustee to administer the finance of the Appellant listed by the Trade Union Act which is to the effect that the Attorney General of the Federation or the Registrar or any five members of the union have to apply for an injunction restraining the unauthorized use of the Appellant’s funds were not fulfilled by the 1st and 2nd Respondents. He cited Section 19 of the Trade Union Act. He submitted that the failure to fulfill this condition precedent rendered the appointment void.

He relied on ORAKUL RESOURCES LTD. V. N.C.C (2007) 16 NWLR (PT. 1060) 270 AT 302 PARAS B – D (CA); NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664. He urged the Court to allow the appeal. RESOLUTION OF ISSUE 4 The settled principle of law that where there is a conflict between two laws covering the same subject matter, one specific and the other general, the specific provision of the law prevails; is elementary.

See E.F.C.C. V. REINL (2020) 9 NWLR (PT. 1730) 489 (SC). Therefore, where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter would not be interpreted as derogating from what has been specially provided for, unless an intention to do so is unambiguously declared. Parties are in ad idem that the Trade Union Act is a specific provision while the National Industrial Court Rules is a general provision.

What will guide the resolution of this issue is the answer to the question, whether the provisions of the two enactments under view cover the same subject matter. Let me start with the reproduction of the said sections for emphasis.

Section 19 of the Trade Union Act provides: (1) “Without prejudice to the right of any person having a sufficient interest in the reliefs ought to apply for an injunction to restrain any unauthorized or unlawful application of the funds of a trade union, an injunction restraining any such application of the funds of the trade union may be granted by the appropriate High Court upon the application of the Attorney-General of the Federation or of the Registrar, or of any five or members of the union. (2) On an application under this section, the appropriate High Court may, in addition to or instead of granting an injunction, order that the whole or any part of the funds of the trade union be paid over to the Public Trustee to be administered or disposed of in accordance with the rules of the union.

Section 19 of the National Industrial Court Act provides: The Court may in all other cases and where necessary make any appropriate order, including- (a) the grant of urgent interim reliefs; (b) a declaratory order; (c) the appointment of a public trustee for the management of the affairs and finances of a trade union or employers’ organisation involved in any organisational dispute; (d) an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear; and (e) an order of compliance with any provision of any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear.

Order 59 of the National Industrial Court Rules provides: Where there is an intra-union or intra- organisational dispute before the Court, the Court may suo motu or upon a motion on notice by any of the parties make an order for the appointment of a Public Trustee to manage the administration, affairs and finances of the trade union, employees’ or employers’ organization involved in any intra-union or intra-organizational disputes before the Court to appoint a Public Trustee states as follows: Rule 2(1) The Court may appoint a Public Trustee from among reputable and notable Nigerians who certify the provisions of Rule 3 of this Order.

Rule 2(2) Where the Court orders that a Public Trustee be appointed in line with the provisions of Sub-rule 1 of this Rule, the Judge shall remit the file of the proceedings to the President of the Court for the appointment of the Public Trustee to manage the affairs administration and finances of the trade union, employee’s association or employers organisation. Provided that the appointed Public Trustee shall not interfere with or play any role in statutory union, association or organisation activities.

From the above extract, it is evident that the provisions of Section 19 of the Trade Union Act specifically deals with the application of a Union’s fund and nothing more while the provisions of the National Industrial Court Rules and Act respectively, relate to the management of the affairs of the Union, the administration of the Union and the application of its finances. ​The suit before the trial Court did not relate to the Union’s fund and no rule of interpretation can be applied to limit the said suit to application of the Union’s fund. No. it is way more than that.

The learned counsel for the Appellant and the 3rd Respondent cannot by any stretch of flowery submissions limit the suit to the application of the union fund. A glance at the reliefs sought which includes an order nullifying the expulsion of the 1st Respondent from the union; an order that the office of the president of the Appellant be declared vacant and that the 2nd Respondent be appointed to that office pending when elections would be conducted and etcetera makes it crystal clear that both the management and administration of the affairs of the Union were in issue.

Reliefs such as the nullification of the invalid expulsion of some members, declaration of the executive office of the chairman vacant, injunction restraining executives from amending the constitution of the Union, and etcetera cannot be classified as application of Union’s fund. Flowing from the above, I hold that the provisions of Section 19 of the Trade Union Act and the provisions of Section 19 of the National Industrial Court Act and Order 59 of the National Industrial Court Rules relied on by the trial Court do not cover the same subject matters.

While the Trade Union’s Act is applicable where there is issue of how the funds of a Union is to be applied, the provisions of the National Industrial Court’s Act and Rules on the other hand apply where there is an intra-organizational or inter-organizational dispute as to the management of the general affairs of the Union. Therefore, I hold that the trial Court was right when it relied on the provisions of the National Industrial Act and Rules in the appointment of Public Trustees for the management of the general affairs of the Union pending when a valid election is conducted.

This issue is resolved in favour of the 1st and 2nd Respondents and against the Appellant.

In all, having resolved all the issues in favour of the 1st and 2nd Respondents and against the Appellant, the appeal fails and the same is hereby dismissed. I uphold the decision of the National Industrial Court of Nigeria Per Sanusi Kado, J., delivered on 25th October, 2019; in Suit Number: NICN/ABJ/31/2016. I award the costs of N200,000.00 in favour of the 1st and 2nd Respondents respectively.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Uchechukwu Onyemenam JCA, just delivered. I agree that the appeal is bereft of any merit and I also dismiss it and award the sum of N200,000.00 (Two Hundred Naira only) as costs in favour of the 1st and 2nd respondents.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal fails and it is accordingly dismissed. ​ I abide by the consequential order of costs assessed at N200,000.00 only in favour of the 1st and 2nd Respondents.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C . (Delivering the Leading Judgment): This is a cross-appeal against the judgment of the Court of Appeal, Lagos Division delivered on 19th July 2004 wherein the Court held that an action commenced in a representative capacity wherein the plaintiffs failed to obtain the leave of Court to sue in that capacity or failed to obtain the authorization of the represented parties, the action enures as it relates to the named initiators alone.

The genesis of the subject matter of this appeal is the rationalization exercise carried out by the appellant between 1996, 1998 and 10th March 2003, purportedly pursuant to a Federal Government directive, which resulted in the redundancy of the 1st-11th Cross-Appellants and over one thousand other staff of the bank, which according to them was in violation of the Appellant’s enabling laws and Articles 4-6 of its staff manual.

Despite representations to various authorities and the setting up of several panels to review the exercise, the exercise was not reversed and the appellant refused to reinstate them.

​Consequently, by an Originating Summons filed on 19th May 2003, the 1st-11th respondents “for themselves and on behalf of the over one thousand staff of the Central Bank of Nigeria (CBN) recently rationalized or relieved of their jobs,” sought the following reliefs against the appellant and the Attorney General of the Federation: “a. A Declaration that the 1st respondent being an autonomous legal body is not subject to the Federal Government control in its affairs with its staffs (sic). b.

A Declaration that the Federal Government Directives to the 1st Respondent to embark on rationalization of its staff is wholly violative of the 1st respondent’s contractual relationship with its staffs (sic). c. A Declaration that the 1st Respondent’s rationalization exercise on the “instigation” and “Directive” of the Federal Government between 1996, 1998 and 10th March 2003 is wholly violative of Chapters 4-6 of the 1st respondent’s staff manual. d.

An Order nullifying the purported rationalization exercise conducted by the 1st respondent on “the directives” of the Federal Government (an interloper) who is neither the employer of the applicants nor privy to the contractual relationship existing between the applicants and the 1st respondent. e. An Order directing the 1st respondent to reinstate the applicants immediately to their respective posts without loss of seniority or benefits.”

The Originating Summons was supported by a 24- paragraph affidavit with several exhibits attached thereto and marked Exhibits A, B, C1-C4, D and E1-E10 respectively. Exhibits E1-E10 are some of the redundancy letters issued to the affected staff. The 1st respondent filed a memorandum of conditional appearance on 30/5/2003 and on 30/6/2003 filed a motion seeking to raise a preliminary objection to the suit and an order dismissing the suit. Both parties filed further processes in support of and in opposition to the application with additional documents exhibited to their respective processes.

The preliminary objection was heard on 15/10/2003. In a considered ruling delivered on 5/11/2003, the application was dismissed. Dissatisfied, the appellant appealed to the Court below. In its judgment delivered on 19/7/2004, the appeal was dismissed with an order that the suit be remitted to the trial Court to be heard on its merit.

​One of the issues raised in the preliminary objection was that the action was incompetent for failure to seek authorization/leave to sue in a representative capacity on behalf of the unnamed parties. As stated earlier in this judgment, the lower Court held, inter alia that the suit was competent only as regards the named parties and that the outcome could not enure in respect of any of the unnamed parties. The cross appellants have filed the instant cross-appeal to challenge this aspect of the judgment. Its notice of cross-appeal filed on 1/3/17 contains a single ground of appeal.

The main appeal filed by the cross respondent was withdrawn and dismissed on 31/1/22.

In respect of the cross-appeal, Dr. Adekunle Ojo, SAN adopted and relied on the Cross Appellants’ brief filed on 30/6/2007 in urging the Court to allow the cross-appeal. He also relied on a list of additional authorities filed on 11/3/2020. OLADIPO TOLANI ESQ. adopted and relied on the Cross Respondent’s brief filed on 6/7/18 in urging the Court to dismiss the cross-appeal.

The cross appellant’s sole issue for determination is: “Whether, given the special circumstances and facts on record and plethora of decisions of this Honourable Court, the named 11 Applicants/Cross appellants’ action for themselves and on behalf of the slightly over 1000 (One Thousand) unnamed Applicants/Cross-Appellants rationalized staff of the 1st Respondent enures only for the eleven named applicants?”

The cross respondent’s single issue is similar to the cross appellants’ issue. It is therefore not necessary to reproduce it here. I shall proceed to determine the appeal on the cross appellants’ issue.

Sole Issue Learned Senior Counsel for the Cross appellants argued that the part to the decision of the lower Court complained of is not in line with consistent authorities of this Court. He submitted that the facts of this case are on all fours with authorities such as Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587, where parties have been allowed to sue in a representative capacity with or without written authorization or leave. He set out the circumstances in which this could occur, to wit: a. The existence of numerous persons to be represented; b.

All the Cross-Appellants have the same interest in the subject matter of the suit; c. All the Cross Appellants have the same grievance; d. The eleven named representatives are part of the whole; and e. The reliefs sought are by their nature beneficial to all the persons being represented.

He submitted that the only burden on a plaintiff suing in a representative capacity is to show that they have a common grievance or common interest and it is not mandatory to obtain their consent. He submitted that the action by 11 persons for themselves and for over 1,000 CBN staff is in line with decisions of this Court wherein it has held that an action taken in a representative capacity is competent in respect of not only those who initiated it but also the unnamed persons represented. That both the named parties and those represented are parties to the action.

See: Mbanefo Vs Molokwu (2014) 6 NWLR (Pt. 1403) 377 @ 425 C-D. He submitted that the Court below failed to consider the affidavit evidence and the exhibits annexed thereto, which, in his opinion, clearly demonstrated the common grievance and common interest of the unnamed parties with the eleven cross appellants. He contended further that there is nowhere in the cross respondent’s affidavits where it alleged that it would be prejudiced in any shape or form by the suit as constituted.

He also observed that by its letter dated 3/12/96, addressed to the Secretary to the Government of the Federation, the Cross respondent in stating its reasons for the rationalization, specifically mentioned the 6th cross-appellant (Mr. N.A. Ogunbuyide) and “over 1,000 others”, which was a clear indication that it recognized the named and unnamed parties as being part of the same group with a common interest/grievance.

He submitted that by the combined provisions of Order 12 Rule 1(1) and (7) of the Federal High Court (Civil Procedure) Rules, 2000, a set of named plaintiffs may institute a suit on behalf of other unnamed plaintiffs in a representative capacity if they all have the same grievance, once the pleadings show a representative capacity, as in the instant case. He referred to Ofia Vs Ejem (2006) 5 SC (Pt. 111) 41; Afolabi vs Adekunle (1983) 8 SC 98; Ayinde Vs Akanji (1988) 1 SC 106.

He noted that the endorsement of the Originating Summons clearly shows that the action was brought in a representative capacity and that the averments in the supporting affidavit are to the effect that the named and unnamed parties all share a common grievance.

Learned senior counsel argued that the finding of the lower Court complained of was based on Order 12 Rule 8 of the Federal High Court (Civil Procedure Rules). He submitted that the interpretation of the rule is inaccurate having regard, not only to the interpretation of similar provisions of the Federal High Court Rules by this Court, but also having regard to the use of the word “may” in the said provision, which is permissive and not mandatory.

He noted that Order 12 Rule 8 of the Federal High Court Rules is in pari materia with Order 13 Rule 14 of the Lagos State High Court (Civil Procedure) Rules 1972, which provision was interpreted in Otapo vs Sunmonu (1987) 5 SC 228, to the effect that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, judgment could be entered for or against the party in that capacity even where an amendment to reflect that capacity had not been applied for and obtained. He also referred to Mbanefo Vs Molokwu (supra) @ 411 G-H.

He argued further that the purport of the decision in Otapo Vs Sunmonu is that the provisions of Order 13 Rule 14 of the Lagos State High Court (Civil Procedure) Rules 2000, are permissive and not mandatory.

Relying on the case of: Bankole Vs Dada (2003) 11 NWLR (Pt. 830) 74, he submitted that obtaining leave to sue in a representative capacity is superfluous, as the duty of the plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim. He referred to: Mozie Vs Mbamalu (2006) 15 NWLR (Pt. 1003) 495 per Tobi, JSC;Jack vs Whyte (2001)3 SC 121.

Learned senior counsel submitted that the authorities of Lawal vs Ariwajoye (2001) 5 NWLR (Pt. 707) 686, Ifekwe vs Madu (2000) 14 NWLR (Pt. 688) and Jack Vs Whyte (supra), relied upon by the lower Court, all support the principle of law enunciated in Otapo Vs Sunmonu (supra) and that the lower Court in line with the principle of stare decisis, ought to have followed those decisions.

On the issue of authorization by the unnamed parties, learned senior counsel referred to Exhibit OA1 attached to the Cross Appellants’ further affidavit at pages 81-82 of the record, which is a letter signed by some officers on behalf of the named and unnamed parties authorizing the named parties to institute the action for themselves and on behalf of all those affected by the rationalization exercise. He noted that neither the cross respondent nor any of the unnamed applicants objected to the letter or challenged its validity.

Conversely, he submitted that by the authority of this Court in Atane & Anor vs Amu (1974) 10 SC 163 @ 168 per Irikefe, JSC, a plaintiff suing in a representative capacity is under no obligation to obtain the consent of others whom he might represent although the position is different in the case of a representative defendant.

Learned counsel submitted further that the cross respondent lacks the locus standi to challenge the authority of the cross appellants to represent those unnamed applicants and that, in any event, having regard to his earlier submissions, the failure to obtain leave/authorization would not vitiate the suit. See: Gov. of Ekiti State Vs Hon. Kola Fakiyesi (2009) LPELR-8353; SPDC Nig. Ltd. vs Edamkue (2009) 14 NWLR (Pt. 1160) 1 @ 27-28 H-E.

He submitted that the unnamed parties in a representative suit have a constitutional right to be heard and urged the Court to protect their right guaranteed by Section 36 of the 1999 Constitution, as amended. See: Otapo Vs Sunmonu (supra).

Learned senior counsel argued that the Court has a duty to do substantial justice and to avoid multiplicity of actions. He submitted that where a party omits to sue in a representative capacity, the Court, suo motu, may order him to amend his processes to reflect that capacity in order to meet the ends of justice. He referred to Bamisile Vs Osasuyi (2007) 9 NWLR (Pt. 1042) 255) (CA), SPDC Nig. Ltd. Vs Edamkue (supra). He urged the Court to resolve the appeal in favour of the cross appellants.

​In response to the above submissions, learned counsel for the cross respondents contended that the Court below was correct when it held that the requirement to obtain authorization or leave before suing in a representative capacity is a condition precedent to the commencement of the action on behalf of the unnamed parties and that the effect of failure to obtain such authorization or leave is that only the named parties (or the initiators) can benefit from whatever decision is reached by the Court.

It was his view that the lower Court applied the correct interpretation to Order 12 Rule 8 of the FHC (Civil Procedure) Rules, 2000.

Learned counsel submitted that apart from the bare averment that they sued in a representative capacity, there was nothing before the Court to show the common denominator in the separate and distinct contracts of employment between the cross appellants and the unnamed parties they purported to represent. He argued that the letters of employment of all the unnamed applicants ought to have been exhibited along with evidence that the named applicants were authorized to sue on their behalf.

He conceded the fact that in Otapo Vs Sunmonu (supra), this Court held that failure to obtain authorization to sue in a representative capacity would not vitiate the action. He however argued that the facts and circumstances of Otapo Vs Sunmonu (supra) are distinguishable from the facts of the instant case because Otapo’s case involved a Chieftaincy dispute pertaining to all the members of a ruling house who had a common interest and that their pleadings and the evidence led demonstrated the common interest and grievance of the named parties and the unnamed parties they represented.

He asserted that the instant case presents a different scenario because there is nothing to show that the parties purportedly being represented actually exist. He noted that the letters of rationalization of the over one thousand staff were not placed before the Court. He submitted that the cases of: Otapo Vs Sunmonu (supra); Afolabi Vs Adekunle (Supra); and Ayinde Vs Akanji (Supra) were all fought on the basis of pleadings and evidence establishing their common interest, while the instant case is bereft of same. He urged the Court to dismiss the cross-appeal.

A representative action is an action brought or defended by a named person or some named persons on behalf of a group of persons who have the same interest or grievance. A judgment given in the matter binds the entire group represented, and not just the persons named on the originating process. The rationale for adopting this approach was stated by this Court in the case of: Atanda Vs Olanrewaju (1988) 4 NWLR (Pt. 89) 394 @ 409-407 G-A, per Oputa, JSC thus: “Our Rules of Court in the various jurisdictions, specifically provided for this.

And it is a salutary and common sense provision for where the parties are very numerous, it will be extremely cumbersome and irritatingly frustrating if everybody interested is made a named party. The Court will find it difficult to come to justice by insisting that everyone interested should be named on the writ as a party. For the sake of convenience, our Courts therefore approve of representative actions.

Thus, given a common interest or a common grievance, a representative action is in order if the relief sought is in its nature beneficial to all whom the named plaintiffs proposed to represent.” As stated in the authority cited above, various jurisdictions have enacted their own rules to accommodate representative actions.

Order 12 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2000 provide: “Rule 7: (1) If the plaintiff sues, or any defendant counterclaims in any representative capacity, it shall be so expressed on the writ. (2) The Court may order any of the persons represented to be made parties either in lieu of or in addition to the previous existing parties.

Rule 8: Where more persons than one have the same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf all parties so interested.” As rightly submitted by learned counsel for the cross appellants, the fundamental requirements for a suit brought or defended in a representative capacity are: 1) Those represented must have a common interest/common grievance and 2) The relief sought must in its nature be beneficial to all those whom the plaintiff or defendant is representing.

See: Ayinde vs Akanji (1988) 1 SC 106; Ogamioba & Ors Vs Chief Oghene & Ors (1961) 1 ALL NLR 59. It is to be noted that in the provisions of Order 12 Rule 8 reproduced above, the word used is “may,” which suggests that the provisions is permissive and not mandatory. It is a settled principle of interpretation of statues that words must be given their natural and ordinary meaning, unless to do so would lead to absurdity. See:Ibrahim Vs Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt. 61) 377; Agbaje Vs Fashola (2008) ALL FWLR (Pt. 443) 1302.

Learned counsel for the respondent and indeed the Court below gave a strict interpretation to Order 12 Rule 8. By its motion on notice filed on 26/6/2003 for the dismissal or striking out of the suit at the trial Court, one of the grounds for the application was that: “There is neither authorisation nor approval of this Honourable Court to commence the present suit which is purported to be a representative action.”

The 1st defendant (now cross respondent) argued that the plaintiffs (now cross appellants) failed to discharge the burden placed on them by law to show not only that they were authorised by over 1,000 rationalized staff of the bank to institute the action, but also, that they had sought and obtained leave of the Court to sue in that capacity.

Although they were served with a further counter affidavit with an exhibit attached thereto showing such authorisation, the 1st defendant (cross-appellant herein) urged the Court to disregard it, having been filed after the motion challenging the suit was filed and because there was no affidavit by the named plaintiffs stating that they had been so authorised. The trial Court rejected the argument of the 1st defendant and held that the failure to seek authorisation/leave to sue in a representative capacity would not vitiate the action.

It is pertinent to note that the position taken by the 1st defendant/cross-respondent was that the suit was incompetent ab initio for failure to seek authorisation/leave to sue in a representative capacity. The Court below agreed that the suit was not vitiated by the said failure but went on to hold that having failed to obtain authorisation/leave to sue in a representative capacity, only the named plaintiffs would be affected by the eventual outcome of the suit.

In effect, although it held that the suit was competent as far as the named plaintiffs were concerned, it took a hard stance on the failure to obtain authorisation/leave as it relates to the unnamed applicants.

​It has been held by this Court that representative actions are a matter of convenience, to avoid multiplicity of actions and to prevent a situation where a case becomes cumbersome and difficult to adjudicate upon due to the sheer number of parties and voluminous processes that would necessarily be filed. For that reason, the Courts adopt a more flexible approach.

In Otapo Vs Sunmonu (1987) LPELR-2822 (SC) @ 27 – E-F, it was held as follows: “This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity, the trial Court can justifiably enter judgment for or against the party in that capacity.” See also: Jack Vs Whyte (2001) 6 NWLR (Pt. 709) 266 @ 275 D-E; (2001) LPELR-1586 (SC) @ 10-11 E-A, per Uthman Mohammed, JSC, where His Lordship stated thus: “I agree that where a representative order would have been granted had it been asked for, failure to obtain it will not vitiate the action. …it is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of Court before filing his suit.

The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this Court does not and will not upset a judgment on a bare objection of failure to obtain the approval of the Court.

See Wiri Vs Wuche & Ors, (1980) 1 SC 1.” (Underlining mine) See also: Busari Vs Oseni (1992) 4 NWLR (Pt. 237) 557 @ 582; Durbar Hotel Plc Vs Ityough (2011) 9 NWLR (Pt. 1251) 41 @ 55 E-H per Okoro, JCA (as he then was). To further buttress the position in Jack Vs Whyte (supra), I refer to the dictum of Ogbuagu, JSC in Salisu & Ors.

Vs Odumade & Ors. (2010) LPELR-2995 (SC); (2010) 6 NWLR (Pt. 1190) 228 @ 241 C-E, to wit: “It is now firmly settled that even the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action… In fact, once pleadings and evidence establish conclusively a representative capacity, a trial Court will be entitled to enter judgment for and against the party in that capacity, even if an amendment to reflect that capacity had not been applied for and obtained.

It will be otherwise if the case is not made out in a representative capacity… a representative action is seen and considered as an action brought by the body of persons represented rather than the named plaintiff only.” (Underlining mine)

In the instant case, the cross appellants sued “for themselves and on behalf of the over one thousand staff of the CBN recently rationalized or relieved of their job.”

Paragraphs 3, 4, 5, 6, 7, 8, 16, 22 and 23 of the affidavit in support of the Originating Summons are instructive as to the common interest and common grievance of the named and unnamed applicants. The applicants averred thus: “3. That the Applicants who are all former staff of the 1st Respondent lost their job through rationalization carried out by the 1st Respondent on the directives of the Federal Government. 4.

That all the Applicants have a common grievance interest and issue, hence we are coming in a representative capacity for and on behalf of the over 1,000 former employees of the 1st Respondent that were sent packing in a swoop. 5. That sometime between 1996 and March 2003, the 1st Respondent embarked upon various rationalization exercises at the instigation and directives of the Federal Government. 6. That this rationalization from 1996-2003 is a continuous process, even till date. 7.

That the Applicants have jointly brought this action because it not only raises a common question of law and/or fact (i.e. Rationalization of the Applicants’ employment in a swoop by the Respondents) but also the question of the exercise (Rationalization) complying with the relevant legislation setting up the 1st Respondent. 8. That the Applicants in coming together to pursue their common claim and grievance will save time and will not in any way prejudice the Respondent. 16.

That the directives by the Federal Government to the 1st Respondent as revealed in Exhibit A above to the effect that the 1st Respondent should embark on rationalization of its staff is strange to the Applicants terms of employment with the 1st Respondent and also strange to the 1st Respondent’s enabling laws, 22. The Honourable Court is therefore called upon to invalidate the said rationalization exercise conducted by the 1st Respondent between 1996-2003 being a violation of the existing laws governing the 1st Respondent. 23.

That the Applicants therefore seek the reversal of the rationalization exercise and plead with the Court to reinstate them with immediate effect without loss of seniority and/or other benefits.”

In paragraph 4 of their further counter affidavit to the 1st defendant/cross respondent’s motion, it was averred: “4. That a further denial of paragraph 8 of the Applicant’s affidavit in support, on the 28/4/2003 majority of members of the rationalized staffers of the 1st respondent appointed the applicants to represent them in this suit. Attached and marked Exhibit OA1 is a copy of the letter to our solicitor to that effect.

Exhibit OA1 is a letter addressed to the applicants’/cross appellants’ solicitor with the heading “Re: Resolution Authorising the Commencement of Legal Action.” It reads as follows: “At the monthly national general meeting of the Central Bank of Nigeria (CBN) workers who were unjustly and prematurely rationalized in 1996 and 1998 on Saturday, April 26th, 2008 at the above address and attended by representatives of the following branches or outstations- Ibadan, Abeokuta, Benin, Ilorin, Jos, Minna, Kaduna, Kano, Enugu, Port-Harcourt, Abuja, Akure and the host branch Lagos, the following resolutions were unanimously made. 1.

That after all pleas from us and some other institutions like the National Assembly, the Nigeria Labour Congress (NLC), the National Union of Bankers and Insurance Employees (NUBIE), some important traditional rulers in the country, the Primate of Nigeria Anglican Communion, Most Rev. Dr. J.P. Akinola, retired Bishop Bolanle Gbonigi and other to the CBN Management appeared to have fallen on deaf ears, you are hereby mandated to immediately commence preparation for the filing of a legal suit on behalf of all of us – the slightly over 1,000 (one thousand) people affected. 2.

That you should ensure that the suit which should be in a representative capacity is filed before the end of May, 2003. 3. That the slightly over 1,000 (one thousand) of us that are affected have nominated and mandated the following 11 (eleven people) to sue on our behalf: 1. Mr. Olasupo Adedeji – National Co-ordinator 2. Mr. Chimezie C Ahaneku – Deputy Co-ordinator 3. Mr. GA, Nnamdi Osaji – Abuja Branch Representative 4. Mr. B.S.C. Igwebuike – Lagos 5. Mr. P.O. Olubowale – Benin Branch Representative 6. Mr. N.A. Ogunbuyide – Abuja Branch 7. Mrs. Pat Ikem – Abuja Branch 8.

Dr. (Miss) Joyce Ukaigwe – Lagos 9. Mr. Wilson Onyefunazua – General Secretary 10. Mr. R.O. Balogun – Lagos 11. Mr. S.E.A. Ahirima – Port Harcourt Branch Representative 4. That we shall fully discharge our obligations as regards the agreement we had earlier reached with you in respect of your legal representation. Signed: OLASUPO ADEDEJI National Co-ordinator/Chairman CHIMEZIE C. AHANEKU Deputy Co-ordinator W. ONYEFUNAZUA General Secretary For and on behalf of all those affected.”

​In my considered view, the title of the suit along with the averments in the supporting affidavit and further counter-affidavit, which, in a suit commenced by Originating Summons, constitutes the evidence in the case, clearly show the representative capacity in which the suit was brought, the common interest and grievance of the named and unnamed applicants and the fact that the reliefs sought will be of benefit to all of them. Thus, on the authorities referred to above, the unnamed applicants would be equally bound by the decision in the case as the named applicants.

The Court below, with respect, therefore erred when it held that the judgment in the suit would enure for the named applicants alone.

Learned counsel for the cross respondent has argued that there is no common interest between the named and unnamed applicants because they have individual contracts of employment with the cross respondent. I respectfully disagree with him. Even though they might have had separate contracts of employment with the cross respondent, it is their contention that the rationalization exercise was done in a blanket manner and across the board and therefore the effect of the exercise on all of them was the same.

Their common grievance/interest is therefore their redundancy and the restoration of their jobs.

It is pertinent to note that since the inception of the suit, there is nothing to show that any of those represented has challenged the authority of the named applicants to represent them. In the case of: Nta Vs Anigbo & Ors.(1972) LPELR-2069 (SC) @ 19-20 C-C, this Court held, inter alia: “If those named care to do so, they may ask for a representation order. If they do not, the Court is entitled to give judgment according to the evidence and the nature of the case.

If there are parties aggrieved at being caught within the case when they were not by name made parties thereto, they have a right to appeal under our Constitution…” The effect of all that I have been saying in the course of this judgment is that having indicated in the title of the suit and its accompanying processes that the action was filed in a representative capacity, any judgment delivered in the suit will enure to both the named and unnamed applicants.

In other words, even though leave to sue in a representative capacity was not obtained, as long as the trial Court is satisfied from the material before it that they sued in that capacity, it would be entitled to enter judgment for or against them in that capacity and the unnamed applicants would be bound by it.

The sole issue in this appeal is accordingly resolved in favour of the cross appellants. The appeal has merit and it is hereby allowed. The parties shall bear their respective costs.​

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Kudirat Kekere-Ekun JSC and to register the support in the reasonings from which the decision emanated, I shall make some comments.

This cross-appeal is against a part of the decision of the Court of Appeal, Lagos Division or Court below or lower Court, Coram: J.O. Ogebe, P.O. Aderemi and M.D. Muhammed JJCA (as they then were). The trial Federal High Court was presided by C.P.N. Senlong J. which delivered on 9th July, 2004 wherein the lower Court dismissed the appeal and remitted same to the trial Court to hear and determine the matter on its merit.

INTRODUCTION The Cross Appellants’ appeal to this Court originated from a suit commenced by way of Originating Summons dated 16th May, 2003 but filed on 19th May 2003. The class action was filed by eleven named Applicants for themselves and in a representative capacity on behalf of over 1000 (one thousand) other rationalised staff of the 1st Respondent/Appellant praying for the following orders: a. A Declaration that the 1st Respondent being an autonomous legal body is not subject to the Federal Government control in its affairs with its staff. b.

A Declaration that the Federal Government directives to the 1st Respondent to embark on rationalization of its staff is wholly violative of the 1st Respondent’s contractual relationship with its staff c. A Declaration that the 1st Respondent rationalization exercise on the instigation and Directive of the Federal Government between 1996, 1998 and 10th of March, 2003 is wholly violative of chapters 4-6 of the 1st Respondent’s Staff Manual d.

AN ORDER nullifying the purported rationalization exercise conducted by the 1st Respondent on the directives of the Federal Government (an interloper) who is neither the employers of the Applicants nor a privy to the contractual relationship existing between the Applicants and the 1st Respondent. e. An Order directing the 1st Respondent to reinstate the Applicants immediately to their respective posts without loss of seniority or benefits.

The Summons was supported by a twenty-four (24) paragraph affidavit deposed to by the 1st Cross-Appellant (Mr. Olasupo Adedeji) with the following documents attached as exhibits: a. 1st Respondent’s letter dated 03/12/1996 to the secretary to the Government of the Federation acknowledging that the 1st Respondent had carried out and/or complied with the Federal Government aforesaid directive on the rationalization Exhibit A b. 1st Respondent’s internal memo dated 10/03/2003 (Exhibit B); c.

Letter dated 22/10/2001 addressed to the Chairman of the Rationalization Staff Review Committee Exhibit C1); d. Letter dated 22/10/2001 by the Secretary-General of the Nigeria Labour Congress to the Government of the 1st Respondent (Exhibit C2); e. Letter dated 02/08/2000 by the deputy Speaker of the House of Representatives (Exhibit C3) f. Letter dated 2/7/2002 by Senator O. Durojaiye to the Governor of the 1st Respondent (Exhibit C4); g. The 1st Respondent’s Staff Manual (Exhibit D) and h. Various letters to the Appellants in respect of the rationalization (Exhibit E1-E10)

​On 30th May, 2003, the 1st Respondent/Appellant filed a memorandum by which she entered conditional appearance in the suit. Subsequently, she brought a Motion dated 25th June 2003 filed on 30th June 2003, by which she sought two orders: (i) leave to raise a preliminary objection to the suit, and (ii) an order dismissing or striking out the suit. The 1st Respondent/Appellant relied on five (5) grounds.

The motion was supported by a sixteen (16) paragraph affidavit (filed on the same 30th June 2003) deposed to by one Christopher Eyisanmi, who at that time was an Assistant Director in the Legal Services Department of the 1st Respondent/Appellant Bank.

In response to the 1st Respondent’s preliminary objection, the cross appellants filed a twelve (12) paragraph counter-affidavit dated and filed on 15th July 2003 deposed to by the same 1st cross-appellant with another annexure attached to it as Exhibit Q.

The 1st Respondent/Appellant Bank filed a Reply to the Counter-Affidavit on the 13th day of October, 2003 and attached eight (8) additional exhibits which comprised letters of Rationalisation issued on the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th Appellants (as Exhibits CE1, CE2, CE3, CE4, CE5, CE6, CE7 and CE8 respectively).

​On the 14th day of October 2003, the Plaintiffs/Cross-Appellants filed a further and better affidavit of nine (9) paragraphs dated the same day with the following annexures: a copy of letter of resolution authorising appellants to commence action is a representative capacity dated 28th April 2003 (Exhibit OA1) copy of the letter dated 3/12/1996 from the Director of Personnel of the 1st respondent addressed to the Secretary to the Government of the Federation Exhibit OA and a photocopy of the Vanguard Newspaper of 16th July 1996 – front page (Exhibit OA3)

The application for preliminary objection was heard on 15th October 2003 and the ruling by Justice C.P.N. Senlong was delivered on 5/11/2003. The trial Court ruled on all five grounds against the Defendant/Appellant. Dissatisfied with the ruling of the trial Judge, the 1st Defendant/Appellant appealed to the Court of Appeal on those grounds. In a judgment delivered on 19th July 2004, the Court of Appeal refused all the grounds of the appeal. Dissatisfied with the decision of the Appeal Court, the 1st Respondent/Appellant appealed to this Court by a Notice of Appeal filed on 24/9/2004.

​The Plaintiffs/Cross-Appellant being also dissatisfied with the portion of the decision of the Court of Appeal which held that the case enures only for the benefit of the eleven named plaintiffs has, pursuant to the order of this Court of 15th February 2017, filed this cross-appeal to ventilate their position on that portion of the decision. See pages 198 to 201 of the Records.

STATEMENT OF FACTS The Cross-Appellants were all members of staff of the Central Bank of Nigeria (1st Defendant/Respondent). Between 1996 and 2003 the Federal Government (2nd Respondent) gave various written directives to the 1st Respondent to terminate the appointments of some of its staff, most of whom are the Appellants. In compliance with these directives, the 1st Respondent/AppeIIant terminated the appellants’ appointments – over 1,000 appointments in all.

​In a letter to the 2nd Respondent dated 3rd December, 1996, the 1st Respondent claimed that the reason for laying-off the named Cross-Appellants and over 1,000 unnamed Applicant/Cross-appellants in what it called “rationalization exercise carried out by the Bank in compliance with the Federal Government directives.” The 1st Respondent also claimed that “when the number rationalized did not meet the expectation of Government, the Bank was left with no other alternative other than to invoke the provisions of Chapters 3(ii) and 4(i) of the Staff Manual (Exhibit D)”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Aggrieved by the respondent’s actions, the named Applicant/cross-appellants brought a representative action for themselves and on behalf of the over 1,000 other rationalized staff of the Bank (unnamed Applicant/Cross-appellants) by way of an originating summons, wherein they sought the Court to determine three (3) issues, to wit; a. Whether the 1st Defendant/Respondent (the Central Bank of Nigeria CBN) under its enabling laws i e the CBN Act, Cap 47, LFN, 1990; the CBN Decree of 1991 and the CBN (Amendment) Decree No. 3 of 1997, is an autonomous legal body, and if Yes. b.

Whether the Federal Government is competent to direct the 1st Respondent (CBN) on how to manage its staff affairs? And if the answer is No. c. Whether the rationalization exercise embarked upon by the 1st Respondent (CBN) between 1996, 1998 and 2003 and the review panel’s subsequent recommendations of the 10th March 2003 on the instigation of the Federal Government is not a violation of the contractual relationship between the 1st Respondent (as employers) and the Applicants (the rationalized staff)?

​The Appellant by a preliminary objection dated 25th June 2003 but filed on 30th June 2003 among other grounds challenged the competence of the suit on the basis that there is neither authorization nor approval of the trial Court to commence the suit in a representative capacity amongst other grounds. The application for preliminary objection was heard on 15th October 2003 and the ruling by Justice C.P.N. Senlong was delivered on 5/11/2003.

The trial Court ruled on all five grounds against the 1st defendant/Appellant dissatisfied with the ruling of the trial Judge, the 1st Defendant/Appellant appealed to the Court of Appeal on those grounds. In a judgment delivered on 19th July 2004, the Court of Appeal refused all the grounds of the appeal but held that the suit enures for benefit of only the named eleven Plaintiffs.

Learned counsel for the cross-appellant, Dr. Adekunle Ojo SAN adopted the brief of argument filed on 30/6/201 in which he distilled a single issue for determination, viz: Whether, given the special circumstances and facts on record and plethora of decisions of this honourable Court, the named 11 Applicant/Cross-Appellants’ action for themselves and on behalf of the slightly over 1,000 (one thousand) unnamed Applicants/Cross-Appellants rationalized staff of the 1st Respondent/Appellant enures only for the eleven named applicants?

Learned counsel for the cross-respondent, Oladipo Tolani Esq adopted the brief of argument filed on 6/7/2018 and deemed filed on 8/4/2019 and he has crafted a sole issue thus: Whether this suit inures in favour of only the eleven named plaintiffs (now Cross-Appellants) and not for the benefit of other unnamed persons in the absence of any authorisation and/or leave to sue in a representative capacity (Ground one).

I shall make use of the issue crafted by the cross-respondent as it is simply done.

SOLE ISSUE Whether this suit inures in favour only of the eleven named plaintiffs (now cross appellants) and not for the benefit of other unnamed persons in the absence of any authorization and/or leave to sue in a representative capacity.

​Advancing the position espoused by the cross-appellant, learned Senior Counsel contended that the action by eleven persons for themselves and for over 1,000 CBN staff is in line with the decisions of the Supreme Court which in plethora of cases have held an action taken in a representative capacity is competent in respect of not only its initiates alone because leave and authorization were not obtained by the initiators of the suit.

That from the wordings of Order 12 of the Federal High Court (Civil Procedure) Rules, applicants can sue in a representative capacity hence the action was brought by the eleven named Applicant/cross-appellants for themselves and the over 1000 cross-appellants unnamed is in order. He cited Afolabi v. Adekunle (1983) 8 SC 98 etc.

For the cross-appellant, it was contended that the position taken by the Court below was against the doctrine of stare decisis. He cited Tejumade A. Clement & Ors v Bridget J. Iwuanyanwu anor(1989) 3 NWLR (pt.107) 39 etc.

Learned counsel for the cross-respondent submitted that there is nothing to show that the persons being purportedly represented exist in the first place.

On the capacity of the 11 named appellants to represent the unnamed applicants/cross-appellants, the Court below stated as follows: ‘The fact that the Respondents had not been authorized by such others on whose behalf they also claimed to have taken out the originating summons against the Appellant is beyond dispute. That the trial Court had not granted respondents leave to pursue their claim on behalf of others is a settled fact as well.’

Order 12 Rule 8 of the Federal High Court …Civil Procedure Rules 2000 provides ‘Where more persons than one have the same interest in one suit, one or more of them may with the approval of the Court be authorized by the other persons interested to sue or to defend the suit for the benefit of all the parties so interested’

On the capacity of the 11 named appellants to represent the unnamed applicants/cross appellants, the Court below stated as follow: “The foregoing provision must be given its plain effect. See Odu’a Investment Ltd v. Talabi (1997) 10 NWLR (PT.523)1 SC and O.A.U. Ile Ife v Oliyide & Sons Ltd (2001) 7 NWLR (pt.712) 456.”

By the provision, one or more persons may commence an action for themselves and on behalf of others only if authorized by others and with the leave of the Court. The lower Court in its ruling did ask the pertinent question. ‘Does the lack of the Court’s approval or authorization by person interested in the action render the action incompetent? The Court’s answer in the negative is unassailable, The Court’s further reliance in its interpretative effort on the decisions of the Court in Lawal v. Ariwajoye l (2001)5 NWLR (Pt.707) 686, at 702 and Ifekwe V.

Madu (2000) 14 NWLR (Pt.688) 459 at 472 and the Supreme Court’s decision in Jack v. Whyte (2001) 6 NWLR (Pt.709) 266 at 275 is apposite. In these decisions, the two Courts have held that failure to obtain leave of Court or authorization of others will not vitiate the action. An action so commenced remains competent in respect to its initiates alone.

Because of the leave and authorization which the rule of Court had made a condition precedent to the commencement of the action in a representative capacity which leave and authorization had not been obtained by the initiators of the suit such the Respondents in the instant case, the action endures (sic) as it related to the initiators only, This conclusion resolves Appellants… issue against it but in his favour of the Respondents.” See pages 184 and 185 of the records stated.

The lower Court further held thus: “I agree with learned counsel for cross-appellants that the position of the Court below is unknown to law. It is held per incuriam and no Court of law is bound to follow it. Following such decision cannot be in the interest of the established principle of stare decisis. NGWO & ORS u MONYE & ORS (1970) All N.L.R 94. The cases relied upon by the Court below, to wit, Lawal v. Ariwajoye 1 (2001) 5 NWLR (Pt.707) 686, at 702 and Ifekwe V. Madu (2000) 14 NWLR (Pt.688) 459 at 472 and Supreme Court’s decision in Jack V.

Whyte (2001) 6 NWLR (Pt.709) 266 do not support the decision of the Court below that when leave of the Court is not obtained in a representative action enures only for the benefit of the named parties.”

It is noted that the observation of the lower Court was not canvassed by any of the parties and contrasts with the conclusion the same Court reached when it resolved the issue of misjoinder of the parties in favour of the cross-appellants.

Again to be said is that the decision of the Court below negates the oft cited case of Otapo v Sunmonu (1987) 2 NWLR (pt.58) 587 which judicial authority has been followed in a long line of other decisions of the Court of Appeal and Supreme Court.

To be clear, the facts and circumstances of this appeal are on all fours with the cases where parties are allowed by law to sue, in a representative capacity with or without leave and written authorisation for the following reasons: a. There are numerous persons on the side to be presented; b. All the Applicant/Cross-Appellants have the same interest in the suit which interest are joint and several; c. All of the Cross-Appellants have the same grievance; d The eleven named representatives are part of the whole; and e.

The reliefs sought are by their very nature beneficial to all the persons being represented. Taking up an action in a representative capacity has come to stay in our legal lexicon in this part of the clime. A representative action or a class suit/action is a lawsuit where a group of people in similar circumstances or class sues another party.

In such a representative action both the named plaintiff and those represented are parties to the action. ​It follows that the action by eleven persons for themselves and for over 1000 CBN staff is in line with the decisions of the Supreme Court which plethora of cases have held that an action taken in a representative capacity is competent in respect of not only its initiates alone because leave and authorisation were not obtained by the initiators of the suit.

It is a settled position of the law that the only burden cast upon the Plaintiffs in a representative action is to show that they have common interest or a common grievances and such a plaintiff is not bound to obtain the consent of others whom he might claim to represent.

The learned Justices of the Court of Appeal failed to consider the evidence on the records of the Court which showed conspicuously the common interest amongst the Cross-Appellants and the unnamed parties that were in a swoop rationalised by the 1st Respondent, else the Court would have come to a different conclusion.

​The cross-appellants, the named and the unnamed Plaintiffs, who were affected in one swoop, have always acted together in relating with the Appellant and the main grouse, which is common to the represented and the representatives, is that the class rationalisation carried out by the Appellant is illegal and void.

The fact that the Cross-Appellants have common grievances and have all along pursued them together are highlighted in the following ways; i. The Originating Summons and subsequent processes state that the named eleven plaintiffs sue for themselves and on behalf of over 1000 (one thousand staff) of the Central Bank recently rationalized or relieved of their job). ii. Paragraphs 4, 7 and 12 of the Affidavit in support of the Originating Summons dated 19th May 2003 also attest to this. iii. Paragraphs 2 and 4 of the further counter affidavit to 1st Respondent Motion of 25th June 2003 iv.

At pages 12 to 19 of the records is the joint input of the Applicants. v. The Appellant admitted in her letter 3/12/1996 (exhibit ‘A’ of the Originating Summons see pages 8 and 9 of the records) that there was a common grouse in all the cross-appellants, named and unnamed in the letter, the Appellant states: “The reason for the laying off Mr N.A. Ogunbuyide and over 1000 (one thousand) others was subsequent to the staff rationalisation exercise carried out by the Bank in compliance with the Federal Government directive”. vi.

The Cross-Appellants were target of a continuous exercise known as Rationalization exercise’, See the rationalization letters at pages 71-78 of the Record. vii. The rationalization letters exhibited before the trial Court comprised some of the rationalization letters issued to some of the unnamed Applicant/Cross- Appellants. The letters in respect of other unnamed Cross-Appellants such as A.S Sam, S Enwesi, K.A Lawal, S.A Ogun, J.E. Okoguale and G.S.O Ojo were also exhibited. viii.

There was actually a letter dated 28th April 2003 written by the plaintiffs/Cross-Appellants (named and unnamed) authorising the action. The letter was attached to the further counter affidavit filed on 14/10/2003. See pages 81 of the records. The Cross- Appellants are known to the Appellant and they acknowledge the cross-appellants as a group of persons with a common interest. The Appellant/1st Respondent and the 2nd respondent were not in doubt about the number of Plaintiffs and the fact that they are being represented by their named representatives.

In actual fact, the Respondents never at any time during the trial claimed that they would be prejudiced in any form. The records portray the following: a. 1st Respondent’s letter dated December 3rd, 1996 to the 6th Appellant which clearly stated that the reason for its rationalization of Mr. N.A Ogunbuyide (the sixth cross-Appellant) and over 1000 CBN workers (which included the Cross-Appellants) was in compliance with the directive of the Federal Government of Nigeria. See Pages 7 & 8 of the Record of Appeal). b.

Many of the correspondences on records are certain about the plaintiffs both named and unnamed,

A perusal of the wordings of Order 12 of the Federal High Court (Civil Procedure) Rules, applicants can sue in representative capacity hence the action was brought by the eleven named Applicant/Cross-Appellants for themselves and the over 1,000 Cross-Appellants unnamed in order.

The relevant provisions of the Federal High Court (Civil Procedure) Rules to this appeal are: Order 12 Rule 1(1) of Federal High Court Rules which provides : “All persons may be joined in one action as plaintiffs in whom any right or relief (in respect of or arising out of the same transactions or in a series of transactions) is alleged to exist whether jointly, severally or in the alternative, where such persons brought separate actions, any common question of law or fact would arise and judgment may be given for such one or more of the plaintiffs and may be found to be entitled to relief, for such relief and he or they may be entitled to, without any amendment ” Order 12 Rule 7 (1) If the plaintiff sues, or any defendant counter-claims in any representative capacity, it shall be so expressed on the writ. (2) The Court may order any of the persons represented to be made parties in lieu of, or in addition to the previously existing parties.

Order 12 Rule 8 Where more persons than one have same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf of all parties so interested. ​By the combined provisions of Order 12 Rules 1(1) and 7 of the Federal High Court (Civil Procedure) Rules 2000, a set of named plaintiffs are allowed to institute an action for themselves and on behalf of other unnamed Plaintiffs in a representative capacity if all of them have same grievances once pleadings show representative capacity as in this appeal.

See the cases of Ofia v. Ejem (2006)5 SC (Pt. III) 41 (SC), AFOLABI v. ADEKUNLE (1083)8 SC 98. This Court in the case of Ayinde v Akanji (1988)1 S.C 106 Craig J.S.C has listed the fundamental principle which governs suits brought in a representative capacity thus: “In the case of Ogamioba & Ors, Vs. Chief Oghene & Ors (1961)1 All N.L.R 59 the Federal Supreme Court held that the fundamental principle which governs suits brought in a representative capacity is that: 1. Those represented must have a common interest and a common grievance and 2.

The relief sought must in its nature be beneficial to all those whom the plaintiff is representing.”

In my humble view, the cross-appellants herein endorsed the Originating Summons to the effect that they are suing in representative capacity and they also pleaded facts that they have common grievance, which is to challenge the premature mass ‘rationalization exercise’ carried out by the Appellant/1st Respondent on the directive of the 2nd Respondent.

The learned trial Judge and the Court below from all indications decided based on Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000 that the case of the appellants falls to the benefits of the 11 named plaintiffs because the leave of the trial Court was not first obtained even through the unnamed plaintiffs had authorised the suit as in the case in hand.

In the light of the previous decisions of this Court and interpretation of similar provision in High Court Rules, the interpretations of the Order 12 Rule 8 of the Federal High Court Civil Procedure Rules by the Court below in this matter is erroneous.

Order 12 Rule 8 of the Federal High Court Civil Procedure Rules 2000 having used the word ‘may’ is permissive and not mandatory. Hence it is not a must that the named plaintiffs suing for themselves and unnamed plaintiffs in a Class suit obtain the leave of the Court before suing. The provisions of Order 12 Rule 8 which is the relevant law in this appeal is in pari materia with Order 13 Rule 14 of Lagos State High Court (Civil Procedure) Rules 1972.

It reads:- Where more persons than one have the same interest in one suit, one or more of such persons may with the or approval of the Court, be authorised by the other persons interested to sue or to defend such suit, for the benefit of and on behalf of all parties so interested. The provision of the High Court of Lagos Rules were interpreted in the case of Otapo v Sunmonu (1987) 5 SC 228 as follows: “The pleadings and the proceedings in the trial Court below show that the action was filed and prosecuted to judgment in a representative capacity.

It is true that in keeping with Order 13 Rule 14 that it is more elegant for a plaintiff suing in a representative capacity if he desires leave to sue in that capacity to make an application simpliciter seeking leave to sue in that capacity. Unlike the provision of Order 3 Rule 2(1), the provision of Order 13 Rule 14 is couched not in mandatory but in permissive terms.

Again this Court further held: “This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for the obtained.” It would be otherwise if the case is not made out in a representative capacity. Onwunala Ndidi and Onwunalu v. Osademe (197) 1 ALL NLR 14 at 16.

As judgment in the instant appeal was given in favour of the plaintiff by the trial Court, in a representative capacity, it is for the benefit of not only the plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties.” This Court in the same case of Otapo v Summonu (supra) per Uwais, JSC as he then was further held: “In the instant case, the action was described in the writ of summons as having been brought in a representative capacity.

I have also pointed out that averments in paragraph 1 of the amended Statement of claim that Plaintiff brought the action in a representative capacity. The writ of summons complied with Order 3 Rule 2(1) of the High Court of Lagos State. The trial Judge was right therefore regarding the action which was brought and fought throughout in a representative capacity as a representative action – See Lediju v. Odulaja 17 NLR.15 Afolabi v. Adekunle (1983) 8 S.C 98 Dokubo V. Bob-Manuel (1967) 1 All NLR.113 Ayeni v. Sowemimo ​ (1982) 5 SC 60”.

The Supreme Court in the same Otapo v Summonu held further thus: “The West African Court of Appeal in Divisional Chief Gbogbonolulu v. Head Chief Hodo (1941) 7 WACA 164 held that it is the duty of the Courts to aim at doing substantial justice and therefore where necessary to make any formal amendment to reflect the capacity in which parties sue. This Court has in many cases decided that it will not disturb the capacity in which parties sued or are sued even where they failed to obtain an order of the Court enabling them sue or defend in that capacity; Afolabi v.

Adekunle (1983)2 SCNLR 141 and 154. Significantly the learned Justices in Otapo v Sunmonu were emphatic that the benefit of the suit enures for all the parties both named and unnamed.

The Court held: “As judgment in the instant appeal was given in favour of the plaintiff by the trial Court, in a representative capacity, it is for the benefit of not only the Plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties.” ​The Court of Appeal while interpreting provisions of Order IV Rule 3 of the High Court Rules, Cap 61, Laws of Eastern Nigeria, 1963 which is also impari materia with Order 12 Rules 8 of the Federal High Court (Civil Procedures) Rules 2000 in the case of Egom vs.

Eno (2008) 11 NWLR (Pt.1098) page 320 held that it is not mandatory for the named plaintiffs to obtain the leave of the Court before signing for the unnamed plaintiffs and that a case so instituted is for the benefit of all. ​Clearly, the case of Otapo v Sunmonu (Supra) seemed to have had the present situation in mind as the decision therein has settled the current dispute.

Stated another way and for further elucidation, in the case of Otapo v Sunmonu (Supra), notwithstanding that the plaintiff failed to obtain the leave of the High Court to initiate the case in a representative capacity the Supreme Court held that the benefits enured for both the named plaintiff and the unnamed plaintiffs. In essence, the Court held that the provision of Order 13 Rules 14 of the Lagos State High Court (Civil Procedure) Rules (which is impari-materia with Order 12 Rule 8 of the Federal High Court Civil procedure Rules 2000) is permissive and not mandatory.

This Court had gone straight to the point was and still motivated by the desire to do substantial justice and avoid causing injustice or miscarriage of justice. See also the cases of Ifekwe v. Madu (2000)14 NWLR (Pt.688) 459; Awudu v. Daniel (2005) 2 NWLR (Pt.909)199; Salisu v. Odumade (2010) 6 NWLR (Pt.1190) 228 S.C and Ibezim v Ndulue (1992) 1, NWLR (Pt.216) Pg.173. The fact of the matter is that, in this instance obtaining the leave of Court to sue in representative capacity is a surplusage and superfluous.

On whether leave of Court is required where a plaintiff institutes action in a representative capacity, see the Court of Appeal decision per Hon. Justice Onalaja J.C.A in the case of Bankole V. Dada (2003)11 NWLR (Pt.830)174. On representative action at page 135 COMMENTARIES FROM THE BENCH PART II on the topic PARTIES TO CIVIL ACTION by ONALAJA, JCA it was stated as follows:-

“Where a plaintiff or plaintiffs institute an action in a representative capacity, there is the school of thought that the leave of the Court is required. With respect, I consider the leave superfluous, the duty of such plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim.

But where the plaintiff requires that the action be binding on the defendant in a representative capacity then the leave of the Court is required to sue the defendant in a representative capacity, This without prejudice to the fact the capacity still has to be pleaded in statement of claim”. The same Court in MR. ISRAEL IDOWU & ORS v.

THE REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA AND OVERSEAS: (2012) LPELR-7865(CA) stated the following observation: “Representative actions may be accommodated without obtaining an order of Court for bringing the action in a representative capacity. Once an action is constituted in such a manner, the option is to amend the proceedings to reflect the representative capacity or to allow the action to survive in a representative capacity, not to strike out or dismiss the action.

See OGBOOGBOLU VS HODO (1941) 7 W.A.C.A. at 164 in effect, the issue of whether an action is brought in a representative capacity should not be rigidly enforced by the Court.” And this Court in a similar way held in the case of Mozie v Mbamalu 2006 15 NWLR (Pt. 1003) pg. 495 per Tobi, J.S.C. that: “The decision of this Court in Wiri v. Wuche (1980) 1-2 SC 1 comes to this: although leave is necessary at the trial Court to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court. In Oyewole v.

Lasisi (2000)14 NWLR (Pt.687) 342 the Court held that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt.688) 459, where the Court also held that failure to obtain the leave of Court to sue in a representative capacity is not fatal as vitiate the proceedings.” Contrary to the position of the Court below, this Court in the case of Jack v.

Whyte (2001)3 S.C 121 this Court held as follows: “Learned counsel for the respondents, Okocha, SAN, quite helpfully conceded that the Court of Appeal perhaps by an inadvertent slip or mistake, did not take notice of the order made by Opene J (as he then was) that the defendants/appellants be sued in a representative capacity.

The senior advocate went further and submitted that it was settled law that failure to obtain leave to sue in a representative capacity was not fatal to and would not vitiate the validity of the action, Where there was no objection to the capacity in which plaintiff sued and in which the defendant was sued and the suit was prosecuted in that capacity to judgment, or was capable of being so easily understood it will be presumed that leave to sue in such representative capacity was granted Mr.

Okocha, SAN, referred to Order IV Rule 1 High Court Rules Cap 61 Laws of Eastern Nigeria and Order II Rule 7 (I) Rules of the High Court of Rivers State. See also Chief P.O. Anatogu & Ors v. Attorney General, East Central State & Ors (1976) 11 SC 109 and Joseph Afolabi and Ors v. John Adekunle & 1 Other, (1983)2 SCNLR 141 (198.3) 8 S.C. I agree that where a representative order would have been granted had it been asked for failure to obtain it will not vitiate the action. See Bulai v. Omoyajowo (1968) 1 All NLR 72.

It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of Court before filing his suit The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this Court does not and will not upset on a bare objection of failure to obtain the approval of the Court. See Wiri and Ors. v.

Wuche and Ors. (1980) 12 SC 1” This Court reiterated the same position in the case of Mbanefo v Molokwu (2014) 1-2 SC (Pt.11) 137 per Peter-Odili, J.S.C held thus: “Therefore the Agbalanze was bound upon the action as mouthed by the first respondent as he was representing the society. He was not acting on his own and the situation is not changed because no leave was sought and obtained before such a representation was made”.

Clearly, the Court below followed the wrong path hence the ensuing erroneous conclusion which is not supported by the well established decisions of this Court in the guiding light of what should obtain when a Court is faced with a scenario akin to the present. ​A step back in time into the record shows that the cross-appellant attached to one of their affidavits a letter tagged ‘authorization letter’ dated 28/4/2003 which was duly signed by the officers of the named and the unnamed cross-appellants.

The letter is a clear mandate issued on the eleven named plaintiffs to represent the unnamed plaintiffs. The letter was established on the Affidavit dated 14/10/2003. Significant, is the fact that neither the Appellant/1st respondent nor any of the unnamed plaintiffs objected to the said letter or challenged its validity at the lower Court as to substance or form. It even needs to be stated that the aforementioned letter or other evidence are clear indications that the action was a representative suit even though such written authorization is not required as an oral authorization suffices.

In emphasis, the class suit or representative action by its very nature permits any member of the group individually, unchosen and masked and without any organisation of the close or prior consent of others, to step forward and sue on behalf of all, in the sense that if he is successful all may participate in the result. This Court stated it as it really is in the case of Atane & Anor v.

Amu (1974) 10 SC 163 at page 168 where Irikefe, JSC (and he then was) stated thus: “We are equally satisfied that in a representative action such as this, the only legal burden cast upon a plaintiff is that of establishing the existence of a common interest and a common grievance. Such a plaintiff in fact not bound to obtain the consent of others whom he rightly represents.

The position is otherwise in the case of a representative defendant” Again brought to the fore is the fact that the appellant/1st Respondent has no locus to challenge the authority of the 11 named cross-appellant/plaintiffs to represent the unnamed plaintiffs. It is for the above position that I am persuaded to the dictum of Agbo JCA in U.T.B. v.

Koleoso (2006) 18 NWLR (pt. 1010) 1, thus: “In the instant case, the non-obtaining of the leave of other defendants by the defendants on the record to defend the suit in a representative capacity does not in any way affect the competence of the suit filed.

It is certainly not a threshold matter as suggested by the appellants and it is not required of the respondent to force the persons represented to avail the appellants of the authority they contend is a condition precedent for proper representation.” The plaintiffs have no obligation to seek the leave of the mass of defendants to sue them in a representative capacity and it will be strange indeed for a Court to avoid an action because a hostile defendant says he, the defendant sued, has failed to obtain the leave of other defendants to defend in a representative capacity.

The plaintiff is not expected to call a meeting of his adversaries to enable them regularise his suit Any of the represented defendants who feels an aversion to the representation can apply to be joined directly. As rightly stated by the Court below, rules of Court relating to representative suits are rules of convenience that cannot be allowed to frustrate proceedings in any suit. Whether it is presumable that the 2nd and 3rd appellants have authority to represent all the shareholders of the 1st appellant Bank.

This issue has its origin at page 31 of the record of proceedings where as part of his ruling the trial judge had said. “It is presumable that the 2nd and 3rd respondents are Chairman and Managing Director respectively of the 1st respondent possess representative capacity and can act on behalf of the shareholders of the company”. See also the Court of Appeal case of ALHAJI (HON) ISHOLA LAWAL & ORS. v. ATTORNEY GENERAL OF KWARA STATE & ANOR (2010) LPELR-4425 (CA).

The case of Governor of Ekiti State v Hon Kola Fakiyesi (2009) LPELR-8353 aptly captured the narrative thus: “Where there is no authorization and leave of Court to sue in a representative capacity; where the pleadings and the evidence conclusively show a representative capacity the trial Court can justifiably enter judgment”. The Supreme Court has held that the adverse party lacks the locus standi to challenge the authority of named plaintiffs to represent the unnamed plaintiffs. In S.P.D.C.N LTD v.

EDAMKUE (2009) 14 NWLR (PT.1160), page 1 at PG-27-28, this Court per OGBUAGU, JSC held thus: “as regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the Appellant has no locus standi, to object to the said representation not being a member of those families or communities.

It is settled that once the plaintiff/plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued.

It will be futile for a defendant who is not one of those the Plaintiff/Plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect defendant adversely. See the case of CHIEF P. C. ANATOGU & ORS VS ATTORNEY-GENERAL OF EAST CENTRAL STATE (1974) 4 ECSLR 36; (1976) 11 SC 109-ONYEMUZE & ORS v. OKOLI & ORS (1973) 3 ECSLR 150; ALHAJI/CHIEF OTAPO & ORS vs.

CHIEF SUNMONU & ORS (1987) 2 NWLR (PTS8) @ 603; (1987) S SCJN; (1987)2 N5CC VOL 18 P, 677 and DANIEL AWUDU & ANOR v. RAUTHAN DANIEL & ANOR ​ (2005)2 NWLR (PT.90) 199 @ 222-223 C.A. citing the cases of ANATOGU vs. ATTORNEY-GENERAL OF EAST-CENTRAL STATE; CHIEF OTAPO vs. CHIEF SUNMONU (SUPRA); BUSARI vs. OSENI (1992) 4 NWLR (PT.23) 557.” There is no contesting the right of the unnamed cross-appellants just like the named cross-appellants to be heard in a representative suit.

This right is guaranteed under Section 36 of the Constitution and the Court owes a duty to protect that right and give voice to the expression of this freedom by the unnamed cross-appellants. The Court of Appeal in the case of Ibigbami v Military Governor Ekiti State (2004) 4 NWLR Pt. 863 pg. 243 held that: “in a representative action every member of the class represented by the main plaintiff is equally a party to the action though unnamed.

See in Re UGUDU (1988) 5 NWLR Pt. 93 pg 189 and Otapo v Sunmonu (1987) 2 NWLR Pt. 158 at 58.” This Court per Obaseki, JS.C. gave blessing to this position of the law in the case of Otapo v Sunmonu (supra) as follows: “A hearing can only be fair when all parties to the dispute are given a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing.

When therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing.

Without fair hearing, the principles of natural Justice are abandoned, and without the guiding principles of natural justice concept of the rule of law cannot be established and grow in the society.” I posit that the Court has a duty to allow parties to contest their dispute when there is evidence to show that they wanted their common grievances resolved once and for all in a bid to do substantial justice and save multiplicity of action even without the leave of the Court.

To ensure substantial justice, the Court, even where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, encourages parties to amend their processes. The Court may go further to order a party to amend its capacity to accommodate the unnamed persons in deserving cases without leave. This is to meet the end of Justice.

Ogunwumiju, J.C.A (as he then was) in the case of BAMISILE V OSASUYI (2007) 9 NWLR PT 1042 p.225 held thus; “It is trite that where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, the Court shall aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is instituted so as to bring it in line with the evidence even without any formal application.” To underscore the desirability and enthronement of substantial justice, the Courts have the discretion where a plaintiff had sued in a personal capacity instead of a representative capacity allow the plaintiff to amend the process to reflect the evidence and the Court proceed thereafter to enter judgment for the plaintiff as representing his family or community.

I rely on the following cases: OSUNRINDE & 7 ORS vs. AJAMOGUN (1992) 6 NWLR (Pt. 246) 156; (1992) 7 SCNJ (Pt.1) 79 @ 114-115. In fact, in the case of PRINCE LADEJOBI & 2 ORS vs. OTUNBA OGUNTAYO & 9 ORS (2004) 7 SCNJ 298 @ 310-311, (2004) 18 NWLR (PT 904) 149 – per UWAIFO, JSC it was held that the law is that a person has the right to protect his family’s interest in a property or title and can sue for himself and on behalf of his family in a representative capacity. The case of SOGUNLE VS. AKERELE (1967) NMLR 58; NTA vs.

ANIGBO (SUPRA); MELIFONWU vs EGBUJI (1982) 9 SC 145 @ 159 and CHIEF ATANDA & ORS vs AKUNYUN (stated therein as Olarewaju) (1988) 4 NWLR (PT.89) 394 were therein referred to. (It is also reported in (1988) 10-11 SCNJ 11). See also the case of COKER vs. OGUNTOLA & ORS (1985)1 ALL NLR (PT 1) 278, (1985) 2 NWLR (PT.5) 87; ALHAJI GEGELE vs. ALHAJI LAYINKA & 6 ORS (1993) 3 SCJN @ 45 reported as Layinka vs Gagele (1993) 4 KLR 5 (1993) 3 NWLR (PT 283) 518 and AWUDU & ANOR vs DANIEL & ANOR (2005) 2 NWLR (PT.909) 1999 @ 222- 223 C.A.

The cross-appellant certainly has made the point of the meritorious character of this cross-appellant. I too allow it and I abide by the consequential orders made. Cross-appeal allowed.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading in its draft form, the lead judgment of my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC just delivered. I am in complete agreement with his reasoning and conclusion that the cross- appeal of these Respondents/Cross-Appellants has merit and should be allowed. The position of the law is trite that the rule permitting representative action is a rule of convenience. The essence is mainly to curtail multiplicity or influx of suits on the same interest or matter.

Such representative action is most appropriate once there is a common interest involving many aggrieved persons who are ready to enforce their rights in Court. See Durbar Hotel Plc Vs. Ityough (2011) 9 NWLR (Pt.1251)41; Adeleke Vs. Anike (2006)16 NWLR (Pt.1004)162; Anatogu Vs. Attorney-General East Central State (1976) 11 SC 109. It follows therefore that the rule governing representative action must necessarily be treated with some air of flexibility and liberality and not as a matter of strict rules which requires rigid compliance.

In the case of Olatunji Vs. Registrar Co-operative Society (1968) NMLR 393, this Court listed the requirements which must be available before a suit is commenced in a representative capacity, as follows: (1) There must be numerous persons interested in the case or the side to be represented: All those interested must have the same interest in the suit.

That is, their interest must be joint and several. (2) All of them must have the same grievance. (3) The proposed representative must be one of them (4) The relief or reliefs sought must be in its nature beneficial to all the persons being represented. See also Atanda Vs. Olarenwaju (1988)4 NWLR (Pt.89)394.

In the instant case, the named Cross-Appellants commenced the action for themselves and on behalf of slightly over 1000 of their colleagues who were relieved of their employments in one fell swoop. They all share a common interest which is to be reinstated to their job with attendant benefits. It would be inefficient management of judicial time and resources to have each of them initiate individual suits on the same subject matter which could be conveniently determined in a single action.

To this end, I hold the firm opinion that the Court below was wrong to have held that the judgment delivered in the suit inure only to the named applicants. There is no strict applicability of the rule for leave or authorization to sue in a representative capacity. All the aggrieved applicants, named and represented, shall be bound by and take benefit of the judgment. The cross-appeal is meritorious and it is hereby allowed by me. I also make no order as to cost. Appeal allowed.

ABDU ABOKI, J.S.C.: I had the benefit of reading in draft, the judgment prepared by my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. just delivered. I agree with the reasoning and conclusion that the cross-appeal is meritorious and ought to be allowed. I accordingly allow it.

The Cross-Appellants were all members of Staff of CBN. Between 1996 and 2003, the Federal Government gave various written directives to the CBN to terminate the appointments of some of its staff. The Cross-Appellants and over one thousand other unnamed Cross-Appellants were prematurely laid off.

Aggrieved by the action of the CBN, the Cross-Appellants brought a representative action for themselves and on behalf of the over one thousand staff of the CBN who were laid off.

​The CBN by a preliminary objection, challenged the competence of the action on the basis that there is neither an authorization nor approval of the trial Court to commence the suit in a representative capacity. The trial Court ruled against the CBN.

Dissatisfied with the ruling, the CBN appealed to the Court of Appeal. The Court below refused all the grounds of the appeal, but held that the suit inures for the benefit of only the named Eleven Plaintiffs (Cross-Appellants).

The Cross-Appellants are aggrieved by the part of the decision that the suit inures for the benefit of only the named Eleven Plaintiffs (Cross-Appellants), and have cross-appealed to this Court.

They raised a sole issue for determination, to wit: “Whether given the special circumstances and facts on record, the Cross Appellants’ action for themselves and on behalf of the slightly over 1,000 (one thousand) rationalized staff of the 1st Respondent enures only for the eleven named Applicants?”

​The CBN (Cross Respondent) also distilled a sole issue, that is: “Whether this suit inures in favour of only the eleven named Plaintiffs (now Cross-Appellants) and not for the benefit of the other unnamed persons in the absence of any authorization and/or leave to sue in a representative capacity?”

The nature of a representative action is such that given a common interest and a common grievance, a representative suit is appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See:Oseni & Ors v.

Dawodu & Ors (1994) 2795 (SC) Various States High Court Rules in Nigeria have enacted provisions which are to the effect that, where more persons than one have the same interest in one suit, one or more such persons may, with the approval of the Court be authorised by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.

By the provisions of Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000, which was the applicable Rules of the Federal High Court at the time this suit was initiated, where more than one persons have the same interest in one suit, one or more of them, may, with the approval of the Court, be authorized by the other persons interested to sue or defend the suit for the benefit of, or on behalf of all the parties so interested. ​I should think that that Rule, stated above in its words and application is permissive.

The Rule should be seen as not rigid but as flexible. it is often described as a tool of convenience which should be applied, nor in any strict or rigorous sense but according to its permissive scope. It is for this reason, that the Courts have come to the conclusion that failure to comply therewith ought not to make the action incompetent. In Otapo v.

Sunmonu & Ors (1987) LPELR-2822 (SC), this Court outlined the principles applicable, where a party failed to obtain leave to sue in representative capacity, and stated that: “It is settled that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. Our Courts do not easily wish to deprive citizens who come before them of their right of action. I never would.

This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was sought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained. Thus, it is required that a plaintiff should show on his writ and his pleadings that he is suing in a representative capacity.

Yet, even at that where a writ of summons is defective, to ensure that substantial justice is done, the Courts, rather than declare the suit incompetent, would allow amendment of the writ which is defective only in its failure to state the capacity in which the action is brought” Applying the foregoing principles, I would not declare this action incompetent, even though it is not evident that leave was sought and/or obtained before the Plaintiffs Cross-Appellants instituted their suit in a representative capacity.

There is no doubt that all over a thousand Staff of the CBN have a common interest, and claim the same right and remedy in their writ of summons and statement of claim. In the action, they expressed their desire to sue in representative capacity and so stated in the processes filed and served. On the authorities alluded to in this judgment, the Court below was wrong to hold that the judgment delivered inured only to the named Applicants. All the Cross Respondents, named and represented, shall be bound and shall take benefit of the judgment.

​It is for these reasons, and for the fuller reasons enunciated in the lead judgment of my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C., that I agree that there is merit in this cross-appeal. It is hereby allowed by me. I also abide by the consequential orders contained in the lead judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, KEKERE-EKUN, JSC granted me the privilege of reading before now, the leading judgment prepared and rendered in this appeal. I am in complete agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Calabar Division, delivered on 3/9/2015 affirming the judgment of the Federal High Court, Calabar Judicial Division per A.F.A. Ademola, J. delivered on 1st June 2010.

The facts that gave rise to this appeal are as follows: The Peoples Democratic Party (PDP) held primary elections, in December 2006 to determine its candidate for the Uyo Federal Constituency of Akwa Ibom State in the General Election fixed for April 2007. The 1st respondent, Hon. Emmanuel Bassey Obot, emerged winner and was duly presented to the Independent National Electoral Commission (INEC) as the party’s candidate. A dispute however arose when the 1st respondent’s name was substituted with the name of another candidate

​On 5/12/2007, the Court of Appeal, Calabar Division in Appeal No. CA/C/45/2007, delivered judgment in favour of the 1st respondent and ordered the President of the Court of Appeal to set up a new Tribunal to try the 1st respondent’s petition in Uyo. The appellant at the time was the Attorney General of the Federation and Commissioner for Justice (AGF).

It was the 1st respondent’s contention that in his capacity as AGF, he wrote to the President of the Court of Appeal (PCA) urging His Lordship not to comply with the judgment ordering the constitution of a new panel in view of a petition he had received from one Bassey Etim, the person who had been substituted for the 1st respondent. The Hon. PCA however went ahead and complied with the order of the Court and set up the new panel.

​The new panel delivered judgment on 18th April 2008 and ordered that the 1st respondent be sworn into the House of Representatives as the member representing Uyo Federal Constituency. An appeal to the Court of Appeal was unsuccessful. The appeal was dismissed with an order that INEC should issue a Certificate of Return to the 1st respondent.

It was contended that by a letter dated 16/2/2009, the appellant wrote to the Chairman of INEC, Maurice Iwu, urging him not to obey the judgment of the Court of Appeal, which he described as “an obvious desecration of the Institution of the Judiciary.” He also wrote to the Speaker of the House of Representatives advising him not to obey the judgment but “to allow the status quo ante to remain until the last or final word is heard from the Supreme Court on the issue.”

It is noteworthy that by Section 246(2) of the 1999 Constitution, as amended, the decisions of the Court of Appeal in respect of Appeals arising from National and State Houses of Assembly elections are final.

Consequent upon the letters written to the Chairman of INEC and the Speaker of the House of Representatives, the 1st respondent was neither issued with his Certificate of Return nor was he sworn into office. He therefore instituted an action before the Federal High Court, Calabar Judicial Division vide an Originating Summons dated 15/5/2009, against the appellant and 2nd respondent. The appellant was sued in his capacity as Attorney General of the Federation as 1st defendant and in his personal capacity as 2nd defendant.

The 1st respondent, as plaintiff, raised the following questions for determination: 1.

Whether the conduct of the 2nd Defendant in purported exercise of the powers of the 1st Defendant in the letters of 8th January 2008 and 16th February 2009 does not constitute abuse of the powers conferred by Section 150(1) of the 1999 Constitution and do not undermine and/or subvert the administration of justice, the rule of law and independence, authority and integrity of the judiciary established under Section 36(1) of the said Constitution which he is obliged to uphold and defend and, particularly, to breach of Section 149 of the said Constitution. 2.

Whether, in the circumstances of the said letters aforesaid, the 1st Defendant is a fit and proper person to hold office as the 1st Defendant in conformity with Section 149 of the 1999 Constitution.

In the event that the questions were answered in his favour, he sought the following declarations: 1. That the 2nd Defendant undermined and/or subverted the rule of law, the due administration of justice and the independence, authority and integrity of the judiciary in the letters of 8th January 2008 and 16th February 2009 written by him in the capacity of the 1st Defendant 2. That the 2nd Defendant is not a competent, fit and proper person to hold and/or continue to hold office as the 1st Defendant having regards to the Oaths of Allegiance and Office. 3.

N100m damages against the Defendants jointly and severally. 4. Perpetual injunction restraining the 2nd Defendant from further and/or continued occupation of the office of the 1st Defendant and/or the discharge of the functions of the said office.

The Originating Summons was supported by an 18-paragraph affidavit and exhibits marked A-F, along with a written address. An application by the defendants for extension of time to file their Memorandum of Appearance was granted by the Court. Consequently, a Conditional Memorandum of Appearance was filed on behalf of both defendants by one Nene C.A. Akpan (Mrs) of the Federal Ministry of Justice, South-South Zone, Port-Harcourt. Between the filing of the Memorandum of Conditional Appearance on 3rd December 2009 and 31st March 2010, the said Mrs.

Akpan represented both defendants in Court and sought a number of adjournments at their instance. On 31/3/2010, she informed the Court of her intention to withdraw her appearance for the appellant (2nd defendant) in his personal capacity, having filed a written address the previous day on behalf of the 1st defendant alone. She was ordered to comply with the relevant rules of Court by filing a formal application and serving the parties, This was never done.

On 1/6/2010, the learned trial Judge entered judgment in favour of the plaintiff/1st respondent and made the declarations and orders sought in his favour. The appellant was dissatisfied with the decision and filed an appeal at the Court below. In a considered judgment delivered on 3rd September, 2015, the lower Court affirmed the judgment. The appellant is still dissatisfied and has further appealed to this Court vide his amended Notice of Appeal filed on 14/4/2016 but deemed filed on 27/5/2019. It contains 9 grounds of appeal.

At the hearing of the appeal on 20th September, 2021, OKON N. EFUT, SAN adopted and relied on the Appellant’s brief filed on 6/1/2017 and deemed filed on 27/5/2019, in urging the Court to allow the appeal. UWEMDIMO NWOKO, SAN, adopted and relied on the 1st Respondent’s brief filed on 1/8/2018 but deemed filed on 27/5/2019, in urging the Court to dismiss the appeal.

Learned counsel for the appellant distilled 5 issues for determination thus: (1) Whether the learned Justices of the Court of Appeal were right to hold that the appellant was granted fair hearing and thereby affirming the judgment of the trial Court, when the entire proceedings of the trial Court was tainted and vitiated by the non-service of the Originating Summons and subsequent hearing notices on the appellant, (Distilled from Grounds 1 and 2). (2) Whether the learned Justices of the Court of Appeal were right to affirm the trial Court’s order granting reliefs not claimed by the Plaintiff/1st Respondent against the Appellant (Distilled from Grounds 3 and 9). (3) Whether the Court below was right to hold that the trial Court had jurisdiction to entertain the suit, the subject matter of which was the alleged breach by the appellant of his Oath of Allegiance and Oath of Office, and the outcome of which had been overtaken by events (Distilled from Grounds 4, 5 and 7), (4) Whether Exhibit B, C, D being uncertified photocopies of Public Documents were admissible in evidence, having regard to Section 97, 109, 111 and 112 of the Evidence Act. (Distilled from Ground 6). (5) Whether the learned Justices of the Court of Appeal were right in affirming the order of the trial Court awarding exemplary damages in the sum of N50 Million against the Defendant/Appellant and 2nd Respondent, contrary to the legal principles and factors governing award of damages (Distilled from Ground 8)

The 1st respondent adopted the issues as formulated by the appellant. I shall consider issues 1, 3 and 4 first, as they address the competence of the suit and processes therein, followed by issues 2 and 5, which deal with the orders made by the learned trial Judge and affirmed by the Court below.

Issue 1 Relying on the authority of Skenconsult Vs Ukey (1981) 1 SC 6, learned counsel for the appellant submitted that service of originating processes is fundamental to adjudication and that where there is no evidence of service, the Court would have no jurisdiction to entertain the matter. He submitted that the record of appeal shows that service of the Originating Summons was effected on the office of the 2nd respondent in Abuja on one OKO CLETUS on 25/5/2009 and that there is no document in the record evidencing proof of service on the appellant.

He submitted that the appellant having been sued in his personal capacity was entitled to be served personally. He referred to Order 6 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009. He argued that in law, the person of the appellant is a separate entity from the office of AGF and therefore he ought to have been served personally. He referred to Section 150 (1) of the 1999 Constitution, as amended, and Sections 2 and 4 of the Law Officers Act Cap. L8 Laws of the Federation (LFN) 2004.

He submitted that having regard to the reliefs sought and the Orders made by the learned trial Judge, the appellant ought to have been given the opportunity of a fair hearing as envisaged by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

​Learned counsel submitted that it was evident from the record and the fact that Nene C.A. Akpan (Mrs), of counsel, filed a written address on behalf of the 1st defendant only, that she did not have the appellant’s authority to represent him and that he was not aware of the pendency of the suit and was therefore denied the opportunity of defending himself. He submitted that there was no evidence that hearing notices were served on him before judgment was entered against him.

He argued that the authorities relied upon by the lower Court to the effect that he had taken steps in the proceedings are not applicable to the facts of this case.

He submitted that MRS AKPAN having announced appearance for 1st defendant only at the proceedings of 31/3/2010, and having filed a written address on behalf of the 1st defendant alone on 30/3/2010, the Court ought to have satisfied itself that the appellant was personally served with hearing notices. He referred to Odutola Vs Kayode (1994) 2 NWLR (Pt. 324) 1 @ 15; Wema Bank vs Odulaja (2000) 7 NWLR (Pt.663) 1 @ 7; Saidu V. Mahmood (1998) 2 NWLR (Pt. 536) 130 @ 138-139 (Court of Appeal decision).

​In response, learned counsel for the 1st respondent submitted that there was no doubt, from the record, that the appellant was duly served with the Originating Summons and that he entered appearance through a counsel in his office. He submitted that the best evidence that a party has been put on notice of the institution of a suit against him, is his appearance in Court either personally or through his counsel.

He submitted that although service of process is fundamental to the jurisdiction of the Court, non-service or improper service can be waived by a defendant who may voluntarily submit to the jurisdiction of the Court and take part in the proceedings till judgment. He submitted that such a defendant cannot be heard as regards any objection relating to the service of process on him. He referred to Ogbuanyinya vs Okudo (1990) 4 NWLR (Pt.146) 551 @ 576; Husseini Isa Zakirai Vs Salisu Daa Azumi Muhammad (2017) 17 NWLR (Pt. 1594) 181 @ 230-231 H- E per Augie, JSC.

Relying on the authority of Job Charles Nig. Ltd. VS Okonkwo (2002) FWLR (Pt.117) 1007, he submitted that having submitted to the jurisdiction of the Court by entering appearance thereto and being represented by counsel, he is estopped from complaining about non-service. He also cited: N.U.B Ltd. Vs Samba Pet. Co. Ltd. (2006) 12 NWLR (Pt. 993) 98 @ 129 (F) & Odua Investments Co. Ltd. Vs Talabi (1991) NWLR (Pt.170) 761 @ 779.

​Learned counsel submitted that the essence of service of Court process is to put the other side on notice of the existence of a suit or a particular process and having entered appearance in the suit, the appellant can no longer complain. He noted further that the appellant failed to raise the issue of non-service at the earliest opportunity and before taking any steps in the proceedings. He observed that at the time service of the Originating Summons was effected, the appellant was occupying the office of Attorney-General of the Federation and Minister for Justice.

He argued that it is absurd for the appellant to acknowledge service on him in his official capacity but to deny personal service.

​Learned counsel submitted that a case is only authority for what it actually decided. He submitted that in the cases relied upon by the appellant, the issue of a party being sued in a dual capacity did not arise and that the said cases are not applicable in the circumstances of this case. He submitted that there is nowhere that the appellant challenged the authority of Mrs. Nene Akpan, of counsel, to represent him. He submitted that both the parties and the Court are bound by the printed record of proceeding.

He submitted further that a Memorandum of Appearance was filed on behalf of the appellant in his dual capacities and that although learned counsel intimated the Court that she intended to withdraw appearance for the 2nd defendant, she never did so, He referred to Order 9 Rule 36(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009 and argued that the effect of failure of learned counsel to formally withdraw appearance for her client is that the said counsel shall be considered as the party’s legal practitioner for the duration of the suit.

With regard to the contention that the appellant was not served with hearing notices of subsequent dates in the proceedings, learned counsel submitted that it is rather incongruous for the appellant to allege that he was not served with the originating processes and at the same time complain that he was not served with hearing notices.

Relying on the dictum of Ngwuta, JSC (of recent blessed memory) in NACB Ltd VS Ozoemelam (2016) 9 NWLR (Pt. 1517) 376 @ 407-408, he submitted that it is the duty of a party, either as plaintiff or as defendant, who is aware of the pendency of a suit, to check with the Registry of the Court if nothing has been heard after a reasonable lapse of time to ascertain the current status of the case. He noted that in any event, the appellant was duly represented by counsel who had not formally withdrawn representation for him.

He submitted that in the circumstances of this case, the appellant was accorded a reasonable opportunity of being heard and failed to take advantage of it. He submitted further that fair hearing is not a magic wand to be waved according to whims and caprices of a litigant and that where he fails to take advantage of the opportunity of being heard, it does not lie in his mouth to complain of a denial of fair hearing. He referred to: Pam vs Mohammed (2008) 16 NWLR (Pt.1112) 1 @ 49 A-C per Oguntade, JSC; Kolo vs C.O.P. (2017) 9 NWLR (Pt. 1569) 118 @ 157-158 D- C.

He urged the Court to resolve this issue against the appellant,

Resolution of Issue 1 It is well settled beyond any equivocation, that the service of an originating process on a named party, who ought to be served, is an indispensable aspect of any adjudication. It goes to the root of the Court’s competence and jurisdiction to entertain the suit. Service of an originating process accords with the guarantee of the right to fair hearing as provided for in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

It notifies the party of the institution of an action against him and affords him the opportunity, if he so desires, to defend the claim. Failure to serve an originating process renders the entire proceedings a nullity, See: Kida vs Ogunmola (2006) 13 NWLR (Pt. 997) 377, Obimonure vs Erinosho (1966) 1 ALL NLR 250; Skenconsult vs Ukey (1981) 1 SC 6 @ 26; Mgbenwelu vs Olumba (2016) LPELR-42811 (SC) @ 36-37 E -D.

The circumstances of the instant appeal are somewhat unique because at the time the action was instituted at the trial Court, the appellant occupied the office of Attorney General of the Federation and Minister for Justice. He was sued in a dual capacity - in his official capacity as Attorney General as 1st defendant and in his personal capacity as 2nd defendant.

​It is not in dispute that the Originating Summons was duly served on the office of the Hon. AGF. By a motion on notice filed on 3/12/2009 one Mrs. Nene C.A. Akpan, of counsel, sought an order for extension of time within which the 1st and 2nd defendants could file their Memorandum of Appearance out of time and an order deeming the Memorandum of Appearance attached thereto as having been properly filed and served. In the affidavit in support of the application, the said Nene C.A. Akpan deposed as follows: “1.

That I am Senior Counsel in the Chambers of the 1st and 2nd Defendants at their South-South zonal office, Port Harcourt, and by virtue of my duties, conversant with the facts of this case. 2. That I have the consent of the 1st and 2nd Defendant/Applicants to depose to this affidavit. 3. That owing to delay in the South-South zonal office receiving the Court processes in this action by the Federal Ministry of Justice, Abuja, I could not file the Memorandum of Appearance for the 1st and 2nd Defendants within time. 4.

That in view of the time lapse as mentioned in paragraph 3 above, it is necessary to apply for leave for extension of time to file same and same is hereby annexed and marked as Exhibit 1. 5. That the interest of justice will be better served if this application is granted 6. That the Plaintiff/Respondent will not be prejudiced if this application is granted 7. That I swear to this affidavit in good faith conscientiously believing its contents to be true and in accordance with the Oaths Act, 1990.” (Emphasis mine)

​I have taken the time to reproduce the affidavit in extenso because it is germane to the issue of non-service raised by the appellant. In paragraph 2 thereof, the deponent states categorically that she has the consent of both defendants to depose to the affidavit. In paragraph 3, she admits that the processes were duly served on her clients and explains the reason for the delay in filing the Memorandum of Appearance on their behalf, paragraph 7 she avers that the affidavit is deposed to in good faith while believing its contents to be true.

An affidavit consists of averments deposed to under a solemn oath. In the absence of any challenge to averments therein, the Court is bound to accept them as true.

The implication or legal effect of an oath is to subject the person who took the oath to penalties for perjury in the event that the averments or testimony turn out to be false. See: Akpatason Vs Adjoto & Ors. (2019) LPELR-48119 (SC) @ 15 D-E; Chukwuma vs Nwoye & Ors. (2009) LPELR-4997 (CA); Action Congress & Anor. vs INEC (2007) LPELR-66 (SC) @ 88 A-C.

Having averred that she had the consent of both defendants to depose to the affidavit and having admitted service of the originating processes on both, it no longer lies in the mouth of the appellant to contend that he was not served. He did not, at any stage, challenge the authority of Mrs. Nene Akpan, to represent him in the proceedings. The Memorandum of Appearance dated 3/12/2009 states: “Please enter a Conditional appearance for the above-named sued as the Defendants in this action.”

​Even though a Conditional Memorandum of Appearance was filed, no step was taken to challenge service of the originating processes on either of the defendants nor to challenge the Court’s jurisdiction to entertain the suit. It is also on record that on 3/12/2009 Mrs. Nene Akpan announced appearance for both defendants and sought a short adjournment to enable her respond to the plaintiff’s originating papers and his written address. The suit was adjourned to 18/1/2010. After several more adjournments, the matter came up on 4th March 2010 for the adoption of written addresses.

Mrs, Akpan announced appearance for both defendants. The following exchange ensued:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“Mrs. Akpan: Due to some unforeseen circumstances, l apply for 14 days to file our written address. U. Nwoko: I send my credentials to Mrs Akpan and concede the 14 days to her. Court: Mrs. Akpan is given 14 days to file and serve her written address in this suit (ii) Suit adjourned to 24/4/2010 (Sic: 24/3/2010) for adoption of address by counsels (sic).”

By this, it is evident that after filing the Memorandum of Appearance, further steps were taken on behalf of both defendants to defend the suit.

​On 24/3/2010, the suit was further adjourned to 31/3/2010. On the said date, Mrs. Akpan informed the Court orally of her intention to withdraw her appearance for the 2nd defendant. The suit was adjourned to 29/4/2010 to enable Mrs. Akpan file and serve the necessary application on the parties, including the 2nd defendant. On 29/4/2010 the suit was adjourned to 11/5/2010 for the adoption of written addresses, as Mrs. Akpan was absent due to ill health as informed by the Court Registrar. On 11/5/2010, learned counsel was again absent. The plaintiff’s counsel adopted his written address.

The Court invoked the provisions of Order 22 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009 and deemed the written address filed by Mrs. Akpan on behalf of the 1st defendant as adopted and thereafter reserved judgment to 1st June 2010.

Learned counsel for the 1st respondent referred to Order 9 Rule 36(1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009, which provides as follows: “Rule 36(1) Where a legal practitioner who has acted for a party in a cause or matter ceases to act and the party has not given notice of change in accordance with Sub-rule 1 of Rule 35 of this Order, the legal practitioner may apply to the Court for an order declaring that the legal representative has ceased to be the one acting for party in the cause or matter and the Court may make an order accordingly. (2) An order under Sub-rule 1 of this rule shall not be made until the legal practitioner serves on every party to the cause or matter a copy of the notice otherwise he shall be considered the legal practitioner of the party for the remaining duration of the cause or matter.” (Emphasis mine) Learned counsel also referred to the case of Magna Maritime Ltd. vs Oteju (2005) NSC QR (Pt.1) 295 @ 317 H, where this Court held: “A Court of law can indulge a party only within the confines of its rules.

In other words, a Court of law can indulge a party in so far as its rules permit. Where Rules of Court in line with the fair hearing principles order a specific conduct on the part of the parties, the Court has a duty to enforce the rules. In such a situation, a defence of fair hearing is not available to the aggrieved party because the rule itself has complied with fair hearing.” The authority is quite apposite to the facts at hand. Having filed a Memorandum of Appearance on behalf of both defendants, Mrs. Nene Akpan was the counsel on record for both parties.

On 31/3/2010, when she orally informed the Court of her intention to withdraw appearance for the 2nd defendant, she was ordered to comply with the rules of Court and put the parties, including the 2nd defendant, on notice by filing a formal application. She failed and/or neglected to do so. By virtue of Order 9 Rule 36(2) of the Federal High Court Rules reproduced above, she remained the counsel on record for both parties. From the various proceedings leading up to the delivery of the judgment, it was evident that Mrs.

Akpan was fully aware of the various dates to which the case was severally adjourned. The appellant’s contention of non-service of hearing notices therefore has no leg to stand on. The allegation that there was a breach of the appellant’s right to fair hearing is unfounded in my humble view. The appellant was duly represented by counsel, submitted to the jurisdiction of the Court, but failed to avail himself of the opportunity of being heard. He is deemed to have waived any alleged irregularity in the service of the originating processes on him.

See: Zakarai vs Muhammad (2017) 17 NWLR (Pt.1590) 181 @ 230-231 H-E; N.B.C. vs Ubani (2014) NWLR (Pt1421) @ 449 A-E. It is too late in the day to complain. See: Job Charles Nig. Ltd. Vs Okonkwo (2002) FWLR (Pt.117) 1007. This issue is accordingly resolved against the appellant,

Issue 3 In support of this issue, it is submitted on behalf of the appellant that the main complaint before the trial Court was that the appellant had acted in breach of his oath of office as prescribed by Section 149 of the 1999 Constitution, as amended. ​Learned counsel submitted that the proper forum for such a complaint is the Code of Conduct Tribunal established under the Constitution.

He submitted further that the allegations contained in paragraph 13 and the following paragraph of the 1st respondent’s affidavit in support of the Originating Summons (also erroneously numbered 13), border on criminality and constitute a breach of paragraph 1 of the 5th Schedule to the Constitution – a matter within the exclusive jurisdiction of the Code of Conduct Tribunal. He referred to Paragraph 15(1) of Part 1 of the 5th Schedule as well as paragraph 18 thereof, to contend that the reliefs sought by the plaintiff could only be granted by the Code of Conduct Tribunal.

He noted that by Paragraph 6 of Part II of the 5th Schedule, the Attorney General of the Federation is defined as a Public Officer for the purposes of the Code of Conduct for Public Officers.

Learned counsel submitted that there is nothing in Section 251 of the 1999 Constitution, as amended, that confers jurisdiction on the Federal High Court to adjudicate in a matter involving a breach of the Code of Conduct by any Public Officer. He submitted that the orders made preventing the appellant from holding any public office in Nigeria, were made without jurisdiction. He referred to Nwankwo Vs Nwankwo (1992) 4 NWLR (Pt.238) 693 @ 710, per Onu, JCA (as he then was).

He submitted that the Court below also erred in failing to hold that the trial Court exceeded the maximum punishment for a public officer alleged to have contravened the Code of Conduct by barring the appellant from holding public office for life, whereas the Code of Conduct prescribes a maximum of 10 years. He contended that the trial Court condemned the appellant to a far more severe punishment than that contemplated by the Constitution. He referred to Section 137(1)(e) of the 1999 Constitution which sets out the factors that would disqualify a person from election into public office.

He referred to similar provisions relating to disqualification for election to the office of Governor of a State (Section 182(1) (e) of the Constitution) and membership of a House of Assembly (Section 107(1) (d) of the Constitution), or Senate/House of Representatives (Section 66(1) (d) of the Constitution).

​It was further argued that the suit had become academic as the appellant had ceased to hold office as at 11/5/2010 when the suit was heard and 1/6/2010 when judgment was delivered and therefore the question of his fitness or otherwise to continue to occupy the office had become otiose. He referred to Olaniyi Vs Aroyehun (1991) 5 NWLR (Pt.194) 652 @ 692 per Nnaemeka-Agu, JSC.

He submitted that in so far as the facts relied upon to sustain the claim have no relationship or nexus with the reliefs sought, there was no reasonable cause of action before the Court and the suit ought to have been struck out. He submitted that with the demise of late President Umaru Musa Yar’adua, the appellant ceased to hold office as Attorney General of Federation and with the assumption of office by the Acting President Goodluck Jonathan, he was redeployed to the Ministry of Special Duties.

He contended that the purpose of the suit, which was the removal of the appellant from office, was defeated once he no longer occupy the office. He submitted that the Court ought to have taken judicial notice of these facts. He referred to Section 74 of the Evidence Act. He submitted that the Court does not dissipate energy on academic issues.

In reaction to the above submission, learned counsel for the 1st respondent asserted that the trial Federal High Court was vested with the necessary jurisdiction to entertain the suit by virtue of Section 251(1) of the 1999 Constitution, as amended because the subject matter relates to an act of an officer of the Federal Government. He submitted that at the time the appellant was the substantive Attorney General of the Federation. He referred to the reliefs sought and submitted that the issue as to whether the appellant met the constitutional qualification for appointment as AGF did not arise.

That the issue before the Court was as to his emotional, psychological and moral capacity to hold or continue to hold that office. He submitted further that the issue in contention was whether it was not unbecoming of the Chief Law Officer of the Federation to use the status of his office to urge individuals and institutions not to obey the judgment of the Court of Appeal, particularly having regard to the fact that the judgment of the Court of Appeal was final as regards the election petition in issue.

He urged the Court to discountenance the authorities relied upon by learned counsel for the appellant as being irrelevant,

Resolution of Issue 3 It is necessary to note at the outset that Courts of law are creations of statute and their jurisdiction is prescribed and/or circumscribed by the Constitution or the statute that created them, See: Obiuweubi Vs C.B.N. (2011) 7 NWLR (Pt.1247) 465; Onuorah vs K.R.P.C. (2005) 6 NWLR (Pt. 921) 393; Skye Bank Plc vs lwu (2017) 16 NWLR (Pt.1590) 24; (2017) LPELR- 42595 (SC) @ 163-164 G – A.

Section 251(1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, provides: “251(1) Notwithstanding anything to the contrary, contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters - (r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action by the Federal Government or any of its agencies”

​In order to determine whether a cause of action falls within the jurisdiction of a Court as provided for in the Constitution or the statute that created it, regard will be had to the originating processes only. Where the action is commenced by a Writ of Summons, the processes to be examined are the Writ of Summons and Statement of Claim. Where the action is commenced by Originating Summons, it is only the Originating Summons and the affidavit in support that would be considered. See: Adeyemi Vs Opeyori (1976) 9-10 SC (Reprint) 18, A.G.

Federation Vs Guardian Newspapers Ltd. & Ors. (1999) 9 NWLR (Pt. 618) 187; A.G. Anambra State vs A.G. Federation (2007) 12 NWLR (Pt. 1047) 1.

The questions submitted to the trial Court for determination and the reliefs sought by the plaintiff thereof, have been reproduced earlier in this judgment. For ease of reference, the questions are again reproduced below: 1.

Whether the conduct of the 2nd Defendant in purported exercise of the powers of the 1st Defendant in the letters of 8th January 2008 and 16th February 2009 does not constitute abuse of the powers conferred by Section 150(1) of the 1999 Constitution and do not undermine and/or subvert the administration of justice, the rule of law and independence, authority and integrity of the judiciary established under Section 36(1) of the said Constitution which he is obliged to uphold and defend and, particularly, to breach of Section 149 of the said Constitution. 2.

Whether, in the circumstances of the said letters aforesaid, the 1st Defendant is a fit and proper person to hold office as the 1st Defendant in conformity with Section 149 of the 1999 Constitution.

​It is evident to me that what the plaintiff was seeking from the Court was a determination as to whether the administrative action of the 1st defendant through the 2nd defendant, in writing the letters dated 8th January 2008 and 16th February 2009, are not ultra vires his powers as AGF vis a vis Section 150(1) of the 1999 Constitution and in breach of his oath of office and whether, in view of said conduct, he is a fit and proper person to continue to hold that office.

In other words, the suit is challenging administrative acts carried out by the 2nd defendant while occupying the office of AGF. The reliefs sought are consequent upon the questions being determined in the plaintiff’s favour.

It is the appellant’s contention that the suit ought to have been instituted vide a petition before the Code of Conduct Tribunal. The reliefs sought in the instant suit are purely civil. It was held in Saraki Vs F.R.N (2016) 3 NWLR (Pt. 1500) 531 @ 579 E-H & 581 F-G, that proceedings before the Code of Conduct Tribunal are quasi-criminal. Its proceedings are guided by the Criminal Procedure Code or Criminal Procedure Act (now the Administration of Criminal Justice Act, 2015). See paragraph 17 of the Third Schedule to the Code of Conduct Bureau and Tribunal Act.

A careful perusal of the Code of Conduct Tribunal Rules of procedure confirms the fact that the proceedings thereof are conducted in the style and manner of a criminal prosecution with a prosecutor, an accused, taking of plea, etc. I am of the considered opinion that the suit was properly commenced before the Federal High Court to assuage an injury done to a private citizen as a result of the administrative actions of the defendants.

I am in complete agreement with the learned Justices of the Court below that the quasi-criminal jurisdiction of the Code of Conduct Bureau does not extend to matters involving injury to an individual in a civil case.

As to the issue whether or not the Originating Summons disclosed a cause of action against the defendants, it is necessary to reiterate that it is the originating processes filed by the plaintiff that determine whether a cause of action is disclosed or not. At the time the suit was instituted, the appellant was the AGF and Minster for Justice. The fact that he subsequently ceased to occupy that office, does not alter the fact that a cause of action was disclosed. This issue is resolved against the appellant.

Issue 4 It is the contention of learned counsel for the appellant under this issue that the lower Court was wrong when it held that the objection to the admissibility of Exhibits B, C and D, being uncertified photocopies of public documents in breach of Sections 102, 104, 105 and 106(a) (ii) of the Evidence Act, ought to have been raised at the trial Court. He submitted that the lower Court ought to have expunged the inadmissible documents from its record. He submitted that inadmissible documents can be expunged from the record even at the point of writing the judgment.

He referred to: Olalomi Ind. Ltd. Vs N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266 @ 303 E-F. He submitted that secondary evidence of documents attached to an affidavit (as in this case), must comply with the requirements for admissibility under Sections 102, 104 105 and 106 of the Evidence Act. He referred to: Fawehinmi vs I.G.P. (2002) 5 SCNJ 103 @ 129 and 132; Kwara State Ministry of Agriculture Vs S.G.B Ltd. (1998) 11 NWLR (Pt. 575) 574 @ 583.

He submitted further that this Court has held in a plethora of cases that the only admissible secondary evidence of a public document, is a certified true copy. He cited: Ojo vs Gharoro (1999) 8 NWLR (Pt. 695) 374 @ 387; C.C.B. Nig. Ltd. vs Odogwu (1999) 3 NWLR (Pt.140) 646 @ 656. He is of the view that once the offending documents are expunged, the 1st respondent’s case would collapse and urged us to allow the appeal on this issue,

​Learned counsel for the 1st respondent argued that the present attitude of the Courts regarding the admissibility of documents is to determine the relevance of such documents. He submitted that once the Court finds the documents to be relevant to a fact in issue, they will be admitted in evidence. He noted that the Courts have always held that once a document is found to be relevant and admissible, the probative value to attached to it is a different matter entirely, he submitted that where, as in this case, the content of the documents are not in dispute, they need not be certified.

He observed that the appellant did not deny his signature on the documents. He referred to: Onobruchere vs Esegina (1986) 1 NWLR (Pt.19) 799, Nzekwu vs Nzekwu (1989) 2 NWLR (Pt. 104) 3737 Araka vs Egbue (2003) 17 NWLR (Pt.848) 1; B.A.T. (Nig) Ltd. vs International Tobacco Co. Plc (2013) 2 NWLR (Pt.1339) 496 @ 520-523 A-E.

On the distinction between relevancy and weight, he referred to Abubakar vs Chuks (2007) LPELR-52 (SC) @ 13- C-G (2007) 18 NWLR (Pt.1066) 380 @ 403 F-N, per Tobi, JSC. He submitted that assuming, without conceding, that the documents were inadmissible, the learned trial Judge did not base his judgment solely on those documents.

He submitted that the judgment was based on the affidavit evidence of the 1st Respondent which stood uncontroverted, submitted that the Court was entitled to treat the uncontroverted facts as true and act upon them, provided they are not frivolous, contrary to reason or unsupported by documents where it is expected that they be so supported. He relied on: Alagbe vs Abimbola (1978) 2 SC 39; Egbuna vs Egbuna (1989) 2 NWLR (Pt.106) 773.

He submitted that in the absence of any counter affidavit, the Appellant is deemed to have admitted the averments in the supporting affidavit. He referred to: Yar’adua vs Yandoma (2015) All FWLR (Pt.770) 1215 @ 1259 A; Long John vs Blakk (1998) 6 NWLR (Pt.555) 524 @ 532; Ogoejeofo vs Ogoejeofo (2006) 3 NWLR (Pt.966) 205. He urged us to resolve this issue against the appellant.

Resolution of Issue 4 I deem it necessary to reiterate my finding in the course of resolving the first issue, that the appellant was duly served with the originating processes in the suit and was represented by counsel throughout the proceedings. He did not file a counter-affidavit, neither did he raise any objection whatsoever to the processes served on him, including the exhibits attached to the supporting affidavit. A trial conducted on the basis of an Originating Summons is by affidavit evidence.

Averments in an affidavit, not challenged, are deemed admitted and the Court is entitled to act on them. See Owuru vs Adigwu & Anor.(2018) 1 NWLR (Pt.1599) 1; (2017), LPELR-42763 (SC.) @ 28-29 D-C, Inakoju vs Adeleke (2007) 4 NWLR (Pt.1025) 427 @ 684-685 H-B, Ogoejeofo vs Ogoejeofo (2006) 3 NWLR (Pt. 966) 205. It is also trite that such uncontradicted evidence must be cogent and strong enough to sustain the applicant’s claim. See: Ogoejeofo vs Ogoejeofo (supra).

In a matter fought on affidavit evidence, the documentary evidence relied upon is attached to the affidavit and therefore forms part of the evidence adduced in the case before the Court. The distinction between averment of facts in pleadings and averment of facts contained in an affidavit was explained by this Court in Magnusson vs Koiki (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt.317) 287 @ 303 C, as follows: “Averments of facts in pleadings must be distinguished from facts deposed to in an affidavit in support of an application before a Court.

Whereas the former, unless admitted constitutes no evidence, the latter are by law, evidence upon which a Court of law may, in appropriate cases, act.” The holding of Mbaba, JCA in Ilorin East Local Government vs Alasinrin & Anor (2012) LPELR 8400 (CA) referred to and relied on in the case of: B.A.T (Nig) Ltd Vs International Tobacco Co. Plc (2013) 2 NWLR (Pt. 1339) 493 @ 520-521 D-A, following the reasoning in Magnusson Vs Koiki (supra), is quite instructive.

His Lordship held, inter alia: “I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court to be used, once the Court is satisfied that it is credible.

Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with … The reason for this is easy to deduce, the first being that affidavit evidence is already admitted evidence before the Court unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided.

The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counterparts and the deponent has many of the parts to exhibit in original forms).”

In effect, any objection to any of the documents attached to the supporting affidavit could only be raised at the hearing of the suit, see: C.R.P.D. & Investment Co. Ltd. vs Obongha (2008) 8 NWLR (Pt. 670) 751 @ 765 G; Adejumo Vs Gov. of Lagos State (1970) ALL NLR 187 @ 191. The affidavit and the documents thereto stood unchallenged and uncontroverted and the Court was entitled to rely on them. This issue is accordingly resolved against the appellant.

Issue 2 Learned counsel for the appellant argued that the Court below erred in affirming reliefs granted by the trial Court, which were not claimed by the plaintiff/1st respondent. He submitted that the law is trite that a Court of law must not grant to a party a relief not sought. He referred to: Ekpenyong Vs Nyong (1975) 2 SC 71 @ 81-82; Awodi & Anor vs Ajagbe (2014) 12 SC (Pt.1) 73 @ 113.

He contended that the learned trial Judge expanded the boundaries of the litigation in this case by making an order referring the appellant to the Nigerian Bar Association for appropriate disciplinary action and making a declaration that he abused the powers conferred on him by Section 150(1) of the Constitution and acted in breach of Section 149 thereof. He submitted further that the learned trial Judge restrained the appellant from holding public office instead of limiting himself to the prayer restraining him from holding office as the Attorney General.

Learned counsel reproduced portions of the judgment at pages 75, 76, and 77 of the record and contended that the comments of the learned trial Judge are illustrative of a personal bias against the appellant and a descent into the arena of conflict.

Per contra, learned counsel for the 1st respondent submitted that the Court is entitled to make consequential orders which give effect and meaning to the judgment and that they must be incidental to and flow directly from the relief sought in the suit. He referred to: Governor, Ekiti State vs Olubunmo (2017) 3 NWLR (Pt. 1551) 1 @ 39-40, 42 and 48. He submitted that the Court bears both the moral and constitutional burden to condemn and reprimand unscrupulous and fraudulent characters in the strongest possible terms.

He submitted further that there is nothing wrong with a Judge passing a comment in the course of his judgment, which is in effect an obiter dictum, for which the appellant has not suffered any injustice.

On the authority of the Court to grant consequential orders he referred to: Amaechi & Ors. Vs INEC & Ors. (2008) 33 NSCQR (Pt.1) 33 @ 529-530 D-A & 437 A-C and urged the Court to resolve this issue against the appellant.

Resolution of Issue 2 I have examined once again, the questions submitted to the trial Court for determination. The questions were answered in the affirmative at pages 77-78 of the record. The declarations made were also in line with the relief sought, save for the fact that the appellant was restrained from occupying the office of Attorney General of the Federation and Minister for Justice in addition to any public office in the Federal Republic of Nigeria and a further order made, referring him to the Nigerian Bar Association for appropriate disciplinary action.

​The aspects of the orders complained of are in the nature of consequential orders naturally flowing from the declarations made and are intended to give effect to the judgment. See: the recent decision of this Court in U.O.O, Nigeria Plc Vs Mr.

Maribe Okafor & Ors, (2020) LPELR-49570 (SC) @ 45-46 F-C, per Mary Peter-Odili, JSC, where His Lordship held thus: “In respect of the arguments of the appellant that the trial Court and affirmed by the Court below erroneously awarded claims not part of the reliefs sought … That concern would not fly in the light of the evidence before the Court upon which the trial Court made the orders which clearly were consequential and the Court was acting in due exercise of its powers.

There are consequential orders which are incidental to the decision of the Court and which followed necessarily, naturally directly and consequently from the judgment and not extraneous nor could be classified as strange and did not need to have been claimed earlier to be given or granted.” (Underlining mine)

In Amaechi Vs INEC (supra) per Oguntade, JSC, this Court held inter alia, “This Court and indeed all Courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure that citizens of Nigeria, high and low, get the justice which their case deserves … The Judiciary, like all citizens of this country, cannot be a passive onlooker when any person attempts to subvert the administration of justice and will not hesitate to use the power available to it to do justice in the case before it.” See also: Ezeonwu Vs Onyechi (1996) 3 NWLR (Pt. 438) 499; (1996) LPELR-1212 (SC) @ 24-25 D B; Eze & Ors.

Vs Governor Abia State and Ors. (2014) 14 NWLR (Pt.1426) 192; (2014) LPELR-23276 (SC) @ 30 B-E.

Section 150(1) of the Constitution provides: “There shall be an Attorney General of the Federation who shall be the Chief Law Officer and a Minister of the Government of the Federation.” By virtue of Section 149 of the Constitution: “A minister of the Government of the Federation shall not enter upon the duties of his office, until and unless he has declared his assets and liabilities as prescribed in this Constitution and has subsequently taken and subscribed to the Oath of Allegiance and the Oath of the due execution of the duties of his office prescribed in the Seventh Schedule to this Constitution.” The Oath of office prescribed in the Seventh Schedule states, inter alia: “That I will, to the best of my ability, preserve, protect and defend the Constitution of the Federal Republic of Nigeria;

that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria;

that in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill will…” Section 287(2) of the Constitution provides: “287(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to the Court of Appeal.” ​The undisputed facts in this case are that by two letters dated 8th January 2008 and 16th February 2009, the appellant categorically advised non-compliance with decisions of the Court of Appeal, which decisions by virtue of Section 246(3) of the 1999 Constitution, as amended, which he swore to uphold, are final decisions.

There could be no further appeal on the matters decided to finality by the Court of Appeal. The President of the Court of Appeal, the Speaker of the House of Representatives and the Chairman of INEC, all had a bounden duty, as prescribed by Section 287(2) of the Constitution, to obey and give effect to the judgment of the Court of Appeal. It was indeed highly reprehensible for the Chief Law Officer of the Federation to counsel disobedience to any judgment at all, talk less of a judgment from which there is no further right of appeal.

I am in complete agreement with the learned trial Judge, as affirmed by the Court below, that having regard to the conduct of the appellant while occupying the sacred office of Chief Law Officer of the Federation, he ought not to be entrusted with any other public office at all.

I agree with the Court below that the order made, though not specifically asked for, is a consequential order naturally flowing from the resolution of the questions for determination in the 1st respondent’s favour and the grant of his reliefs. As held in Amaechi Vs INEC (supra) the Court has a duty to use its powers to do justice in the case where an attempt to subvert the administration of justice has occurred.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Similarly, it was within the Court’s power to make a consequential order referring the appellant to the NBA for disciplinary action having regard to his condemnable conduct which is against the ethics of the profession and in breach of the Rules of Professional Conduct for Legal Practitioners, 2007. Rule 30 thereof provides: “A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice.”

The portions of the judgment of the learned trial Judge at pages 75, 76, and 77 of the record complained of, read thus: Page 75: “The hallowed office of the Attorney General of the Federation and Minister of Justice in  Nigeria has been gradually desecrated and put into disrepute over the years with the likes of the 2nd defendant being appointed and occupying it … it is meant for learned eminent members of the Bar and not for Political charlatans, jobbers, or latter day praise singers/converts, which this country has been experiencing.

Gone are the days when this exalted office was occupied by distinguished and reputable gentlemen of the Bar with pedigree like Dr. T.O. Elias, QC, who later became the second Chief Justice of Nigeria (CJN) after the Rt. Hon, Chief G.C.M. Onyiuke, SAN, Mr.

Kehinde Sofola, SAN, Chief Bola Ige, to mention a few.” Page 76: “In conclusion, it is my hope that the present occupier of the 1st Defendant’s office, Mohammed Adoke, a past Chairman NBA Kano Branch, will apply the legal maxim, that there must be an end to litigation, in many suits pending in our Courts which have no business being there.” Page 77: “It is our humble and sincere desire whilst congratulating you on your new appointment you proffer sound legal advice similar to that in Igbeke Vs Emordi case to those concerned and bring unnecessary litigation to an end in the interest of the litigants, the judiciary and the public at large.”

​I find myself unable to agree with learned counsel for the appellant that the portion of the judgment quoted from page 75 of the record shows personal bias against the appellant by the learned trial Judge. His Lordship had dispassionately considered the affidavit and documentary before him in reaching the conclusion that the appellant had, by his conduct, undermined and subverted the administration of justice and the independence, authority and integrity of the judiciary in the letters of 8th January 2008 and 16th February 2009 written by him in his capacity as AGF.

The comments reproduced above do not form part of the ratio of the decision appealed against but are comments made in passing by His Lordship to express his dismay and disappointment at the state of affairs. Such comments passing are otherwise known as obiter dictum See: Babarinde & Ors. vs The State (2014) 3 NWLR (Pt.1395) 568; Oshodi vs Eyifunmi (2000) 7 SC (Pt.II,) 145; Omisore vs Aregbesola & ors. (2015) NWLR (Pt.1482) 205. While agreeing with the sentiments expressed by His Lordship, I agree with the Hon.

Justices of the Court below that the portions of the judgment complained of are mere obiter dicta and cannot be the basis for a reversal of the decision. This issue is accordingly resolved against the appellant.

Issue 5 This issue complains about the award of damages made by the learned trial Judge. Learned counsel for the appellant submitted that the learned trial Judge awarded exemplary damages against the defendants whereas the 1st respondent did not seek this specie of damages. He submitted that exemplary damages, which are punitive are awarded in situations where a party has failed to show remorse or where the party had an opportunity to redress the wrong but refused to do so. He argued that these factors do not apply in this case. He referred to Odogu vs A.G.

Federation (1996) 6 NWLR (Pt.456) 508 @ 521 E-H, per Onu, JSC, where it was held that exemplary damages are recoverable if the plaintiff is the victim of the punishable behaviour of the defendant. He contended that in the instant case, the appellant’s action was advisory and had no effect on the 1st respondent, as he was eventually sworn in as a member of the House of Representatives.

On the principles which should have guided the Court in the award of damages, he referred to Guardian Newspaper & Anor. Vs Ajeh (2011) 4 SC (Pt.II) 69 @ 92 paras 20-30. He submitted that the Court acted upon a wrong principle of law in making the award.

He contended further that the injury allegedly suffered by the 1st respondent was not attributable to the appellant so as to make the award of damages against him grantable because, in writing the letters complained of, he merely gave advice in his capacity as the AGF and the recipients were not under any constitutional obligation to act on the advice.

Relying on the case of U.T.C. (Nig) Plc Vs Philips (2012) 6 NWLR (Pt. 1295) 136 @ 167 G-H, he submitted that, assuming without conceding that the 1st respondent was entitled to damages, the Court still had a duty to exercise its discretion judicially and judiciously. He submitted that affirming the award would amount to punishing the appellant for the action or inaction of others.

Learned counsel for the 1st respondent submitted that the primary objective of an award of damages is to compensate the plaintiff for the harm done to him, while a secondary objective is to punish the defendant for inflicting that harm. He submitted that exemplary damages would come into play where the defendant’s conduct is sufficiently outrageous to merit punishment. He reproduced the views expressed by His Lordship, Oyewole, JCA in his concurring judgment at the Court below. The judgment appealed against is reported in (2016) 6 NWLR (Pt.1508) 280. Hon.

Justice Oyewole’s contribution is at pages 327-329 (or pages 299-300 of the record). He adopted the view expressed by His Lordship in urging us to resolve this issue against the appellant.

Resolution of Issue 5 The decision of this Court in Nursing and Midwifery Council of Nigeria Vs Patrick Ogu & Anor (2019) LPELR-53899 (SC) @ 15-17 F-A is quite germane to the resolution of this issue. The Court per Mary Peter-Odili, JSC held thus: “This Court has laid down the guiding principles guiding the award of exemplary damages in the case of CBN vs Okojie (2015) 14 NWLR (Pt.1479) 231; (2015) LPELR-24740 (SC) thus: ‘Exemplary damages are awarded with the object of punishing the defendant for his conduct in inflicting injury on the plaintiff.

They can be made in addition to normal compensatory damages and should be made only: (a) In a case of oppressive arbitrary or unconstitutional acts by government servants; (b) where the defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff and (c) where expressly authorised by statute.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The Supreme Court went on at page 263 of the case of C.B.N Vs Okojie (supra) as follows: “for example damages to be awarded it need not be specifically claimed, but facts to justify it must be pleaded and proved.

Thus, once the facts in the pleadings support the award of exemplary damages, the Court should award it since the adverse party is in no way taken by surprise.” (Emphasis mine) ​There is no doubt that the pleadings in this case support the award of exemplary damages against the defendants, having established unconstitutional acts committed by the writing of letters to the President of the Court of Appeal, The Speaker of the House of Representatives and the Chairman of INEC, advising them to disregard orders made by the Court of Appeal, in flagrant breach of Section 287(2) of the Constitution which the appellant swore to uphold, which provides that the decisions of the Court of Appeal shall be enforced in any part of the Federation and by all authorities and persons and by Courts with subordinate jurisdiction to the Court of Appeal and Section 246(3) thereof, which provides that the decision of the Court of Appeal in the election matter in issue, is final.

It is quite unfortunate that the learned Senior counsel representing the appellant would argue before us that the appellant merely gave advice in his capacity as AGF and that the recipients of the advice were not obliged to comply. It is patently clear from the facts before the Court that it was in compliance with the letters written by the appellant that the 1st respondent was neither issued with a Certificate of Return nor sworn into office, as ordered by the Court. As a result, the Federal Constituency he was to represent at the House of Representatives was denied representation.

The appellant, as the Chief Law Officer of the Federation and a Senior Advocate of Nigeria to boot was reckless and acted in a manner most unbecoming of the occupant of such an exalted office.

His Lordship, Oyewole, JCA captured the mood of the learned trial Judge when he observed at pages 299-300 of the record: “The fact leading to this appeal captured a most sordid low in the administration of justice in this country. It is unthinkable that the occupier of the exalted office of Attorney General would subvert the ends of justice, as was crudely done in this case by the appellant, When an Attorney General acts imperiously, placing himself above the laws of the land, impunity and anarchy are enthroned.

Public office is a sacred trust and an Attorney General should epitomize all that is good and noble in the legal profession. That office should never again be occupied by individuals of such poor quality as the appellant It is ironic that the appellant should approach the same temple he so brazenly desecrated for succor against the consequences of his appalling conduct.

To restore the dignity of the legal profession and reinforce the confidence of the administration of justice, the Nigerian Bar Association is invited to the facts of this case and the judicial reactions thereto and subject the appellant to its appropriate disciplinary processes.”

His Lordship has said it all. I agree entirely. The appellant has failed to persuade me to interfere with the award of exemplary damages made by the trial Court. It reflects the gravity of the appellant’s conduct. This issue is resolved against the appellant.

​In conclusion, I hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of the Court below, affirming the judgment of the trial Court, is affirmed. Cost of N2 Million is awarded against the appellant in favour of the 1st respondent.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and to underscore the support I have in the reasonings that brought about the decision, I shall make some remarks.

This is an appeal against the judgment of the Calabar Division of the Court of Appeal or Court below or lower Court, Coram: P.O. Elechi, J.O. Oyewole and O. Nwosu-Iheme, JJCA, delivered on 3rd September, 2015 affirming the judgment of A.F.A. Ademola J. sitting at the Federal high Court, Calabar on 1st June, 2010.

FACTS BRIEFLY STATED Before the trial Court, the 1st respondent as the plaintiff, commenced the suit by originating summons on the 15/5/2009 raising the following questions for determination, namely: (1) Whether the conduct of the 2nd defendant in purported exercise of the powers of the 1st defendant in the letters of 8th January, 2008 and 16th February, 2009 does not constitute abuse of the powers conferred by Section 150(1) of the 1999 Constitution and do not undermine and/or subvert the administration of justice, the rule of law and independence, authority and integrity of the judiciary established under Section 36(1) of the said Constitution which he is obliged to uphold and defend and, particularly, the breach of Section 149 of the said Constitution. (2) Whether, in the circumstances of the said letters aforesaid, the 1st defendant is a fit and proper person to hold office as the 1st defendant in conformity with Section 149 of the 1999 Constitution.

Pursuant to the determination of those questions, the 1st respondent sought the following reliefs: (1) That the 2nd defendant undermined and/or subverted the rule of law, the due administration of justice and the independence, authority and integrity of the judiciary in the letters of 8th January, 2008 and 16th February, 2009 written by him in the capacity of the 1st defendant. (2) That the 2nd defendant is not a competent, fit and proper person to hold and/or continue to hold office as the 1st defendant having regards to the Oaths of Allegiance and Office. (3) N100 million damages against the defendants jointly and severally, (4) Perpetual injunction restraining the 2nd defendant from further and/or continued occupation of the office of the 1st defendant and/or the discharge of the functions of the said office.

As at the time the suit was commenced, the Appellant was holding the office of the Attorney General of the Federation and Minister of Justice. He was thus sued in his dual capacity as the Appellant and the 2nd respondent (at the trial Court as both 1st and 2nd defendants). He was served in that dual capacity and he entered appearance without raising the issue of non-service or improper service.

Shockingly, another person who did not win the election was unlawfully substituted by the National Secretariat of the Peoples’ Democratic Party. This resulted in a long and hard battle.

After several adjournments, at the instance of the Appellant, and a long delay spanning about 13 months, the trial Court heard the case and delivered judgment on the 1st June, 2010.

​The appellant appealed against the judgment of the trial Court and the Court of Appeal affirmed the decision of the trial Court. The appellant has now further appealed against the judgment of the Court of Appeal.

The 1st respondent emerged the winner of the Peoples Democratic Party primary election in December, 2006 to fly the party’s flag for Uyo Federal Constituency of Akwa Ibom State in April, 2007 election and was presented to the Independent National Electoral Commission (INEC). A dispute arose following his unlawful substitution by the party.

On the 5/12/2007, the Court of Appeal, Calabar in Appeal No. CA/C/45/2007 delivered judgment in favour of the 1st respondent and ordered that the President of the Court of Appeal should set up a new Tribunal to try the 1st respondent’s election petition in Uyo. The Appellant in his capacity as the Attorney-General of the Federation and Minister of Justice wrote to the President of the Court of Appeal urging him not to obey the decision of the Court of Appeal by setting up the new Tribunal. That letter is Exhibit A in this matter.

​The President of the Court of Appeal rightly ignored the letter and reconstituted another Election Petition Tribunal to try the 1st respondent’s petition. That Tribunal delivered judgment on the 18th April, 2008 and ordered that the 1st respondent be sworn into the House of Representatives. There was an appeal to the Court of Appeal, Calabar by the 1st respondent’s opponent.

On the 12/2/2009, the Court of Appeal, Calabar, dismissed the appeal and ordered INEC to issue a Certificate of Return to the 1st respondent. Again the Appellant, wrote a letter dated 16/2/2009 to the then Chairman of INEC, Prof. Maurice Iwu urging him not to obey the judgment of the Court of Appeal. In the said letter, he described the judgment of the Court of Appeal as “AN OBVIOUS DESECRATION OF THE INSTITUTION OF THE JUDICIARY”. That letter is Exhibit C. This is found at page 16 of the Record of Appeal.

The appellant also wrote to the speaker of the house of Representative, Hon, Dimeji Bankole directing him not to obey the judgment of the Court of Appeal in the matter. That said letter is Exhibit D. This is found at page 22 of the Record of Appeal.

On the strength of those letters, emanating from the Chief Law Officer of the country; INEC refused to issue a Certificate of Return to the 1st respondent and the Speaker of the House of Representatives, Dimeji Bankole refused to invoke Section 76(2) of the Electoral Act, 2006 to swear-in the 1st respondent. The 1st respondent felt grievously injured by the deprivation of his right as pronounced by the Court.

The 1st respondent felt that the actions of the, Appellant were in violation of his constitutional responsibility first, as a lawyer and also as the Chief Law Officer of the Federation. He was in breach of his mandatory duty under Section 287 of the 1999 Constitution. That by these letters, the appellant had grossly undermined the authority of the Court of Appeal in particular and the judiciary in general.

As a result of the above chronicled actions of the appellant, the 1st respondent lost his occupation of the office and the corollaries of the office, including financial benefits, the dignity of the office; this injured the 1st respondent, who sought redress to remedy the situation.

​The 1st respondent therefore instituted the suit against the appellant both in his personal capacity and in his capacity as the 2nd respondent, the Attorney-General of the Federation and Minister of Justice on account of the injuries inflicted on him by the acts of the appellant.

The appellant did not complain of service at the trial Court and participated throughout the proceedings.

On the 31/3/2010, appellant’s counsel indicated her intention to withdraw her appearance for the appellant in his personal capacity and when advised to file a motion in that regard, failed to do so and so remained counsel for both appellant and 2nd respondent till judgment.

The trial Court delivered its judgment on the 1/6/2010 granting the reliefs in the originating summons which decision was affirmed by the Court below.

On the 20/9/2021 date of hearing, learned counsel for the appellant, Okon Efut SAN adopted the brief of the appellant filed on 6/1/2017 and deemed filed on 27/5/2019.

In it were distilled five issues for determination, viz:- (i) Whether the learned Justices of the Court of Appeal were right to hold that the Appellant was granted fair hearing and thereby affirming the judgment of the trial Court, when the entire proceedings of the trial Court was tainted and vitiated by the non-service of the originating summons and subsequent hearing notices on the Appellant. (Distilled from Grounds 1 and 2), (ii) Whether the learned Justices of the Court of Appeal were right to affirm the trial Court’s order granting reliefs not claimed by the Plaintiff/1st Respondent against the Appellant. (Distilled from Grounds 3 and 9) (iii) Whether the Court below was right to hold that the trial Court had jurisdiction to entertain the suit, the subject matter of which was the alleged breach by the Appellant of his Oath of Allegiance and Oath of Office, and the outcome of which had been overtaken by events. (Distilled from Grounds and 7) (iv) Whether Exhibits B, C and D, being uncertified photocopies of public documents were admissible in evidence, having regard to Sections 97, 109, 111 and 112 of the Evidence Act (Distilled from Ground 6) (v) Whether the learned Justices of the Court of Appeal were right in affirming the order of the trial Court awarding exemplary damages in the sum of N50 million against the defendants/appellant and 2nd respondent contrary to the legal principles and factors governing award of damages/Distilled from Ground 8).

​Learned Senior Counsel, Uwemedimo Nwoko adopted the brief of argument, filed on 1/8/2018 and deemed filed on 27/5/2019. He equally adopted the issues crafted by the appellant.

I shall utilize the said issues formulated by the appellant for ease of reference and convenience.

ISSUES 1, 2 & 3 (1) Whether the learned Justices of the Court of Appeal were right to hold that the Appellant was granted fair hearing and thereby affirming the judgment of the trial Court, when the entire proceedings of trial Court was tainted and vitiated by the non-service of the originating summons and subsequent hearing notices on the appellant. (Distilled from Grounds 1 and 2) (2) Whether the learned Justices of the Court of Appeal were right to affirm the trial Court’s order granting reliefs not claimed by the Plaintiff/1st Respondent against the Appellant (Distilled from Ground 3 and 9) (3) Whether the Court below was right to hold that the trial Court had jurisdiction to entertain the suit, the subject matter of which was the alleged breach by the Appellant of his Oath of allegiance and Oath of Office, and the outcome of which had been overtaken by events, (Distilled from Grounds 4,5 and 7).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned Senior Advocate for the appellant submitted that the Court below was in error to affirm the judgment of the trial Court when the entire proceedings of the trial Court was a nullity by reason of the fact that the Originating Summons was not served on the appellant, who was sued as the 2nd defendant in his individual and personal capacity. He cited Sken Consult v Ukey (1981) 1 SC 6 etc.

For the appellant, it was contended that the Court below erred in dismissing the appellant’s appeal when the reliefs granted by the trial Court were not claimed by the plaintiff. He referred to Ekpenyong v Nyong (1975) 2 SC 71 at 81-82 etc.

For the appellant, it was submitted that the proper forum for challenging any conduct of a public officer on a complaint that a person has breached the code of conduct under the Constitution is the Code of Conduct Tribunal and not the Federal High Court.

In response, learned Senior Advocate for the respondent submitted that the record of appeal bears out the facts of service and prosecution most eloquently and appellant entered appearance through counsel in his office. That even though service of process is fundamental to jurisdiction of Court, non-service or improper service can be waived by a defendant who may voluntarily submit to the jurisdiction of the Court and take part in the proceedings until judgment as happened in this instance. He cited Ogbuanyinya v Okudo (1990) 4 NWLR (pt. 146) 551 at 576 etc.

That appellant was at no point-denied fair hearing. Learned counsel for the respondents contended that a consequential order such as made in the instant case at the trial Court is an order which gives effect and meaning to the judgment where it would otherwise amount to a pyrrhic judicial victory. He cited Governor Ekiti State v Olubunmo (2017) 3 NWLR (pt. 1551) 1 at 39-40, 42 etc. That the Federal High Court had jurisdiction to entertain the subject matter. He cited Section. 251 (1) CFRN.

On the issue of non-service of process, it has to be restated that though service of process is fundamental to the jurisdiction of the Court, the absence of it or an improper service can be waived by the defendant who voluntarily, submits to the jurisdiction of the Court and takes part in the proceedings up to judgment. Such a defendant loses the right to be heard on a later objection on the basis of service of process on him.

That is the situation on hand in this instance where the appellant did not raise any issue of service at the earliest opportunity and appeared in Court through counsel and conducted the case up to judgment, only to bring up the matter of non-service at the appeal stage. The legal necessity of service of Court process is to put the other side on notice of the existence of the suit or particular process and not being technical rule of practice cannot be weaponised for technical mischief to frustrate the course of justice.

See Ogbuanyinya v Okudo (1990) 4 NWLR (pt. 146) 551 at 576; Ezomo v Oyakhire (1985) 2SC 269; (1985) 1 NWLR (pt.2) 195; Job Charles Nig. Ltd v Okonkwo (2002) FWLR (pt. 117) 1007; N.U.B. Ltd. v Samba Pet Co. Ltd; Odua Inv.

Co, Ltd. v Talabi (1991) 1 NWLR (pt.170) 761 at 779. ​The law cannot be stretched to such a degree of elasticity upon which it can be founded that since at the material time, the appellant occupying the office of the Attorney-General of the Federation and Minister of Justice should have been served separately thereafter him as Attorney-General had been served to confer a valid service on him.

Therefore, in this case at hand, once he had as Attorney-General been served with the process, the appellant had notice of the process, hence if he had any objection as to that mode of service he ought to have so raised it in protest immediately and not wait after he had participated in the proceedings to use that peculiar service to invalidate the suit. The situation has been streamlined by the Record of Proceedings which shows that appellant as the 1st defendant and the Attorney-General, of which he was as 2nd defendant were represented by the same counsel in the Federal Ministry of Justice.

Also of note is that subsequently when appellant ceased to be Attorney General, the same counsel represented him and the Attorney-General. It follows that being seised with the change if he did not desire that same counsel representing him, he was in a position to do something but he did not change the position of things hence, the counsel remained for him and the 2nd defendant till the end. He cannot thereafter orally change the narrative borne out of the record of appeal which is the compass or guide of the appellate Court which that Court cannot operate outside of, as it binds all parties.

See Sapo v Sunmonu (2010) 42 NSCQR 910 at 927; Audu v FRN (2013). 5 NWLR (Pt.1348) 397 at 408; Ibikunle v State (2007) 2 NWLR (pt. 1019) 546 at 572; Agwarangbo v Nakande (2000) 9 NWLR (pt. 672) 341 at 360; Abatan v Awudu (2004) 17 NWLR (pt. 902) 430. From the record, it is clear that appellant was duly served with the originating processes in this case and even if there was some lapse in the propriety of the service, appellant lost the right to complain having entered appearance and submitted to the jurisdiction of the Court. I rely on Umeanadu v A.G. Anambra State (2008) 3-4 SC 1-31.

My learned brother, Amina Augie, JSC captured what is playing out at this point in the case of HUSSAINI ISA ZAKIRAI V SALISU DAN AZUMI MUHAMMAD (2017) 17 NWLR (PT. 1594) 181 at 230-231 paras H-E, Augie JSC emphatically held, “Any defect amounted to a mere irregularity that can be waived by the parties. Was the said irregularity in this case waived? This Court nailed this issue to the ground in Adegoke Motors Ltd V.

Adesanya (Supra), wherein it stated categorically that in similar circumstances like this the filing of a memorandum of appearance, as was done in this case, constitutes a waiver of any irregularity, and constitutes a submission to the jurisdiction of the Court. In that case, Oputa JSC, observed at p. 271, paras F-H. A writ of summons (valid or invalid is immaterial at this stage) was served on the defendants. The defendants could, if they wanted to either:- i. Enter an appearance on protest; or ii. Enter a conditional appearance; iii.

To file a motion asking the Court seised of the matter - to set aside the purported writ and the purported service on the ground of essential invalidity of both writ and service. The defendants did not do this. Rather they entered an appearance through their solicitors … this implies that they wanted and intended to contest the case of all the plaintiffs. In this case, the appellant entered a conditional appearance and also filed a counter-affidavit, which means he waived the irregularity that he complained of, and had submitted to the jurisdiction of the Court.” See also NBC v.

Ubani (2014) NWLR (Pt. 1398) 421 at 459-461 ​The appellant had insisted that he was not served with the originating summons and turns around to argue about the non-service of hearing notice of the proceedings. That translates to a tacit admission that appellant was served with the originating summons and an admission that he entered appearance and participated in the proceedings.

Again to be said is that a party either as plaintiff or defendant who is aware of a pending suit concerning him or her has a duty to check the Registry of Court if nothing has been heard after a reasonable lapse of time for the current status of the case. This is so because a person with a case in Court in whatever capacity cannot afford the luxury of defiant complacency and expect miracles will take place to protect his interest at stake in litigation.

In this instance the appellant was represented for 13 months in the trial Court and the legal practitioner did not formally and properly withdraw the appearance thereof, the appellant clearly did not take seriously the matter as weighty as the one under discourse to personally follow up the developments. Clearly he waived his right and opportunity to complain, See NACB Lt v Ozoemelam (2016) 9 NWLR (pt. 1517) 376 at 407-408 per Ngwuta JSC; Saude v Abdullahi (1989) 4 NWLR (pt. 116) 389 at 405; NBC PLC v Ubani(2014) 4 NWLR (pt. 1398) 421 at 449.

It is to be noted that the principle of fair hearing is not a magic wand to cure all inadequacies at the trial Court nor can it be applied in the abstract at the comfort and convenience of a party. It is a principle founded and has to be based on the facts of a given case before the Courts, hence only the facts of the case can influence and determine the application or applicability of the principle, from the reliefs sought in the suit. See Governor of Ekiti State v Olubunmo (2017) 3 NWLR (pt. 1551) 1 at 39-40, 42 & 48.

In respect to the jurisdiction of the Federal High Court which appellant contends was absent. There is no gainsaying that the Federal High Court had jurisdiction to entertain the subject matter of the suit leading to this appeal pursuant to Section 251 (1) of the Constitution because as at the time of the act of the appellant complained of, he was an officer of the Federal Government.

​The contention of the appellant that the Federal High Court is not the proper forum for the dispute and it ought to have been the Code of Conduct Tribunal falls flat in the face of the facts of this case and the prevailing law.

In fact, the submissions of the appellant go against his case in context with what is available in the record.

Appellant posits that an allegation of abuse or breach of the Code of Conduct for Public Officers, Part 1 of the 5th Schedule to the 1999 Constitution is a matter within the special and exclusive jurisdiction of the Code of Conduct Bureau and the Code of Conduct Tribunal.

Paragraph 1 of Part 1, 5th Schedule to the 1999 Constitution provides: “A public Officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”

The allegation in paragraphs 13 and 13 (paragraph 13 is numbered twice) of the 1st Respondent’s affidavit at page 8 of the record is as follows:- “13. The 2nd Defendant is compromised in the discharge of his duty as the 1st defendant because of his joint interest with the said Elder Bassey Etim in the over N700M interest in the -judgment sum of N415M in the Utan Brama Victims Case in suit No. FHC/CA/8/95. On account of this compromise and undue interest, the 2nd Defendant acted both officially as the 1st Defendant and privately as M.K.

Aondoakaa & Co to deal with the said funds as in Exhibit F hereto, 13. The 2nd Defendant is blinded by the pursuit of the financial interests he shares with the said Elder bassey Etim in the Utan Brama funds that he is prepared to go to the length in the letters of 8th January, 2008 and 16th February, 2009 to shield the said Elder Bassey Etim.”

These allegations, bordering also on criminality, are allegations of breach of paragraph 1 of the Code of Conduct for Public Officers. By paragraph 12 of part 1 of the said 5th Schedule to the Constitution, “Any allegation that a public officer has committed a breach of or has not complied with the provisions of this code shall be made to the Code of Conduct Bureau.”

In paragraph 15(1) of part 1 of the said Schedule, the Code of Conduct Tribunal is established. Paragraph 18 of the said Schedule further provides: “1. Where the Code of Conduct Tribunal finds public officer guilty of a contravention of any of the provisions of this code, it shall impose upon that officer any of the punishment specified under sub-paragraph (2) of this paragraph and such other punishment as may be prescribed by the National Assembly. 2.

The punishment, which the Code of Conduct Tribunal may impose, shall include any of the following: (a) Vacation of Office or seat in any legislative house, as the case may be; (b) Disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years”

The stance of the appellant that the matter had become spent and academic because in the course of the action, the appellant had ceased to be Attorney-General and occupying the seat of Minister of Special Duties is not supportable because at the time of the act complained of he was Attorney General. Therefore, the case of Amah v Nwankwo (2007) 12 NWLR (pt. 1049) 552 at 5571-5572 is not applicable as the facts are different from those at hand.

Indeed, the issue of qualification for holding the office of 2nd respondent or any other public office does not arise.

​ISSUES 4 & 5 4. Whether Exhibits B, C and D being uncertified photocopies of public documents were admissible in the evidence, having regard to Sections 97, 109; 111 and 112 of the Evidence Act (Distilled from Ground 6) 5 Whether the learned Justice of the Court of Appeal was right in affirming the order of the trial Court awarding Exemplary Damages in the sum of N50 Million against the Defendant/APPELLANT and 2nd Respondent, contrary to the legal principles and factors governing award of damages (Distilled from Ground 8)

Learned counsel for the appellant contended that the trial Court acted on inadmissible secondary evidence of public documents in coming to the conclusion it did which the Court below erroneously affirmed. He cited Sections 102, 104 and 105 of the Evidence Act, Fawehinmi v IGP (2002) 5 SCNJ 103 at 129 & 132 etc.

That the Court below was wrong in affirming the order of the trial Court which awarded the sum of N50,000,000.00 as exemplary damages in favour of the plaintiff/1st respondent and against the 2nd respondent and the appellant. He stated that exemplary damages are punitive in essence and besides 1st respondent did not seek exemplary damages at the trial Court. He cited Odogu v. A.G. Federation (1996) 6 NWLR (pt. 456)508 at 521 etc.

Learned counsel for the respondents stated that Exhibits B, C and D were admissible and rightly relied upon by the Court. That such documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the 2nd appellant did not disown his signature on the documents which the appellant asserted ought to have been certified. He relied on Onobruchere v Esegine (1986) 1 NWLR (pt. 19)799 etc.

That the primary object of an award of damages is to compensate the plaintiff for the harm done to him and the secondary object is to punish the defendant for his conduct in inflicting that harm.

​The appellant had taken exception to the admissibility of Exhibits B, C, D since they were photocopies of public documents. The point has to be made that, copies of public documents attached to an affidavit as exhibits need not be certified true copies because the documents already form part of the evidence adduced, by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible.

Again to be said is that such documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the appellant did not disown his signature on the document he is contending ought to have been certified. I refer to Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Ogu v. M.T. & M.C.S. Ltd (2011) 8 NWLR Ltd (2011) 8 NWLR (Pt. 1249) 345; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713; Ilorin East L.G. v. Alasinrin (2012) LPELR 8400; B.A.T. (Nig.) Ltd. V.

Int’l Tobacco Co. Plc. (2013) 2 NWLR (Pt. 1339) 493. It is of note that the appellant never denied authoring those documents. It would have been a different thing if the appellant had denied that he did not write and sign the said Exhibits. In any event, the appellant quarreled seriously with the trial Court admission of Exhibits B, C and D and opined that since the documents were not certified, they ought not be admitted. It is the law that any documents attached to an affidavit need not be certified. See B.A.T. (NIG.) LTD. V. INT’L TOBACCO CO.

PLC. (2013) 2 NWLR (PT. 1339) P. 496 at 520-523 PARAS A-E. “…certificate of registration of Dorchester trade mark, certificate of assignment of the trade mark and certificate of renewal of the trade mark, respectively at the state. For the purpose of the application, Exhibits W01, W02 and W03 must certainly true copies, since the applicant was expected to photocopy the originals of those documents given to them by the issuing registry, as exhibited copies for this application.

One cannot expect the applicant to have taken the documents (photocopies) to the issuing registry for certification before using the same for this application. Only recently, we had cause to explain, in a well-considered judgment, that public documents, exhibited as secondary copies in affidavit evidence cannot, necessarily, be certified true copies, and that documents exhibited to an affidavit evidence which a Court is entitled to look at, and use. See the unreported decision of this Court in the case of Ilorin East L.G. v. Alh.

Woli Alasinrin & Anor - CA/IL/38/2011, delivered on 20/2/2011 wherein we state thus:- “I do not think the issue of certification of a secondary evidence (photocopy) as in exhibit C, can rise in this case, being one sought on affidavit evidence and the respondents not claiming to have obtained it from the appellant, lawfully…”

I agree with learned counsel for the respondents that relevance is key to admissibility as it is settled law that it is relevance of a document and not the weight to be attached to it that is paramount. Admissibility is not the same thing as the probative value that may be placed on the document or exhibit. Relevance and admissibility of a document are separate matters in contradistinction to the weight to be attached to it.

Therefore, in the consideration of the admissibility of any evidence, oral or documentary, the test remains that once it is relevant, it is admissible and the Court is not bothered with how it was obtained or the proper custody of the evidence. The position of the law which I have been trying to articulate is well set out in the judgment of this Court in Abubakar v. Chuks (2007) LPELR-52 (SC) at 13, paras.

C- G, (2007) 18 NWLR (Pt. 1066) 386 at page 403 Tobi, JSC articulated the law and the basis for it as follows:- “Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propel admissibility, is invoked by the trial Judge immediately the document is tendered.

At that stage, the Judge applies Sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is the stage of writing the judgment or ruling as the case may be.”

It is of interest that the facts deposed to in the supporting affidavit were not controverted and so are taken as true and deemed admitted with the Court bound to act on them. The documents were further evidence of those facts already deposed and unchallenged and so cannot be disturbed at this stage on admissibility. See Alagbe v Abimbola (1978) 2 SC 39; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yar’Adua v. Yandoma (2015) All FWLR (pt.770) 1215 at 1259; Long John v. Blakk (1998) 6 NWLR (pt. 555) 524 at 532; Ogoejeofo v Ogoejeofo (2006) 3 NWLR (pt. 966) 205; Owners MV Gongola Hope v.

SC (Nig) Ltd (2007) 15 NWLR (pt. 1059) 189 at 215 – 216.

On whether the Court below was right in affirming the order of the trial Court in the award of exemplary damages in the sum of N50 million naira against respondent, which appellant contends was not claimed by the 1st respondent. That posture is clearly misleading and outside the record. First, the 1st respondent claimed the sum of N100,000,000.00 (One hundred million naira) damages, which is the third relief in the originating summons. The Court even reduced what was claimed and so it is untrue that such monetary award was not claimed.

In justifying the award of N50 million naira exemplary damages Oyewole, JCA in his concurring judgment stated thus: “The facts leading to this appeal capture a most sordid law in the administration of justice in this country. It is unthinkable that the occupier of the exalted office of Attorney General would subvert the ends of justice as was crudely done in this case by the appellant. When an Attorney General acts imperiously, placing himself above the Superior Courts of the land, impunity and anarchy are enthroned.

Public office is a sacred trust and an Attorney General should epitomize all that is good and noble in the legal profession. That office should never be occupied by individuals of such poor quality as the appellant. It is ironic that the appellant could approach the same temple he brazenly desecrated for succor against the consequences of his appalling conduct.

To restore the dignity of the legal profession and reinforce the confidence of the ordinary citizens in, the administration of justice, the Nigerian Bar Association is invited to the facts of this case and the judicial reaction thereto and subject the appellant to its appropriate disciplinary processes.” (underlined mine)

It is not difficult to see the rationale that propelled the decisions in the two Courts below based on concurrent findings which I see nothing perverse leading thereto or a misapplication of the law, procedural or substantive upon which I can support a departure therefrom. Therefore, this appeal lacks merit and I dismiss it. I abide by the consequential orders made. Appeal dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have had the opportunity to read a draft of the lead judgment written by my Learned Brother K. M. O. Kekere-Ekun, JSC in this appeal and it represents, comprehensively, all my views on the issues that call for decision by the Court. I adopt the views expressed and conclusions reached on the issues as well as the conclusion that the appeal is bereft or merit. In particular, I endorse the apt observation by J. O. K.

Oyewole, JCA in his concurrent judgment (at pages 300-301 or the Record o Appeal) when he stated that:- “The facts leading to this appeal capture a most sordid low in the administration of justice in this country. It is unthinkable that the occupier of the exalted office of Attorney-General would subvert the ends of justice as was crudely done in this case by the appellant. When an Attorney-General acts imperiously, placing himself above the Superior Courts of the land, impunity and anarchy are enthroned.

Public office is a sacred trust and any Attorney-General should epitomize all that is good and noble in the legal profession. That office should never again be occupied by individuals of such poor quality as the appellant. It is ironic that the appellant could approach the same temple he so brazenly desecrated for succor against the consequences of his appalling conduct.

To restore the dignity of the legal profession and reinforce the confidence of the ordinary citizens in the administration of justice, the Nigeria Bar Association is invited to the facts of this case and the judicial reactions thereto and subject the appellant to its appropriate disciplinary processes.”

This position is weighty enough to serve as a strong lesson to all legal practitioners holding public offices, but particularly, as Attorney-General at the Federal or State levels. I join in dismissing the appeal in all the terms of the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have had a preview of the judgment just delivered by my learned brother, the Hon. Justice K.M.O. Kekere-Ekun, JSC. The reasoning and conclusion therein reached to the effect that the instant appeal is devoid of merits, are very much in accord with mine.

Hence, I hereby without much ado dismiss the appeal and abide by the consequential orders made in the judgment.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

​Following the decision of the Court of Appeal dismissing the appeal by the 1st respondent’s opponent against the Akwa Ibom State National Assembly Election Tribunal, and the order of the Court of Appeal that the 1st respondent be issued a certificate of return and sworn in as the member of the House of Representatives representing Uyo Federal Constituency, by virtue of S. 75 of the Electoral Act 2010 and S.287 (2) of the 1999 Constitution, the Independent National Electoral Commission was bound to issue the 1st respondent a certificate of return within 48 hours of its receipt of the Order and the Speaker of the House of Representatives was bound to swear him in as such a member of the House of Representatives upon receipt of the certificate of return or a certified copy of the said Order.

S. 75 of the Electoral Act 2010 (as Amended) provides that- “(1). A sealed Certificate of return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act: Provided that where the Court of Appeal or the Supreme Court being the final appellate Court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the Order of such Court issue the successful candidate with a valid Certificate of Return. (2).

Where the Commission refuses and/or neglects to issue a certificate of return, a certified true copy of the Order of a Court of Competent Jurisdiction shall, ipso facto, be sufficient for the purpose of swearing - in a candidate declared as the winner by that Court.

​S. 287(2) of the Constitution of the Federal Republic of Nigeria 1999 provides that - “the decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate Jurisdiction to that of the Court of Appeal.”

The appellant as Attorney-General of the Federation of Nigeria on 16-2-2009 wrote a letter to the chairman of Independent Electoral Commission (INEC) (exhibit C) urging the Commission not to obey the judgment of the Court of appeal, describing the judgment as “an obvious desecration of the Institution of the Judiciary.” He also wrote a similar letter (exhibit D) to the Speaker of the House of Representatives advising him not to obey the judgment but “to allow the status quo to remain until the last or final word is heard from the Supreme Court.” The Independent Electoral Commission (INEC) and the Speaker of the House of Representatives complied with the directives of the appellant in the above mentioned letters to them and refused to obey the decision and the Orders of the Court of Appeal in violation of the proviso to Subsection (1) of S.75 of the Electoral Act 2010 as amended and S. 287(2) of the 1999 Constitution.

​The result of this refusal to comply with the decision of the Court of Appeal is that, the respondent’s opponent, one Elder Bassey Etim continued to illegally occupy the seat of Member of the House of Representatives for Uyo Federal Constituency to the exclusion of the 1st respondent who was the candidate adjudged elected and returned as such Member of the House of Representatives. The Attorney General was not a party to the case and did not represent Independent Electoral Commission (INEC) in the case. The parties to that appeal were represented by Legal Practitioners.

The Attorney General not being a party in the case and not being a Legal representative of any of the parties had no official or public interest in the case.

It is glaring that the status quo that the appellant used his office as Attorney General of the Federation to preserve was one in disobedience of an Order of Court and frustration of S75 of the Electoral Act and S.287 (2) of the 1999 Constitution. It was clearly an unconstitutional and illegal status quo.

In his desperation to frustrate the enforcement of the Orders of the Court of Appeal, the appellant turned his office into a Court to review the decision of the Court of Appeal and determined that the judgment was “a desecration of the institution of the Judiciary.” The office of the Attorney General is not a Court and has no power to assume that role. By virtue of S. 246(2) and (3) of the 1999 Constitution, the Court of Appeal is the final Court of Appeal on post-election litigations concerning National and House of Assembly elections.

No authority or person, not even the Supreme Court of Nigeria can review the decision of the Court of Appeal on such post-election matters concerning National and House of Assembly elections.

It is clear from the foregoing that the appellant committed unlawful acts in his official capacity as Attorney general of the Federation for the purpose of giving an illegal advantage or benefit to one Elder Bassey Etim. This is a clear case of criminal abuse of office to the detriment of the 1st respondent, the adjudged winner of the election. The detriment is that he is prevented from enjoying the fruits of his electoral victory as he has not been allowed to occupy the seat he won in the election. This is a personal injury inflicted on him by the appellant.

​The holder of a public office who with malice aforethought uses the public office held by him to commit an unlawful act for the purpose of depriving a person of his lawful right or interest so as to secure an advantage or benefit for himself or another should be personally liable for the deprivation of a person’s lawful right or any injury the person suffers on account of such deprivation.

The use of a public office to commit the unlawful act in pursuit of a private or personal interest will not qualify the act as an official one so as to make the public office or authority vicariously liable for such unlawful act.

Judgment

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal, Calabar Division, Coram Victor Aimepomo O. Omage, JCA, Nwali Sylverter Ngwuta, JCA (as he then was) and Mojeed Adekunle Owoade, JCA, delivered on 22nd November, 2007 which set aside the decision of the trial Court delivered on 23rd September, 2005. Aggrieved by that decision, the Appellant has now appealed to this Court.

The facts of the case leading to this appeal are that on 24th June, 2005, the Respondent as Plaintiff, filed a Writ of Summons at the High Court of Cross River State wherein he claimed against this Appellant as defendant, the sum of N420,000.00 being money paid for supply of 60 metric tons of palm kernel fruits which he failed to perform and also failed to refund despite repeated demands. He also claimed 10% interest on the said sum from the date of judgment till payment. With leave of Court granted on 12th July, 2005 the suit was placed under the undefended list and marked accordingly.

It was adjourned to 26th July, 2005 for hearing.

Upon being served with the processes, the Appellant filed a notice of intention to defend together with a counter-affidavit on 13th September, 2005. The counter affidavit filed by the Appellant disclosed triable issues.

Indeed, in paragraph 24 of the counter-affidavit the Appellant stated as follows:- “The defendant states that the plaintiff from Exhibit L has been supplied with a total of 50 metric tons of fresh fruit bunches between the 3rd of April, 2004 and 25th November, 2004 contrary to his false and fraudulent claims that nothing has been supplied to him since he paid N420,000.00 to Ayip Eku Oil Palm Estate.”

The learned trial judge in a considered judgment found that the money claimed by the Respondent cannot be extracted from the Appellant as he was acting for his principal, Ayip-Eku Oil Palm Ltd. The learned trial judge held as follows:- “Having held as above, no use shall be served in transferring this matter to the general cause list as the present claims cannot be extracted from the defendant on record. The plaintiff’s claims herein are accordingly dismissed against the defendant on record.”

Dissatisfied with that judgment, this Respondent appealed to the Court below which in a unanimous judgment delivered on 22/11/2007 allowed the appeal as follows:- “For these reasons, I am in agreement with the learned counsel for the Appellant that the learned trial judge erred in this case for failing to transfer the suit from the undefended list to the ordinary cause list as provided for in Rule 3(2) of Order 23 of the High Court (Civil Procedure) Rules of Cross River State. Consequently, this appeal is meritorious and it is allowed. The judgment of Eyo E. Ita J, in Suit No.

HC/271/2005 dated 23rd September, 2005 is hereby set aside. It is hereby ordered that Suit No. HC/271/2005 be remitted for trial before another judge of the High Court of Cross River State. There shall be no order as to costs.”

Equally dissatisfied with that judgment, the Respondent in that appeal who is now the Appellant before this Court filed a Notice of Appeal on 21st January, 2008.

At the hearing of the appeal, counsel for the Appellant adopted and relied on their brief of argument filed on 12th September, 2008 in urging the Court to allow the appeal. On their part also, counsel to the Respondent adopted and relied on the Respondent’s brief of argument filed on 23rd December, 2008 in urging the Court to dismiss the appeal.

The appellant nominated a sole issue for determination thus:- “Whether there was any triable issue in the suit justifying the learned trial Judge’s dismissal of it.”

The Respondent also formulated one issue for determination as follows:- “Whether the Court of Appeal was right when it held that the defence canvassed by the Appellant in the trial Court raised a triable issue which justified the transfer of the matter to the general cause list for trial and not a dismissal of the Respondent’s case as the trial judge ordered.”

Now, a careful look at the issue formulated by the Appellant vis-a-vis the Respondent’s version, it would be clear that both parties are canvassing the same issue. I shall proceed to determine this appeal on the issue as formulated by the Appellant, same being relevant and apt to wit:- Whether there was any triable issue in the suit justifying the learned trial judge’s dismissal of it.

In his argument in support of this issue, learned counsel for the appellant submitted that the learned Justices of the Court below erred when they held that the Appellant’s affidavit in support of his notice of intention to defend clearly raised triable issues. Relying on the case of Ataguba & Co. v Gura Nigeria Ltd (2005) 8 NWLR (pt. 927) 429.

Learned counsel for the Appellant stated that looking at the writ of summons and Exhibit B attached to the affidavit in support of Notice of Intention to defend, the 60 tons of oil palm fruits to be supplied to the Respondent was to have come from Ayip Eku Estates Ltd. That the Appellant was only acting as an agent for Ayip Eku Oil Palm Estates Ltd.

He submitted further that the judgment of the learned trial judge which dismissed the suit was correct, having found that there was no cause of action against the Appellant. He contended that the Appellant could not have been the proper party to proceed against as the cause of action would have been well founded if the Respondent had proceeded against Ayip Eku Oil Palm Estate Ltd.

He referred to Afolayan v Ogunrinde (1990) 1 NWLR (pt. 127) 369, Nishizawa Ltd v Jethwani (1984) SC 234 and FMG v Semi (1990) 4 NWLR (pt. 147) 668. ​ Counsel submitted that the decision of the Court below that the suit be remitted back to the High Court and heard on the general cause list was not in line with the decision in UBA Plc v Jargaba (2007) 11 NWLR (pt. 1045) 247 at 273. That the transfer of the suit was dependent on leave being granted to defend by the Court and the power to grant leave to defend is discretionary and not mandatory.

In response, learned counsel for the Respondent referred to the case of Dalla Air Services v Sudan Airways Ltd (2004) All FWLR (pt. 238) 684 to submit that the learned trial Judge misconceived the nature of the proceedings and his powers on matters brought under the undefended list which he contends does not involve hearing of the matter to make findings and final conclusions. Counsel contends that the learned trial judge wrongly came to a conclusion after examining the affidavit of the parties when he dismissed the suit on the ground that some legal defence had been raised by the defendant.

Learned counsel to the Respondent submitted further that the Court of Appeal was right when they held that the learned trial Judge was in error in dismissing the case of the Plaintiff rather than transfer same to the general cause list. Counsel lauded the position of the Court below that the duty of the trial judge was to determine at that stage if the facts disclosed by the defendants’ affidavit prima facie afforded a defence, not necessarily a complete defence but which shows a triable issue.

He observed that once the facts deposed to in the affidavit of the defence raise triable issues, the only course open to the learned trial Judge was to transfer the suit to the Ordinary Cause List under Rule 3(2} of Order 23. He referred to the cases of Nishizawa Ltd. vs Jethwani (1984) 12 SC 234, FMG v Sani (1990) 4 NWLR (pt 147) 688, Alhaji Abdul Yahaya Bawa v Sheleba Phenias (2007) 4 NWLR (pt. 1024)251 at 266.

With respect to the argument by learned counsel to the Appellant that the learned trial Judge has discretion to grant leave to the defendant to defend, therefore since leave was not granted, the learned trial Judge was not obliged under the rule of Court to transfer the matter to the general cause list, counsel to the Respondent submitted that a trial Judge has no discretion here but to follow the rule and the provisions strictly.

He submits that  by Order 23 Rule 4, a trial Court can only refuse to grant leave to defend where he finds no defence on the merit or triable issues disclosed in the affidavit of the defendant and must then enter judgment for the plaintiff. He referred to the case of Amede vs UBA (2008) 8 NWLR (pt 1090) 623.

The various rules of Courts provide for cases involving liquidated money demand to be placed on undefended list and heard expeditiously without the Court having to go the whole hog of a full blown trial with attendant expenses, frustration and delay. The procedure is deliberately designed to allow for quick dispensation of justice.

Order 23 of the High Court (Civil Procedure} Rules of Cross River State provides for this special procedure and it reads as follows:- Order 23 (1) Whenever application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark the Writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case. (2) There shall be delivered by the plaintiff to the Registrar upon the issue of the writ summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service. (3)(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just. (2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List and the Court may order pleadings, or proceed to hearing without further pleadings. (4) Where any Defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally. (5) Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under Rule 4.

Order 23 Rule 3(1} and (2} above, just like in every High Court rules makes explicit provision of a what the Court must do where a defendant’s affidavit in support of Notice of Intention to defend discloses a defence on the merit, and that is to give the defendant leave to defend the action and remove the suit from the undefended list and place it on the ordinary cause list for hearing.

See Intercontinental Bank Ltd v Brifina Limited (2012) 13 NWLR (pt. 1316) 1, Made v Aborishade (1960) SCNCR 398, Owoade v Omitola (1988) 2 NWLR (pt. 77) 413, Bona v Asaba Textile Mill Plc (2013) 2 NWLR (pt.1338) 357, MC Investments Ltd & Anor v Core Investments & Capital Markets Limited. There is no provision in the rules which allows the Court to dismiss the suit where the affidavit in support of notice of intention to defend discloses triable issues.

In the words of my learned brother, Galadima, JSC in the case of Intercontinental Bank Ltd v Brifina (supra), he observed as follows:- “In consideration of an action brought under undefended list by the plaintiff, the trial Judge is faced with a decision whether to hear the case or transfer it to the general cause list.” It follows therefore that in an action brought under the undefended list there are only two options available to the Court which are either that the suit be heard under the undefended list procedure or transferred to the general cause list.

Permit me to reiterate the trite position of the law that the rules of Court are meant to guide the Court in the proper adjudication of cases. The rules of Court are meant to be obeyed. SeeStowe v Benstowe (2012) 9 NWLR (pt 1306) 450, Afolabi v Adekunle (1983) 14 NSCC 398 at 405, University of Lagos v Aigoro (1985) 1 NWLR (pt 1) 143, Fidelity Bank Plc v Chief Andrew Monye & Ors (2012) 10 NWLR (pt 1307) 1, Nigerian Agricultural and Co-operative Bank Ltd v Mr. Lewechi Ozoemelam (2016) 9 NWLR (pt 1517) 376.

Order  23 Rule 3(1} and (2} of the High Court (Civil Procedure} rules of Cross River State earlier reproduced in this judgment employs the use of the word “may” which in this context points to the mandatory realm. In construing the word, the authors of the Black’s Law Dictionary are of the view that:- “In dozens of cases, Courts have held may to be synonymous with shall or must, usually in an effort to effectuate legislative intent.” It is used in the above provision in a directory sense and not in a permissive sense of that word.

In the case of Amadi v NNPC (2000) 10 NWLR (pt 674) 76 at 97 – 98, this Court made the matter clearer where Uwais, JSC, (as he then was} observed as follows:- “No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try and get at the real intention of the legislative by carefully attending to the whole scope of the statute to be construed.”

From the facts of this case, the issue is not whether the Appellant was the proper party to the suit of the Respondent at the trial Court but whether the learned trial judge was right to dismiss the suit upon being satisfied that the defendant’s affidavit disclosed triable issues. I agree with counsel to the Respondent that where the affidavit of the defendant prima facie discloses triable issues, the only discretion afforded the Court under the rule is to grant leave to the defendant to defend the suit.

In the instant case, a scrutiny of the Appellant’s counter-affidavit with attached documents in support of his notice of intention to defend the suit at the trial Court would reveal that he had a prima facie defence to the action. In the circumstance, the trial Court ought only to have transferred the suit to the ordinary cause list as prescribed by the rules of Court. He was wrong to have dismissed the suit without hearing the case. The sole issue in this appeal therefore is resolved against the Appellant.

Having resolved the sole issue against the Appellant, I hold that this appeal lacks merit and it is accordingly dismissed. The judgment of the Court below is hereby affirmed. There shall be no order as to costs. Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Okoro, JSC, just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal lacks merit and should be dismissed. I too will dismiss it. Appeal dismissed.

MUSA DATTTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother, John Inyang Okoro, JSC just delivered, I adopt same as mine in dismissing the unmeritorious appeal. I abide by the consequential orders made in the lead judgment including the order on costs.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I totally agree with his reasoning and conclusion therein.

He addressed the sole issue in this appeal meticulously and decisively, and there is nothing that I could add that would make any difference or enhance the well-articulated points he made in the lead judgment, therefore, I will adopt his reasoning as mine, and it is on that premise that I also dismiss this appeal. I abide by the consequential orders in the lead judgment. Appeal dismissed.

EJEMBI EKO, J.S.C.: The issue in this appeal is whether the suit of the undefended list at the trial Court disclosed any triable issue or prima facie defence that would warrant the Court transferring to the General Cause List for hearing on evidence inter partes. As my learned brother, JOHN INYANG OKORO, JSC puts it in the judgment just delivered-there are only two options available to the Court which are either that the suit be heard under the undefended list procedure or transferred to the General Cause List?

I agree under Order 23 Rule 3 of Cross River State High Court (Civil Procedure) Rules, under consideration; there is no provision empowering the trial Court to dismiss the suit in limine upon the Notice of Intention to Defend verified by an affidavit. Once the supporting affidavit verifying the facts on which the defendant proposes to defend the suit discloses a triable issue, or discloses a defence, the trial Court is only obliged to transfer the suit to the General Cause List. Thereafter the defendant may file whatever preliminary objection he may have to the competence of the suit.

I also agree that the appeal is lacking in substance, and it is hereby dismissed with no order as to costs.

Judgment

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment ): This appeal is against the judgment of the High Court of Lagos State (hereinafter addressed as “the lower Court”), presided over by Honourable Justice O. A. OGALA, in Suit No LD/132/2012 delivered on 14th November, 2016. Before the lower Court, the Appellants were the defendants, whilst the Respondent was the Claimant. The brief facts of this case are that the Respondent is a company with its office at No 5 Bombay Cresent Apapa, Lagos.

The 1st Appellant is a shipping company, common carrier for reward, with office at Karachi, Pakistan and the owners of MV Bright Star.

The 2nd Appellant is a Limited Liability Company incorporated under the laws of the Federal Republic of Nigeria, and a local corresponding agent of 1st Appellant. ​The Respondent averred that the 1st Appellant had employed its services on several occasions to perform different contracts including repair work on several machineries/auxiliary machines, exhaust valves, fabrication of spares, rental of the Respondent’s 500KVA, 400 volts generating set, and two other generating sets belonging to the Respondent all in respect of the 1st Appellants’ ship, MV Bright Star 1.

The Respondent claimed that on or about 3/3/2006, the 1st Appellant requested it to supply to it, a brand new generating set 350 KVA 440 Volts 60 HZ. That it submitted its quotation for N10 Million to the 1st Appellant, which it accepted. Respondent then demanded 50% advance payment from 1st Appellant. This was declined by 1st Appellant. Respondent then demanded for a guarantee from any of the companies 1st Appellant had dealt with in Nigeria. A Mr.

Pam Bot Mang the Managing Director of 2nd Appellant was introduced to the Respondent, and he furnished it with the required payment guarantee and backed it up with a first City Monument bank cheque postdated to 24/3/2003 in favour of the Respondent being the value of the contract.

Thereafter Respondent armed with the letter of guarantee, postdated cheque and invoice from Generator Warehouse Ltd, the MD of the Respondent went to its bank, the then Citizen’s bank Apapa Branch and requested for finance to supply the generating set. ​Respondent stated that after the meeting with the bank officials Mr. Pam Bot Mang convinced it to buy the generating set from Mikano International Generator Ltd. After the inspection of the generating set by the Master of the 1st Appellant, Respondent arranged for the delivery to the ship on 8/3 2006.

Mikano delivered and installed the generating set on 11/3/2006. The ship sailed on 20/2/2006. It was the Respondent’s belief that the 1st Appellant would before the 24th day of March, 2006 pay the value of the cheque into the 2nd Appellants’ account to enable the 2nd Appellant have sufficient funds to be drawn by the Respondent. The Respondent contacted the 2nd Appellant before that date to find out who was going to pay Mikano in view of the postdated cheque. The 2nd Appellant agreed to pay Mikano and requested the Claimant to return the cheque for N10 million.

The Respondent agreed but asked 2nd Appellant to send its cheque for 2.8 Million in exchange for the N10 million cheque. The 2nd Appellant failed to send the cheque for N2.8 Million. Consequently on 29/3/06, the Respondent paid the cheque into its bank account. The bank informed the Respondent that the cheque was dishonoured due to insufficient funds. Respondent found out that Mikano had been paid by the 2nd Appellant. The Respondent instructed its counsel to write the 2nd Appellant.

When the Respondent got no reply from 2nd Appellant, it petitioned the Ship Chandlers Association of Nigeria, and 2nd Appellant paid N200,000.00 only. The Respondent instituted an action at the Federal High Court, which was struck out.

The Respondent at the lower Court filed an action against the Appellants, and by its amended Statement of Claim dated July 2005, claimed as follows. a) The sum of N10, 000,000. (Ten Million Naira) for the supply of a 300 KVA generating set to the 1st Defendant pursuant to a purported contract between it and the 1st Defendant Or alternatively b) The sum of N2,800,000.00 (Two Million, Eight Hundred Thousand Naira) being the profit due to the Claimant upon the said contract. c) Interest at the rate of 25% per annum from 24/3/2006 when the payment was due on the contract payment, and d) 12% Interest until judgment sum is paid. e) The Claimant also claims N500,000.00 (Five Hundred Thousand Naira) as damages for breach of contract and f) N500,000.00 (Five Hundred Thousand Naira) as general damages.

After the hearing of the said suit the learned trial Judge, gave judgment in favour of the Respondent as contained at pages 105 to 122 of the Record of appeal. Being dissatisfied with the said judgment the Appellants have now filed this appeal pursuant to their notice of appeal filed on 13/2/17, consisting of four grounds of appeal which is at page 123-126 of the record. The reliefs sought from the Court of Appeal are: AN ORDER allowing this appeal and setting aside the said judgment of the lower Court in its entirety.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of Argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 3rd of November, 2022. During its hearing, learned counsel for the Appellants G. A Daniel Esq. adopted the Appellants’ brief of Argument, filed on 5th March, 2019 but deemed properly filed and served on the 6th of March 2019 as representing his arguments for the appeal.

He urged the Court to allow the appeal. ​Similarly, Roseline Dikeocha Esq. adopted the Respondent’s brief of argument, filed on 29th March 2019 as her reactions to the appeal. She urged the Court to dismiss the appeal.

In the Appellants’ brief of argument, counsel distilled three issues for determination to wit: a) Whether the trial Court was right in arriving at the conclusion that the Respondent did perform the said contract and was entitled to the reliefs sought thereof. b) Whether learned trial Judge was right in refusing to accept that Mikano Nigeria Ltd supplied the said generating set. c) Whether the Court was right in granting judgment to the Respondent for an estimated profit due from the purported Contract which the Respondent was unable to perform. ln the Respondent’s brief of argument, learned counsel crafted two issues for determination to wit: 1.

WHETHER THE TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENT PERFORMED THE CONTRACT AND WAS ENTITLED TO THE RELIEF SOUGHT. (PERFORMACE OF CONTRACT ISSUE) 2. WHETHER THERE WAS ANY CASE OF DELAY, INABILITY, OR UNREADINESS TO PERFORM ON THE PART OF THE RESPONDENT? (DELAY, INABILITY, OR UNREADINESS TO PERFORM ISSUE) ​A close look at the two sets of issues shows that they are identical in substance. In fact, the Respondent’s issues can be conveniently subsumed under the Appellants’ issues.

For this reason of sameness, l will decide the appeal on the issues nominated by the Appellants, the undoubted owners of the appeal. Arguments on the Issues: Issue 1 Learned counsel for the Appellants submitted in respect of their first issue for determination in relation to the 1st Ground of Appeal that, the learned trial Judge erred in law when she held inter alia as follows: “The Court is satisfied with the evidence before it that the Claimant did perform its obligations under the contract with the 1st Defendant.

It is also evident from the facts before it that the Claimant was clearly involved in transactions leading to the installation of the said generator.” ​Learned counsel referred to the testimony of Respondent’s witness during his cross-examination, and noted one fact which was certain and clear, that the Respondent could not finance the purchase and supply of the said generating set on behalf of the 1st Appellant as he did not have the money to do so. He referred this Court to the Respondent’s testimony at pages 82 to 88 of the Record of proceedings.

It was stated further on behalf of the Appellants that the Respondent was requested by his Bank, who supposedly were to finance the procurement of the said generating set on its behalf, to provide counterpart funding of 20% of the cost of the generating set, which the Respondent could not come up with. Consequent thereto the Appellants decided to source for it elsewhere. It is further submitted that the Respondent unequivocally stated in his evidence during cross-examination that “No, the Bank did not agree to pay for the generator upon one visit”.

See paragraph 7 at page 82 of the Record of Appeal. Learned counsel stated the law that generally where a party is expected to perform a contract and fails to do; such a contract can be repudiated by the other party for non-performance. This principle which can be best described as “total failure of consideration”, has been applied by the Nigerian Courts in a plethora of cases. ​The Supreme Court’s position further buttressed this position in the case of  Pada Chabasaya vs. Joe Anwasi (2010) 42 Pt. 1 NSCQR AT page 435 per A.M Muktar JSC. And in the case of Okoebor vs. Eyobo Eng.

Services Ltd. (1991) 4 NWLR (Pt. 187) AT page 555 ratios 3 and 4. Ratio 4, the Court of Appeal also held:- “If a person with whom a contract … is made is to enforce it, consideration must have been given by him to the promisor” Furthermore, the Appellants submitted that, it is the position of the law that a person must be ready and willing to perform his obligations under a contract, and that where he is willing but not ready i.e. not able to perform at least according to the terms of the contract, then he has repudiated the contract as much as a person who out rightly refuses to perform.

The above position was maintained in the case of Universal Cargo Carriers Corporation vs. Citati (1957)2 Q.B 401 at page 437. It is submitted by Appellants’ counsel that the above decision is on fours with the Respondent’s case, who obviously was though willing to perform the said Contract but was incapable of doing so.

This Court is urged to so hold. ​It is the Appellants’ submission therefore that in view of the above position of the law, the learned trial Judge therefore erred in law to have reached the conclusion that “The Court is satisfied with the evidence before it that the Claimant did perform its obligations under the contract with the 1st Defendant.” The Appellants premised on the law, submitted further that the Respondent’s involvement or participation leading to the installation of the said generating set, which he could not pay or finance for its procurement on behalf of the 1st Appellant, cannot be seen as performance of the said purported Contract to have informed the learned trial Judge in arriving at that decision.

Appellants noted that the Respondent’s presence on board the vessel of the 1st Appellant herein was initially, basically to carry out other sundry works and minor engineering repairs on the vessel, for which he was hired to do, and not solely for the installation of the said generating set. ​The Appellants stated the law, that where in a Contract a party has neither undertaken any obligation, or has not performed his own part of the agreement, such a contract will be regarded as unenforceable, for want of consideration, as liability thereunder can only arise where there is at least performance by the suing party.

See the case of Pada Chabasaya vs. Joe Anwasi supra. Appellants’ counsel reiterated the fact that the learned trial Judge erred in law when she came to the conclusion that, she was satisfied that the Respondent’s involvement in the installation of the said generating set, tantamount to performance of his obligations under the said contract to supply the said generating set, he urged this Honourable Court to so hold.

ISSUE 2 Appellants’ counsel in respect of the 2nd Ground of Appeal, submitted that the learned trial Judge was also perverse in her judgment, and in the exercise of her judicial discretion, when she held that: “There is nothing before the Court to establish that the sum was paid to Mikano International Limited and clearly Mikano is not asking for payment of same.” ​From the pleadings and testimonies of both parties before the lower Court, it was quite evident that Messrs Mikano Nigeria Ltd was alleged to have supplied the said generating set to the 1st Appellant.

See paragraph 23 and paragraph 5 (viii) of the Respondent’s Statement of Claim and the Appellants’ statement of Defence found at pages 5 and 14 respectively of the Record of appeal. The proforma invoice from Mikano Nigeria Limited was also tendered in evidence by the DW1 on behalf of the Appellants.

Appellants’ counsel submitted that it is pertinent to state that, neither was the Appellants’ averment in the said paragraph 5 (viii) of its Statement of Defence to that effect, contradicted nor was the proforma invoice tendered in evidence objected to by the Respondent at trial, yet the learned trial Judge found as above. Section 75 of the Evidence Act is clear that where facts or evidence remain uncontroverted they are deemed as admitted. This was the position in the case of IITA vs. AMARANI (1994) 3 NWLR (Pt. 332) AT page 303, ratio 13.

Therein the Court of Appeal held that:- “…evidence not controverted or discredited or challenged ought to be accepted as proving an existing or alleged fact”. ​Also in the case of Osuji Vs. Ekeocha (2009)16 NWLR Pt. 1166 AT page 94 ratio 22(c) the Supreme Court held that a decision of a Court will be held to be perverse where inter alia:- “c) The Court shuts its eyes to the obvious”. And also in the case of NWANGWU VS.

FBN PLC (2009) 2 NWLR Pt. 1125 AT page 208 ratios 9, the Court of Appeal defined a perverse decision of the Court as “where a Court misconceives the issues presented before it” See also the case of Palm Beach Insurance Co Ltd vs. Bruhns (1997) 9 NWLR (Pt. 519) AT page 84, ratio 4. The Court of Appeal therefore has a duty to examine the grounds, the conclusions or inference of the Court below upon which the said judgment was based and if convinced that they were erroneous, then the Court of Appeal will be justified in taking a different view on such a decision.

See the case of RAMANU ATOLAGBE VS., KOREDE OLUYEMI SHORUN (1985)4 SC Prt 1 page 250 AT page 285. It is also in the same vein that the Court of Appeal in the case of NBC vs.

OLAREWAJU (2007) 5 NWLR Prt 2017 AT page 260 ratio 8 line 3 held :- “An Appellate Court may only interfere when findings are perverse or wrong because of some principles of law or procedure. …” ​In the light of the above decisions it was argued for the Appellants that this Honourable Court has the inherent right to interfere with the decision of the lower Court which has shown substantial miscarriage of justice, and which has adversely affected the Appellants’ standing with the Central Bank of Nigeria. The Appellants, therefore, holds that the learned trial Judge’s decision was perverse.

The Respondent had on the one hand contended that, he supplied the said generating set. Respondent on the other hand admitted that Mikano Nigeria Limited supplied the said generating set. The position of the law is clear that when evidence of a witness in Court is different from the facts pleaded or is contradictory to the facts pleaded such evidence should be rejected by the Court. See Ige vs. Akoju (1994) 4 NWLR (Part340) 535 AT 546 paragraph B per Ogundare, JSC.

The Appellants submitted further that if the Respondent had actually supplied the said generating set, it is only reasonably expected that after supplying the said generating set, the Respondent would have interfaced and/or liaised with Mikano Nig. Ltd, to monitor or ensured or secured payment of its money or any commission therefrom. And that under the law of evidence, “he who asserts must prove”. The burden or onus of proof therefore was on the Respondent to show that the generator was paid for. This burden as far as the Appellants are concerned has not been discharged by the Respondent.

See: Union Bank of Nigeria vs. Professor A.O Ozigi (1994) 1 NWLR (Pt. 219) page 619. Learned counsel also submitted that Mikano Nigeria Limited, who eventually supplied the said generating set, was not made a party in the action at the lower Court.

The Appellants submitted that in view of the above argument and the various judicial authorities, the learned trial Judge erred in law to have come to the conclusion that “There is nothing before the Court to establish that the sum was paid to Mikano International Limited and clearly Mikano is not asking for payment of same.” ISSUE 3 The Appellants contended with regards to their 3rd issue for determination that the learned trial Judge erred in law when she held that:- “From the facts before the Court, it does appear in the circumstance of this instant case that what the Claimant would be entitled to should be a fair value of the profit he would have made from the contract.” The Appellants submitted that the conclusion reached by the trial Judge thereby granting the Respondent a fair value of the profit he would have made amounts to granting the Respondent anticipatory profit.

That the position of the law is clear, that the Courts will not award anticipatory profit or damages in the absence of proof. This was the position of the Supreme Court in the case of Artra Industries Nigeria Limited vs NBCI (1998) 4 NWLR, Prt 546 AT page 362, ratio 4 per Onu, JSC. The Appellants further contended that the Respondent is not entitled to any anticipatory profit on a contract that it did not perform, and the learned trial Judge erred in this regard. ​The Appellants have raised 4 grounds of Appeal, and 3 issues for determination by this Honourable Court.

As expounded therein the Appellant submits that: 1. The learned trial Judge therefore erred in law to have reached the conclusion that the Court is satisfied with the evidence before it that the Claimant did perform its obligations under the contract with the Appellant. 2. The learned trial Judge was wrong in concluding that the contract was performed by the Respondent, and not Mikano Nigeria Limited in the face of obvious evidence before the Court. 3. The learned trial Judge was also wrong in awarding anticipatory profits to the Respondent on a contract he did not perform.

In conclusion, the Appellants submitted that this appeal be allowed by this Honourable Court, setting aside the entire judgment delivered on the 14th day of November 2016, by Honourable Justice O. A. OGALA (Mrs.), of the Lagos High Court. The Respondent’s counsel on issue 1, in her brief of Argument filed on the 29th of March 2019, submitted that: i. EXHIBIT CW1A is the quotation from the Respondent dated 3rd March addressed to the master/owners of MV Bright Star, the 1st Appellant’s vessel. ii.

Exhibit CW1B is the letter of guarantee dated same 3rd March 2006, from the 2nd Appellant to the Respondent. iii. Exhibit CWIC, is the post-dated cheque dated 24/3/2006, issued by the 2nd Appellant to the Respondent in addition to the above letter of guarantee. iv. Exhibit CW1D, is the pro forma invoice, dated same 3rd March 2006, from Generator Warehouse Ltd. Ikoyi, to the Respondent, showing that the Respondent swung into action immediately. v.

Exhibit CW1E, is a letter from the Respondent to the Traffic Manager, NPA, Apapa Port, dated 4th March 2006 (the immediate following day) applying to bring in “A BRAND NEW GENERATOR ORDERED BY CAPT. MV. BRIGHT STAR, FOR THEIR PERSONAL USE, 350 KVA 440 VLTS 60 112”. Thus the Respondent has already concluded an arrangement with a dealer (Mikano as would soon be seen from the evidence) for the purchase of the generator. vi.

Exhibit CW1F, is another letter from the Respondent, though as author, written in conjunction with and signed by the 1st Appellant dated 11/03/2006, addressed to the Chief Security Officer, Apapa main gate, Apapa Quays, requesting for permission to bring in the generating set. vii. Exhibit CW1G, is a letter dated 11/03/2006, though without addressee, but was written to and received by Master M.V.

Bright Star, reporting completion of the assignment for the supply of the generator. ​Learned counsel enjoined this Court to read Exhibits CW1A-G sequentially, and those Exhibits alone, even without oral evidence, in that they tell the story of the contract for the supply of the generator from beginning of the transaction to performance/delivery. She stressed that Exhibits CW1H to CW10 are correspondence showing other transactions with the 1st Appellant before, and after the transaction that is now the subject matter of this suit.

Thus there was an ongoing relationship with the 1st Appellant dating from February 2006, before the emergence of the 2nd Appellant on the 3rd of March 2006, and this continued till after the supply of the brand new Generator subject matter herein. The oral evidence of the Claimant’s sole witness tallies with the above documentary evidence. ​Learned counsel submitted that the Respondent by his written testimony on oath, established before the lower Court that as soon as he got the quotation approved, and he got the letter of guarantee and postdated cheque, he swung into action.

Armed with these documents, the Respondent proceeded first to his generator dealer i.e. Generator Warehouse Ltd. at Ikoyi who gave him an invoice for the specified Generator, Exhibit CW1D, after which he proceeded to his bank. The bank was willing to finance the transaction and to demonstrate its willingness the bank proceeded to the 2nd Appellant’s office to confirm the post-dated cheque and letter of guarantee from the 2nd Appellant who issued them. However, after the bank’s visit, the 2nd Appellant’s Managing Director, Mr.

Pam Bot Mong invited the Respondent and persuaded the Respondent to purchase the Generator from his bosom friend, Mikano, and save himself all the protocol of the bank and interest the bank will charge. The said Pam Bot Mong assured the Respondent that Mikano will give him, the generator on his (Pam Bot Mong’s) own recognizance without asking for payment in advance and the Respondent agreed. Mr.

Pam Bot Mong made the Respondent understand that since the 2nd Appellant has risked a lot by issuing the guarantee and post-dated cheque, the Respondent could in return show him (Pam) appreciation as he deems adequate. ​The Respondent then made known to Pam Bot Mong the fact that Generator Warehouse Ltd. Has given it to him for 7 million, and showed him the invoice, Exhibit CW1D and Pam Bot Mong assured him that prices of Generator are the same everywhere.

The Respondent thus also established that he did not eventually use the bank’s facility, or Generator Warehouse Ltd. because the 2nd Appellant’s Managing Director Pam Bot Mong persuaded him to buy from his bosom friend Mikano. The Respondent then went back to fetch the captain and he, together with the Captain and Pam Bot Mong, then went to Mikano for inspection the same day, 3rd March 2006. After the inspection, the Respondent arranged with Mikano to deliver the Generator on Wednesday 8/3/2006.

DW1, testifying for the Appellant, during cross-examination admitted that the bank officials came to his office, and also that himself (DW1), the Respondent witness (CW1), and the 1st Appellant’s Captain went to Mikano. This corresponds with the Claimant’s testimony on oath that, rather than go to Generator Warehouse Ltd, as earlier scheduled, the Respondent took the captain to Ikeja, Mikano International Generators.

Learned counsel referred to Exhibit CW1E, letter dated 4/3/2006, which shows that having arranged for delivery on 8th March, 2006, the Respondent went back to the Port and immediately wrote Exhibit CW1E the very next day 4th of March 2006, seeking permission from the Ports Authority to bring in the New Generator. There was no waste of time at all. The Respondent stated that the Generator was eventually delivered on the 11th of March instead of 8th of March.

Exhibit CW1F dated 11th March, 2006, shows that the Respondent cleared the way for passage of the Generating set on that 11th March, by writing to the Chief Security Officer of NPA, and getting the captain to co-sign the letter, though on the Respondent’s letterhead. And after the generator was installed, the Claimant wrote to formally inform the Defendant of the completion of the assignment. Exhibit CW1G, on page 40 of the Record. The Master of the 1st Appellant vessel acknowledged this letter.

Learned counsel submitted that all documentary evidence in the matter points to the fact that the Respondent performed the contract from beginning to delivery. And no oral evidence as to non-performance can defeat the documentary evidence of the Respondent. See the case of Stephen Obatan vs Dr. Momodu Awudu (2005) 2 CLRN 55. ​It was noted by learned counsel that, the Appellant did not discredit any of the documentary evidence of the Respondent, even during cross-examination, and that the trial Court was right to act on them. See the case of OKOEBOR VS POLICE COUNCIL (2003) 40 WRN p. 93 at 98.

Learned counsel in his further submissions, contended that the issue of anticipatory profit argued by the Appellants in paragraph 5.3 and 5.4 of the Appellant’s brief is not applicable, because here the contract was performed, and the profit has already been earned, what was remaining was for the Respondent to be paid the contract sum. In the light of the foregoing, learned counsel submitted that the trial Judge was right in holding that, the Respondent performed the contract and was entitled to the relief sought and he urged this Court to resolve this issue in the Respondent’s favour.

DELAY, INABILITY OR UNREADINESS TO PERFORM ISSUE The Appellants’ case is: I. That the Respondent did not perform the contract because he could not finance it. That several weeks after issuance of Exhibits CW1B and CW1C the Respondent could not come up with 20% down payment requested by the bank. II. That as a result of the delay 1st Appellant’s Vessel was incurring demurrage. III. That the 2nd Appellant on 6/3/2006 then contacted Mikano who supplied the Generator. IV.

That the 2nd Appellant then informed the Respondent verbally and in writing of the cancellation of the contract vide Exhibit DW1B dated 8/3/2006. V. That the 2nd Appellant procured the Generating set from Mikano International generators for the sum of N9,500,000 (Nine Million, Five Hundred Thousand Naira) as sum much higher than what the Respondent had quoted for.

See para. 3.2, 3.3, 3.4, 3.10 and 3.11 of the Appellant’s brief, and paragraph 5(v- viii) of the testimony on oath of DW1 on page 13-14 of the Record. ​Learned counsel referred to the two things admitted by the Appellants’ from the above underlined areas of the testimony on oath: i. That the 2nd Appellant was aware of the quotation from Generator Warehouse Ikoyi. Then why would he pay more to Mikano? ii.

That the 2nd Appellant said he procured the Generating Set from Mikano, meaning, he wanted to displace and usurp the position of the Respondent who was commissioned to procure same, and who did procure same from Mikano with the persuasion of the 2nd Appellant’s Managing Director. It is obvious from testimony of DW1, that the 2nd Appellant awarded the contract to itself and procured the generator from Mikano. The contract was never re-awarded to Mikano.

The summary of the Appellants’ case as shown from the documentary evidence tendered by the Appellants is reproduced: The 1st Appellant approved the Respondent’s quotation of Friday, 3/3/2006, the 2nd Appellant guaranteed this with the letter of guarantee dated 3/3/2006 i.e. Exhibit CW1B, and cheque post-dated to 24/3/2006 (Exhibit CW1C). Over the Weekend (two days after), the 2nd Appellant cancelled the contract and awarded it to Mikano who on Monday 6/3/2006 gave its quotation to the 2nd Appellant i.e Exhibit DW1D.

And on Tuesday being 7/3/06 the 2nd Appellant who had already just been appointed Protective Agent, was reporting to the Manager overseas vide Exhibit DW1A (e-mail dated Tuesday 7th March 2006) that the Respondent could not perform and because of that he awarded the contract to Mikano. Fund had already been disbursed to the 2nd Appellant in consideration of the post-dated cheque issued to the Respondent by the 2nd Appellant. On Wednesday, 8/3/2006 the 2nd Appellant, vide Exhibit DW1B referring to a purported cancellation of the transaction purportedly asked the Respondent to return the Cheque.

However, the quotation from Mikano (Exhibit DW1D) as can be seen from the above documentary evidence did not come “several weeks after the issuance of letter of guarantee and post-dated cheque, instead it came two days after, on Monday, 6th March 2006 being the immediate next working day after the weekend of Friday 3rd, March, 2006.

The e-mail (Exhibit DW1A) dated Tuesday 7/3/2006 reporting that the Claimant was unable to perform did not also come several weeks after, but came after four days (weekend inclusive) of the contract and three days after the claimant had written to the Port Authority for permission to bring in new generator. See Exh. CW1E of 4/3/06. ​Exhibits DW1A (the email dated 7/3/2006) also show that the defendant requested for and was appointed protective agent after he got involved in this transaction as a guarantor, thus he was not so previously.

Contrary to or despite Exhibits DW1A (the email of 7/3/06) and Exhibit DW1B (the letter of 8/3/2006), purporting to have cancelled the cheque, the 1st Appellant’s captain co-signed Exhibits CW1F (letter dated 11/3/2006) with the Respondent after these exhibits, in the cause of bringing in the Generator. Both of them not knowing the grand plan of the 2nd Appellant to edge out the Respondent and retain the value of the post-dated cheque.

Now, in dealing with the question whether the Respondent was unable to get the bank to finance the transaction and thus delayed, learned counsel raised the following sub-issues arising under this issue: 1. How long did the Respondent have to transact with the bank and supply? 2. Was time stated to be of such essence? 3. Even if time was stated to be of such essence, did the Respondent delay? 4. Can the 2nd Appellant, a non-party to the contract between the 1st Appellant and the Respondent repudiate same?

Learned counsel answered these questions one after the other as follows: HOW LONG DID THE RESPONDENT HAVE TO TRANSACT WITH THE BANK AND SUPPLY? Learned counsel answered that Respondent had only one day, going by the Appellants’ evidence, nay, maybe half a day or less, because the 1st Appellant’s approval and the letter of guarantee were on Friday 3rd March, whereas by Monday 6th of March the contract had purportedly been cancelled and awarded to Mikano. See Exhibit DW1D.

So the Respondent had only half day of Friday to get the bank to release funds since the bank did not work on Saturday and Sunday. Counsel rightly quoted the Respondent as saying that the bank did not agree to pay for the generator upon one visit. Of course not! No bank does that. You apply for the loan and if the bank is interested in granting it, you give the bank time to investigate and carry out some documentation, which in this case, the bank did by visiting the 2nd Appellant for verification of documents. WAS TIME STATED TO BE OF SUCH ESSENCE?

Learned counsel submitted that there was nowhere in the contract between the 1st Appellant and the Respondent, where time was stated to be of essence at all. Nor did the Appellants plead in their defence that time was of the essence. DW1, stated that the generator was to be supplied ASAP i.e. as soon as possible but this was not supported by evidence oral or documentary. However, even if it were, then it means there was no urgency attached.

Learned counsel cited the case of Warner & Warner International Associates (Nig.) Ltd v F.H.A 1993 (LPELR)-3471 (SC) It was held that: Time will be of the essence if the contract expressly makes it so or if there are clauses showing that the parties intended it to be of essence, or if after a delay by one of the parties, the other gives a notice, making time the essence. It was pointed out by learned counsel that, the Appellants did not show the Court the urgency that caused it to cancel the contract, and award same to Mikano after two days of award of same to the Respondent.

The Appellants could not establish any delay on the part of the Respondent in performing the contract, or that they warned the Respondent and gave him notice of a deadline to perform. See the case of Biyo vs Aku (1996) 1 NWLR (pt. 422) 1 at 40. ​It was submitted by learned counsel that, time was not stated to be of the essence at the commencement of this contract, nor at any stage at all, and the Respondent was not given any notice requiring performance. EVEN IF TIME WAS STATED TO BE OF ESSENCE, DID THE RESPONDENT DELAY OR SHOW UN-READINESS TO PERFORM?

Learned counsel further submitted that the Appellants’ plea of delay, un-readiness or inability to perform fails, as it is not supported by evidence.

Evidence before the Court reveals that the Respondent swung into action immediately, sourced for generator and got the exact specification at Generator Warehouse, Ltd Ikoyi, got the bank to agree to finance same, and the bank haven so agreed, visited the second Appellants’ office to confirm and verify documents, and eventually the Respondent took the Captain to Mikano to select the desired specification of the Generator, all on 3rd March, 2006, the same date the contract was awarded.

Then the immediate following day 4/3/2006, the Respondent wrote Exh CW1E to the Port Authority, requesting for permission to bring in a new Generator. This letter already shows the Respondent’s state of mind – performance with dispatch – optimism- readiness, ability to perform – which negates the existence of any problem having to do with bank refusal to finance. The Respondent testified that he never encountered such problem with his bank. Otherwise, he would not have written the letter of 4/3/2006. Exhibit CW1E, cleared the way for the Generator to come in.

Learned counsel noted that the Appellants have submitted in paragraph 4, of their brief of Argument, that it was Mikano that supplied the Generating set, the Appellants could not prove that several weeks elapsed before purportedly awarding the contract to Mikano, as the quotation from Mikano was made two days after the guarantee and post-dated cheque were given. ​It is submitted by learned counsel that, the contract was not awarded to Mikano, but that the Generator was purchased from Mikano by the Respondent as the middleman, just as it could have been purchased from Generator Warehouse lkoyi Ltd.

Therefore purchasing the Generator from Mikano cannot make Mikano the supplier. In the same way, when a seller delivers the goods purchased to a specified destination, that delivery does not make the seller of the goods the supplier. In this transaction, Mikano International Generators played the same role that Generator Warehouse Limited would have played, both being dealers and the Respondent being a middleman. Therefore, Mikano only replaced Generator Warehouse Ltd and did not, and could not have replaced the Respondent who was contracted to source for, procure and purchase the Generator.

The Respondent was only persuaded to buy from Mikano instead of buying from Generator Warehouse Ltd. To say that Mikano replaced the Respondent will be the same as saying that Generator Warehouse would have taken the place of the Respondent if the Generator had been bought from the Generator Warehouse.

Learned counsel categorically submitted that, the person who trickishly tried to take the place of the Respondent, is the 2nd Appellant, whose sole witness, DW1 testified in para 5(viii) of the statement on oath of the Defendant’s witness that: “…In fact the 2nd Defendant procured the Generating set from Mikano International generators for the sum of N9,500,000.” Learned counsel now asked the question: Who contracted the 2nd Defendant (the 2nd Appellant) to procure the Generator? He answered that Obviously, the contract was not awarded to Mikano after all?

Instead the 2 nd Appellant became the middle man, which is the position of the Respondent. It is the 2nd Appellant’s MD DW1, that tried to edge out and double cross the Respondent even unknown to the Captain of the 1st Appellant’s vessel because the 2nd Appellant was communicating with the Manager overseas.

The learned trial Judge captured this fact when she found that: “It is also clear to the Court that the 2nd Defendant had began plans to interfere with the contract between the Claimant and the 1st Defendant at least as far back as the 6th of March, 2006 and clearly, that Exhibits DW(C) and DW(E) both dated 30th of March, 2006 are afterthoughts to deny the Claimant his due profit.” ​The Appellants’ allegation that the 1st Appellant’s vessel incurred demurrage due to the Respondent’s delayed performance, was also demolished by the Respondent’s documentary evidence by which the Appellant established that, after the Generator was delivered on 11/3/2006, the 1st Appellant was still around up to and beyond 15/3/2006.

See Exhibit CW10 on page 50 of the Record. And there were also other transactions going on as at 11/3/2006. See exhibits CW1M and CW1N at pages 48-49 of the Records. Thus the 1st Appellant’s vessel was not under pressure to depart due to any demurrage. CW1, testified that the vessel sailed on or about the 20th day of March 2006 and this was not challenged by the Appellants.

Learned counsel submitted that, the trial Judge was right to disbelieve the Appellants’ testimony that, when after several weeks the claimant could not supply, and the vessel was accumulating demurrage, they had to award the contract to Mikano international generators. And on the other hand, the trial Judge was right in believing the Respondent’s testimony as to why he did not go back to the bank to finance the transaction and why he purchased the Generator from Mikano as already stated above.

It is submitted by learned counsel that civil actions are decided on balance of probability of evidence, and that the evidence of the Respondent is more probable than that of the Appellants. See the case of Mogaji vs Odofin (1978) 3-4 SC pg. 65. Learned counsel contended that, the evidence that it was because the Respondent delayed several weeks after and in desperation the 2nd Appellant then contracted and commissioned Mikano to perform same has already been demolished by the documentary evidence of both parties as well as the oral evidence of the Respondent’s sole witness.

The bank was willing to finance the transaction and visited the 1st Appellant to verify documents. The Appellants’ DW1 confirmed this under cross-examination, and also confirmed that he went to Mikano with the claimant and Captain of the 1st Appellant’s vessel. Therefore the Appellants’ evidence is not credible, not probable, and therefore lacks any weight at all.

And on the other hand, the Respondent’s evidence as to why the bank did not finance the transaction, and how Mikano came into the picture being that the MD of the 2nd Respondent persuaded him to buy from Mikano, and save and avoid bank protocols and interest is more credible, more probable or likely, and has more weight and is more preferable to that of the Appellant and the trial Court was right to accept same. ​Furthermore, learned counsel submitted that if the Respondent’s evidence as to why the generator was purchased from Mikano is accepted as more probable than that of the Appellant, then it does not matter to the Respondent, if the second Appellant paid the entire 10 Million to Mikano because the second Appellant double-crossed the Respondent, which is why Mikano is not asking the Respondent for payment.

Whereas the 2nd Appellant was supposed to pay the N10 Million to the Respondent for onward disbursement by the Respondent to Mikano, the agreed purchase sum of N7 million. Learned counsel reiterated the fact that the trial Judge was right in her finding that “clearly Mikano is not asking for same.” It was submitted by learned counsel that the 2nd Appellant procured the quotation from Mikano as an afterthought and that the quotation from Mikano was master minded by the 2nd Appellant, to enable him carry out his plan of hijacking the Respondent’s profit.

CAN, THE 2ND APPELLANT, A NON-PARTY TO THE CONTRACT, REPUDIATE THE CONTRACT BETWEEN THE 1ST APPELLANT AND THE RESPONDENT? The learned counsel on the above question answered that from the evidence, the 2nd Appellant is not a party to the contract of supply of the generating set which was concluded before the 2nd Appellant was approached.

It is trite law that as a general rule, a contract affects only the parties to it and cannot be enforced by or against a person who is not a party to it even if the contract is made for his benefit and purports to give him right to sue or to make him liable upon it. See the case of A.G FEDERATION VS A.I.C LTD (2000) 10 NWLR (pt. 675) 293 at 311. Also see NANGIBO VS OKAFOR (2003) 52 WRN 1. There being no privity of contract therefore, the 2nd Appellant has no right to determine whether there was delay or not and also has no right to terminate a contract which it did not award.

Meanwhile, the Master of the 1st Appellant’s vessel who approved the contract was there, and still transacted with the Respondent on the supply from beginning to delivery as made crystal clear from the documentary evidence which were not refuted by the Appellants. See Exhibits CW1F and CW1G at pages 29 and 40 of the Record. ​In conclusion, learned counsel submitted therefore that, exhibit DW1B was an afterthought, either formulated for the purpose of this action or formulated by the 2nd Appellant to cheat and double-cross the Respondent and to justify its failure to pay the Respondent.

RESOLUTION Issue 1 a) Whether the trial Court was right in arriving at the conclusion that the Respondent did perform the said contract and was entitled to the reliefs sought thereof. Dealing with issue No. 1, a contract is an agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguished contractual obligations from other legal obligations is that they are based on the agreement of the contracting parties. ​For a valid contract to emerge, there are five elements that must be present and recognizable.

These are offer, acceptance, consideration, intention to create legal relationship, capacity to create legal relationship and capacity to contract. Thus, before any contract or agreement can be said to come into existence in law, there must be an unmistaken and precise offer, followed by an unconditional acceptance of the terms mutually agreed upon by the parties thereto. That is to say, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them.

See BILANTE INTERNATIONAL LTD VS NIGERIA DEPOSIT INSURANCE CORPORATION (2011) 6-7 SC (PT IV) 113, OMEGA BANK PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547, AMANA SUITS HOTEL LTD V. PDP (2007) 6 NWLR (PT. 1031) 453. Therefore, where an offer is made but is not accepted, there can be no agreement or contract arising therefrom. An offer is an expression of readiness to contract on the terms specified by the offeror (i.e. the person making the offer) which when it is accepted by the offeree (i.e. the person to whom the offer is made) will give rise to a valid and binding contract.

In other words, it is by acceptance that the offer is converted to a contract. See SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD (2001) 10 SCM 163. A mere willingness to enter into a negotiation with a view to entering into a contract cannot be an offer but at best an invitation to treat. See OMEGA BANK PLC V. OBC LTD (SUPRA).

In the case under consideration, l have carefully perused the record of appeal, wherein l found that the Respondent has not established the above elements of a valid contract. ​There is no record of the Respondent tendering any document showing any offer made to him by the 1st Appellant, and his acceptance in respect thereto. The Respondent was challenged on this fact in cross-examination by Appellants’ Counsel, he admitted that there was no such offer document issued to him from the 1st Appellant to supply the generating set.

Although, the Court can infer and construe the existence of a contract from the conduct of the parties before it, however in this instant case there was no clear-cut agreement between the parties as to the creation of a contract and its exact terms.

See the case of David Ejiniyi v Amusa Adio (1993) 7 NWLR Part 305 p 320 per Salami, JCA “The totality of the evidence by the parties … “did not disclose a negotiation between the parties in respect of the said transaction. …in the absence of an offer, there can be no acceptance, which is the expression of consent to the terms of the offer.” In this instant case undoubtedly, there was no offer made to the Respondent by the 1st Appellant to supply the said generating set.

Premised on my elucidation of a valid contract above, the Appellants’ counsel rightly pointed out that the learned trial Judge erred in law when she held inter alia as follows: “The Court is satisfied with the evidence before it that the claimant did perform its obligations under the contract with the 1st Defendant.

It is also evident from the facts before it that the claimant was clearly involved in transactions leading to the installation of the said generator.” Learned counsel for the Appellants to further drive home his contention, pointed out that, Respondent’s involvement or participation leading to the installation of the said generating set, which he could not pay or finance for its procurement on behalf of the 1st Appellant, cannot be seen as performance of the said purported contract, to have informed the learned trial Judge in arriving at that decision.

It is evident from the record of appeal, and well-articulated by Appellants’ counsel that the Respondent on board the vessel of the 1st Appellant was initially to carry out other sundry works and minor engineering repairs on the vessel for which he was hired to do, and not solely for the installation of the said generating set. ​I am in agreement with Appellants’ counsel that undoubtedly, the learned trial Judge erred in law, when she concluded that she was satisfied that the Respondent’s involvement in the installation of the said generating set is tantamount to performance of his obligations under the said contract to supply the said generating set, l so hold.

Issue 1 is resolved in favour of the Appellants. Issue 2 “Whether learned trial Judge was right in refusing to accept that Mikano Nigeria Ltd supplied the said generating set.” From the pleadings and testimonies of both parties before the trial Court, it was quite evident that Messrs Mikano Nigeria was alleged to have supplied the said generating set to the 1st Appellant.

The findings of the learned trial Judge on page 121 of the record of appeal wherein she stated that: “There is nothing before the Court to establish that, the sum was paid to Mikano International Limited, and clearly Mikano is not asking for payment of same,” was correctly impugned as perverse by Appellants’ counsel. The said finding is perverse, and is one that must not stand.

It must be reversed. ​Furthermore, it was rightly pointed out by Appellants’ counsel in his brief, that if the Respondent had actually supplied the said generating set, it is only reasonably expected that after supplying the said generating set, the Respondent would have interfaced or liaised with Mikano Nigeria Ltd to monitor or ensured, or secured payment of its money or any commission therefrom. Under the law of evidence, “he who asserts must prove”.

I carefully read the pleadings and testimonies of the Respondent, the Appellants’ counsel in my view rightly contended that, the burden or onus of proof thereof was on the Respondent to show that he paid for, and/or procured the said generating set in the course of the said purported contract. There is evidence in the record of appeal that, Appellants paid for, or procured the said generating set, in the course of the said purported contract. This burden as far as the Appellants are concerned, has not been discharged by the Respondent. See Union Bank of Nigeria v Professor A.

O Ozigi (1994) 1NWLR (Part 219) page 619. ​The burden of proving a particular fact is on the party who asserts it. See Okubule v. Oyagbola, (1990) 4 N.W.L.R. (Pt.147) 723 and Ike v. Ugboaja (1993) 6 N.W.L.R. (Pt.301) 539. That is the position in civil cases but the onus does not remain static. It shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced. See Nigerian Maritime Services Ltd., v. Afolabi (1978) 2 S.C. 79 at p. 84 and Highgrade Maritime Services Limited. v.

First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290. It was correctly noted by Appellants’ counsel that, Mikano Nig Ltd, who eventually supplied the said generating set was not made a party in the action at the lower Court.

In concluding this Issue 2, l reiterate that, argument of Appellants’ counsel that in view of the various judicial authorities, that the learned trial Judge erred in law to have come to the conclusion that “There is nothing before the Court to establish that, the sum was paid to Mikano International Ltd, and clearly Mikano is not asking for payment of same, is one that must not be disturbed.

Consequently issue 2, is resolved in favour of the Appellants. ​Issue 3 “Whether the Court was right in granting judgment to the Respondent for an estimated profit due from the purported contract, which the Respondent was unable to perform.” The holding of the learned trial Judge on page 121, of the record of appeal which states “From the facts before the Honourable Court, it does appear in the circumstance of this instant case, that what the Claimant would be entitled to, should be a fair value of the profit he would have made from the contract,” is contrary to the position of the law.

The law is very clear, that Courts will not award anticipatory profit or damages in the absence of proof. See the case of Artra Industrial Nigeria Limited v NBCI (1998) 4 NWLR Part 546 page 362 ratio 4. Appellants’ counsel articulated the correct position of the law further, that the Respondent is not entitled to anticipatory profit on a contract he did not perform, therefore the learned trial Judge erred in his holding above. From all l have elucidated above, this Issue is resolved in favour of the Appellants.

This appeal is meritorious, consequently, l allow the appeal, and hereby set aside the judgment delivered on the 14th day of November, 2016 in Suit No. LD/132/2012 by Honourable Justice O.A Ogala.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft, a copy of the leading judgment of my Lord FATIMA OMORO AKINBAMI, JCA, just delivered. I have also read the record of appeal as well as the briefs filed on behalf of the parties, I agree with the reasons given and the conclusion by my Lord that there is merit in this appeal. In view of the foregoing, I also allow the appeal. I abide by the consequential order made in the said leading judgment.

ABUBAKAR SADIQ UMAR, J.C.A.: I read in draft, the judgment of my learned brother FATIMA OMORO AKINBAMI, JCA, just delivered, which I agree that there is merit in this appeal and it deserves to be allowed. His lordship has addressed in the lead judgment all the salient issues submitted for the determination of the appeal and I have no new things to add. ​I rather adopt both his reasoning and conclusion as mine. Appeal is hereby allowed. I abide by the consequential order therein.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment) : This is an appeal against that part of the judgment of the High Court of the Federal Capital Territory, Abuja, Coram: H. B. Yusuf J, in Suit No. FCT/HC/CV/776/2012: Ann J. Solomon V. Dr. (Mrs.) Grace Martins & Ors delivered on 18/9/2019, granting the claims of the 1st Respondent as Claimant against the Appellant as 1st Defendant were granted against the Appellant. The Notice of Appeal was filed on 14/10/2019 on eight grounds of appeal. See pages 452-458 of the Record of Appeal.

The Record of Appeal was compiled and transmitted to this Court on 6/12/2019. The Additional Record of Appeal was compiled and transmitted to this Court on 11/6/2020. The 1st Respondent’s Notice of Preliminary objection was filed on 28/10/2020. The Parties filed and exchange their briefs, which were adopted as their arguments at the hearing of … By a Writ of Summons filed on 9/11/2012 before the lower Court, the 1st Respondent as Claimant claimed against Appellant and 2nd-4th Respondents as Defendants for the following reliefs, to wit: ​1.

A Declaration that the Plaintiff is the beneficial owner of the 4 – bedroom terrace house known as Flat 4 Block B14 located at Zone 1, Chess Street, Games Village, Kaura-District, Abuja, having purchased same for value from the 2nd-4th Defendants. 2. A Declaration that the occupation by the 1st Defendant of the said 4 – bedroom terrace house known as Flat 4 Block B14 located at Zone 1, Chess Street, Games Village, Kaura-District, Abuja without the consent and authority of the Plaintiff is tantamount to trespass. 3.

An Order ejecting or directing the 1st Defendant to vacate the said 4 – Bedroom terrace house, known as Flat 4, B14 located at Zone 1, Chess Street, Games Village, Abuja. 4. The sum of N10,500,000.00 only being cost of rent denied the Plaintiff by the 1st Defendant since 2009 till date. 5. The sum of N3,500,000.00 only being the value of rent from 2012 till the determination of this suit. 6. The sum of N500,000,000.00 as General Damages against the defendants. See pages 1-44 of the Record of Appeal.

BRIEF STATEMENT OF FACTS The case of the 1st Respondent as Claimant before the lower Court, as can be seen from the pleadings and evidence, both oral and documentary, led as in the Record of Appeal, inter alia was that the 1st Respondent purchased the property known as Flat 4, Block B14 comprising of 4 Bedroom Terrace House located at Zone 1, Chess Street Games Village, Abuja at the sum of N45,000,000.00 from the 2nd-4th Respondents.

However, despite the assurances by the 2nd-4th Respondents that the property was unencumbered and that those staying in the property are family members of the 4th Respondent who would vacate the property, the Appellant, who has neither any equitable nor legal interest in the property, has failed, neglected and/or refused to vacate the property for the 1st Respondent. Aggrieved by the persistent refusal of the Appellant to yield possession of the said property, the 1st Respondent initiated an action against the Appellant and the 2nd-4th Respondents as Defendants before the lower Court.

See pages 328-333 and 334-337 of the Record of Appeal. See also pages 1-44 of the Record of Appeal for the 1st Respondent’s Writ of Summons and Statement of Claim.

The case of the Appellant as the 1st Defendant before the lower Court, as can be seen from the pleadings and evidence, both oral and documentary, led as in the Record of Appeal, inter alia was that the Appellant was let into possession of the property in dispute by the 2nd and 4th Respondent as tenant and was sometime in November 2008 offered by the 2nd and 4th Respondent to purchase the said property at a price of N45,000,000.00, which offer she accepted but upon inquiry it was discovered that the said property does not belong to the 2nd-4th Respondents but belongs to the Oyo State Government.

The Appellant being in possession was by virtue of the Federal Government’s policy of 1st occupier the person entitled to purchase the property from the Government. Thus, the 2nd–4th Respondent had no legal right to transfer to the 1st Respondent, who in turn has no right to dispossess the Appellant of her possession of the property in dispute. See pages 338-353; 354-357; 401-405 of the Record of Appeal. See also pages 108-118 of the Record of Appeal for the Appellant’s Amended Statement of Defence.

At the close of pleadings, the matter proceeded to trial before the lower Court. The 1st Respondent testified as PW1 and tendered several documents which were admitted in evidence as Exhibits. She was thoroughly cross-examined. PW2 was one Sunday Zaki and he was also thoroughly cross-examined. The Appellant testified as DW1 and tendered some documents which were admitted in evidence as Exhibits. She was thoroughly cross-examined. The husband of the Appellant, Nnabuchi Martins testified as DW2. He was also thoroughly cross-examined.

However, one DSP Olufemi Ayodele Rtd, was subpoenaed to tender a document but upon objection, the document was rejected by the lower Court. At the close of the case, the parties filed and exchanged their final written addresses, which were adopted by them on 8/2/2018. However, judgment was not delivered until 18/9/2019 when the parties readopted their final written addresses and the lower Court proceeded to deliver its judgment on same date granting some of the claims of the 1st Respondent as Claimant against the Appellant and the 2nd-4th Respondents as Defendants, hence this appeal.

See pages 424-451 and 452-458 Record of Appeal for the judgment of the lower Court and the Notice of Appeal. ISSUES FOR DETERMINATION In the Appellant’s brief, three issues were distilled as arising for determination from the eight grounds of appeal, namely: 1.

Whether considering the provisions of Sections 102, 104 and 105 of the Evidence Act and Section 15 of the Land Registration Act, CAP 515 Laws of FCT, Nigeria the lower Court was right in relying on the photocopy of the Federal Ministry of Housing and Urban Development letter of Allocation of the property in dispute certified by the registrar of the High Court of Justice Abuja, FCT and the unregistered Power of Attorney and Deed of Assignment, admitted as Exhibits AS1, AS3 and AS4 respectively, to grant the Plaintiff’s reliefs of declarations, ejection and mesne profit over the property in dispute against the Appellant? (Distilled from Grounds 1, 2, 3, 4, 5 and 8) 2.

Whether considering the circumstances of this case, the 1st Respondent is entitled to recover mesne profit from the Appellant? (Distilled from Ground 6) 3.

Whether considering the N650,000.00 annual rent being paid by the Appellant to the 2nd-4th Respondents for the disputed property contained in Exhibit DG1, the lower Court was right when he awarded to the 1st Respondent the sum of N3,500,000.00 per annum in mesne profit against the Appellant effective from 1/3/2010 until vacant possession is delivered to the 1st Respondent when the sum of N3,500,000.00 is not supported by any evidence before the lower Court? (Distilled from Ground 7) In the 1st Respondent’s brief, the three issues distilled in the Appellant’s brief as arising for determination were adopted. ​I have taken time to consider the averments in the pleadings of the parties together with the evidence, both oral and documentary as led by them as in the Record of Appeal.

I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below. The parties are ad idem on the three issues as distilled in the Appellant’s brief as the apt issues arising for determination in this appeal. I therefore, adopt them as the issues for determination in this appeal. However, I shall consider the three issues together and resolve them in one fell swoop.

But then there is Notice of Preliminary Objection challenging the competence of the appeal, which I shall proceed to consider first. NOTICE OF PRELIMINARY OBJECTION On 28/10/2021, the 1st Respondent filed a Notice of Preliminary Objection challenging the competence of this appeal and praying the Court to strike out the appeal on the following grounds, to wit: 1. Absence of service of the purported Notice of Appeal on the 1st Respondent or her counsel as mandatorily prescribed. 2. The purported Appellant’s Brief of Argument was filed outside the time limited by the rule of Court. 3.

The purported Brief of Argument was filed outside the period after the service of the Record of Appeal without leave of Court first sought and obtained. 4. The purported appeal as presently constituted is fatally incompetent having not fulfilled the condition precedent. 5. The Appellant’s Grounds 2, 5, 6 and 7 as contained in the Notice of Appeal embodied in the Record of Appeal forwarded to this Court are incompetent. 6.

Consequently, all the issued formulated from the said grounds are liable to be struck out. 1ST RESPONDENT’S COUNSEL SUBMISSIONS In his submissions, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that the Notice of Appeal was not personally served on the 1st Respondent as required by law and contended that in law, failure to serve an originating process, such as a Notice of Appeal, is fatal to the appeal and urged the Court to so hold and to strike out the Notice of Appeal for being incompetent.

Counsel referred to Order 2 Rule 2 of the Court of Appeal Rules 2016 and relied on NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176 -177.

It was further submitted that the Appellant’s Brief of Argument was incompetent in that it was file outside the 45 days prescribed by the Rules of this Court and contended that the Record of Appeal was served on the Appellant on 22/11/2019 and transmitted to this Court on 6/12/2019 but the Appellant’s brief was filed only on 1/7/2020 without leave of Court outside the prescribed 45 days and urged the Court to hold that the Appellant’s brief was incompetent and to strike out the Appellant’s brief and consequently, the appeal itself for lack of diligent prosecution.

Counsel referred to Order 19 Rules 2 of the Court of Appeal Rules 2016 and relied on A.G. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V. Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326.

It was also submitted that grounds 2, 5, 6 and 7 of the Grounds of Appeal are incompetent having been filed without the leave of Court and contended that in law grounds of appeal challenging the exercise of discretion requires leave of Court to be valid and urged the Court to hold that the Appellant’s grounds 2, 5, 6 and 7 challenging and/or questioning exercise of the discretion of the lower Court are incompetent having been filed without the leave of the Court and to uphold the preliminary objection and strike out these grounds as well as all the issues distilled as arising from them for being incompetent.

Counsel relied on Idris V. Agumagu (2015) 13 NWLR (Pt. 1477) 441 AT pp. 472-473; ENL Consortium Ltd V. DBN Ltd (2020) 8 NWLR (Pt. 1725) 179 AT p. 195; Sani V. State (2019) 13 NWLR (Pt. 1690) 551 AT p. 573; Nwadike V. Ibekwe (1987) 4 NWLR (Pt. 67) 7; Korede V. Adedokun (2001) 15 NWLR (Pt. 736) 483.

It was further submitted that the Appellant’s Brief of Argument was incompetent in that it was filed outside the 45 days prescribed by the Rules of this Court and contended that the Record of Appeal was served on the Appellant on 22/11/2019 and transmitted to this Court on 6/12/2019 but the Appellant’s brief was filed only on 1/7/2020 without leave of Court outside the prescribed 45 days and urged the Court to hold that the Appellant’s brief was incompetent and to strike out the Appellant’s brief and consequently, the appeal itself for lack of diligent prosecution.

Counsel referred to Order 19 Rules 2 of the Court of Appeal Rules 2016 and relied on A.G. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V. NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V.

Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326. ​APPELLANT’S COUNSEL REPLY SUBMISSIONS In his reply submissions, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that the 1st Respondent was duly served with the Notice of Appeal as required by law in that it was served the counsel for the 1st Respondent, Chief Ogwu Onoja SAN and contended that the issue of non-service of the Notice of Appeal was never raised during the exchange of affidavit in the Appellant’s Motion for stay of execution and urged the Court to hold that the 1st Respondent having admitted service of the Notice of Appeal in paragraph 7(n) of her Counter-Affidavit filed on 25/2/2020 cannot be allowed to approbate and reprobate on the issue of service of the Notice of Appeal and to dismiss the Preliminary Objection for lacking in merit.

Counsel referred to Order 2 Rule 2 of the Court of Appeal Rules 2016; pages 457-458 of the Record of Appeal, and relied on Ude V.

Nwara (1993) 2 NWLR (Pt. 278) 638 AT p. 662. ​It was also submitted that grounds 2, 5, 6 and 7 of the Grounds of Appeal require no leave of Court to be valid since the appeal is against the final judgment of the lower Court and contended that in law no leave of Court is required when an appeal is against the final judgment of the lower Court, notwithstanding the grounds of appeal and urged the Court to hold that once an appeal against the final decision of the lower Court, sitting as Court of First instance, was filed within the time prescribed by law it is incompetent, notwithstanding the grounds of appeal and to dismiss the Preliminary Objection for lacking in merit.

Counsel referred to pages 424-451 and 452-458 of the Record of Appeal; Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Kakih V. PDP (2015) All FWLR (Pt. 764) 20 AT pp. 44-45; Adigwe V.

FRN (2015) All FWLR (Pt. 805) 76 AT p. 88. ​It was further submitted that the Appellant’s brief was filed within the prescribed period as prescribed by the Rules of this Court in that in law the 45 days period began to run upon the receipt of the Additional Record of Appeal on 19/6/2020 and contended that the Appellant’s brief filed on 1/7/2020 was therefore, filed within the 45 days period as prescribed by the Rules of this Court and urged the Court to so hold and to overrule the misconceived objection by the 1st Respondent and to dismiss same for lacking in merit.

Counsel referred to Order 19 Rule 2 of the Court of Appeal Rules 2016 and relied on. RESOLUTION OF THE PRELIMINARY OBJECTION My lords, the primacy, or should I say, the primary place, of service of process, more particularly, originating process in the adjudicatory process cannot be overemphasized. It is a cardinal requirement of our procedural law that has dovetailed over the years into threshold issue of jurisdiction and competence. Thus, without service, proper service at that, where service of process is required, any proceeding founded thereon is a nullity.

In appellate litigation, the Notice of Appeal is indisputably the originating process. Its service personally on all the parties directly affected by the appeal is sine quo non unless there is an Order of Court for substituted service of the Notice of Appeal. It follows therefore, failure to serve a Notice of Appeal on a party directly affected by the appeal is fatal and would render any proceedings founded thereon a nullity. See Order 2 Rule 2 of the Court of Appeal Rules 2021.

See also NUT Taraba State V. Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394; Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177. I have taken time to go through the entire Record of Appeal to see if there is any proof of service of the Notice of Appeal on the 1st Respondent., who undoubtedly is the principal party affected by the appeal, being the Claimant before the lower Court and in whose favor the judgment appealed against was entered by the lower Court against the Appellant and the 2nd-4th Respondents as Defendants.

I can see no proof of service of the Notice of Appeal personally on the 1st Respondent. The only proof of service I can see is that of the service of a letter dated 20/11/2019 inviting the parties to settlement of documents for the Record of Appeal served on the counsel for the 1st Respondent. See pages 459-460 of the Record of Appeal. There was neither an endorsement of the 1st Respondent on the Notice of Appeal of receipt of same nor any affidavit of service of the Notice of Appeal personally on the 1st Respondent.

There is therefore, in my finding, and I so hold, no personal service of the Appellant’s Notice of Appeal, which can be found at pages 452-458 of the Record of Appeal, on the 1st Respondent. However, our attention was drawn to the deposition in paragraph 7(n) in the 1st Respondent’s counter-affidavit deposed to on 25/2/2020 in opposition to the Appellant’s Motion for stay of execution.

I have taken time to read the deposition, which was to the effect that the Appellant’s Notice of Appeal does not disclose any reasonable grounds to support an application for stay of execution of the judgment of the lower Court. Honestly, I cannot see how a counter-affidavit to an application for stay of execution, to which as required by law a copy of the Notice of Appeal must be annexed, would amount to admission that the Notice of Appeal has been personally served on the 1st Respondent.

In law, proof of service of a Notice of Appeal can be proved either by presenting the endorsed hard copy or by an affidavit of service. ​In law, service of an originating process, such as Notice of Appeal, must be on the affected party to the appeal and not on his Counsel unless either the Court gives leave to that effect or there is an undertaking in writing by counsel to receive service of an originating process on behalf of his client. In the instant, appeal, there is no such undertaking in writing by counsel for the 1st Respondent at the lower Court.

Thus, the mere fact that a counsel represented a party before the lower Court does not ipso facto makes such a counsel either counsel for the party in an appeal or with the requisite authority to receive the service of a Notice of Appeal on behalf of his client. In the circumstances therefore, the failure to personally serve the 1st Respondent with the Notice of Appeal as required by law was fatal and rendered the appeal incompetent and thus liable to be struck out as urged upon us by the 1st Respondent vide the Notice of preliminary objection, and I so hold. See NUT Taraba State V.

Habu (2018) 15 NWLR (Pt. 1642) 381 AT pp. 393-394. See also Ihedioha V. Okorocha (2016) 1 NWLR (Pt. 1492) 147 AT pp. 176-177. My lords, on the other ground of Preliminary Objection, I have taken a calm look at Grounds 2, 5, 6 and 7 of the Grounds of Appeal in the light of the objection that these grounds are invalid by reason of there being no leave of Court first sought and obtained by the Appellant before they were filed. The parties are ad idem that the judgment of the lower Court, being appealed against is a final judgment of the lower Court sitting as a Court of first instance.

The law is well settled that in an appeal against the final decision of the lower Court sitting not in its appellate jurisdiction but as a Court of first instance no leave is required, notwithstanding the nature of the grounds of appeal, be they of purely of law or of mixed law and facts or of facts alone or even against exercise of discretion by the lower Court. In such circumstances, the appeal is as of right, no more no less, and therefore, no leave of Court is required!

See pages 424-451 of the Record of Appeal for the final judgment of the lower Court and pages 452-458 of the Record of Appeal for the Notice and Grounds of Appeal. See also Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See further Kakih V. PDP (2015) All FWLR (Pt. 764) 20 AT pp. 44-45, where the Supreme Court had stated inter alia thus: “The provisions of Section 241(1) and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are clear.

Where a party to litigation is aggrieved with a decision given by that Court, he has a right of appeal conferred on him by the Constitution. In other subject matter which is not covered by Section 241(1) of the Constitution, the aggrieved party may have to seek for leave either from the Federal High Court or the Court of Appeal”. See also Adigwe V.

FRN (2015) All FWLR (Pt. 805) 76 AT p. 88, where the Supreme Court had reiterated inter alia thus: “My noble Lords, it is elementary to state that every citizen of this Country may approach a higher Court on appeal against a decision(s) of a lower Court depending on the nature of the decision, or even as an interested party for favorable relief(s).

That is why the Constitution has categorized these decisions on which a citizen can exercise such constitutional right of appeal as of right under Section 241(1), 244(1), 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”. ​In the circumstances therefore, the Appellant does not require the leave of Court to appeal against the final judgment of the lower Court on all or any of the Grounds of Appeal, including Grounds 2, 5, 6 and 7, as erroneously contended by the learned counsel for the 1st Respondent.

These grounds of appeal, in my finding, are therefore, valid to be heard, considered and determined on the merit. This ground of the Preliminary Objection falls and it is, without much ado, hereby overruled for lacking in merit. On the Preliminary Objection against the Appellant’s brief, the Appellant’s brief was, as endorsed thereon and as agreed to by the learned counsel for the Appellant, filed on 1/7/2020. The Record of Appeal was served on the Appellant on 22/11/2019 but was transmitted to this Court on 6/12/2019.

However, the Additional Record of Appeal was transmitted to this Court on 19/6/2020. The parties are ad idem on these facts. ​My lords, the only issue therefore, between the parties on this ground of objection is whether the 45 days prescribed by the Rules of this Court, vide Order 19 Rule 2 of the Court of Appeal Rules 2021, is to be reckoned with from the date of service of the Record of Appeal on the Appellant or the date of the transmission of the Record of Appeal to this Court or from the date of the transmission of the Additional Record of Appeal to this Court?

Now, by Order 19 Rules 2 of the Court of Appeal Rules 2021, it is provided thus: “The Appellant shall within forty-five days of the service on him of the Record of Appeal from the lower Court file in the Court a written brief, being a succinct statement of his argument in the appeal” The provision of Order 19 Rules 2 of the Rules of this Court 2021 is too plain, unambiguous and so elegantly crafted to cause any confusion. It simply means what it says! It does not need any recourse to any difficult principles of interpretation to construe and be given effect to by this Court.

The 45 days period prescribed therein for the filling of the Appellant’s brief is to be reckoned with from the date of service of the Record of Appeal on the Appellant.

There is nowhere any reference was made therein to the service of and/or transmission of Additional Record of Appeal to be reckoned with in calculating the 45 days period as prescribed by Order 19 Rule 2 of the Court of Appeal Rules 2021 for the filing of Appellant’s brief. ​It follows therefore, and I so hold, that the Appellant’s brief filed on 1/7/2020 was hopelessly and irredeemably invalid having been filed grossly out of time and is therefore, null and void as unassailably contended by the learned counsel for the 1st Respondent, it having been filed outside the 45 days from the date of service on the Appellant of the Record of Appeal on 22/11/2019 as prescribed by Order 19 Rule 2 of the Court of Appeal Rules 2021.

Honestly, this is something a prudent counsel could have easily remedied by simply invoking the powers of this Court vide Order 6 Rule 9 (1) of the Court of Appeal Rules 2021 to exercise its discretion in favor of the Appellant to extend the time within which the Appellant was to file the Appellant’s brief and to deem the same already filed on 1/7/2020 as properly filed and served on the 1st Respondent but rather than do that the learned Counsel for the Appellant had gone ahead to join issue with the 1st Respondent on this very plain and straightforward matter and the result?

A devastating blow to the case of the Appellant! ​In the circumstances therefore, I hold that the Appellant’s brief filed on 1/7/2020 is incompetent and thus liable to be struck out. Consequently, it is hereby struck out for being incompetent.

The Rules of Court are not made for the fun of it or to be toyed with by the parties or even the Court, and although they are mere handmaid for the due and smooth administration of justice and therefore would never be allowed to clog the wheel of justice, yet they must be obeyed, and where there are provisions for exercise of discretion by the Court for defaulters, such provisions must be resorted to by the parties. See Order 19 Rules 2 of the Court of Appeal Rules 2021. See also AG. Federation V. The Punch (Nig) Ltd. (2019) 15 NWLR (Pt. 1694) 40 AT p. 58; Kraus Thompson Organization V.

NIPSS (2004) 17 NWLR (Pt. 901)1; Ogbu V. Urum (1981) 4 SC 1; Olowu V. Abolore (1993) 5 NWLR (Pt. 293); SPDC (Nig) Ltd V. Agbara (2019) 6 NWLR (Pt. 1668) 310 AT p. 326. My lords, having struck out the Appellant’s brief for being incompetent, the appeal is thus, left bereft without an Appellant brief as required by Order 19 Rule 2 of the Court of Appeal Rules 2021 and therefore, this appeal is liable to be dismissed for lack of diligent prosecution pursuant to Order 19 Rules 10 (1) and or (2) of the Court of Appeal Rules 2021. ​

In the light of all I have stated and found as above, in the main, the preliminary objection succeeds and it is hereby upheld. Consequently, this appeal is hereby dismissed. Be the above as it may, i am aware that the Court is only but the penultimate Court in the hierarchy of Courts in the land, and we have been enjoined, or rather admonished, by the Apex Court to ensure that we consider all issues presented before us by the parties. I shall therefore, in deference to the admonition of the Apex Court proceed to consider the merit of this appeal.

ISSUES ONE, TWO AND THREE (TAKEN TOGETHER) APPELLANT’S COUNSEL SUBMISSIONS In his submissions on issues, one, two and three, which I have taken time to review, learned counsel for the Appellant had submitted inter alia that Exhibit AS1, the letter of allocation of the property in dispute dated 13/1/2005 being a mere photocopy of a public document, was inadmissible in evidence in that in law it being a public document is admissible either as the original or by certify true copy only and contended that the certification of Exhibit AS1 by the Registry of the High Court of the FCT Abuja and not by the Federal Ministry of Housing and Urban Development which has its custody was wrong and urged the Court to expunge and discountenance Exhibit AS1 and to hold that the 1st Respondent failed to prove any title to the property in dispute since without Exhibit AS1, the other Exhibits AS3 and AS4, unregistered documents affecting land, cannot stand on their own, and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st Respondent against the Appellant.

Counsel referred to Sections 102, 104, 105 and 258 of the Evidence Act 2011; Section 15 of the Land Registration Act, CAP 515 Laws of FCT Abuja, Nigeria and relied on Goodwill & Trust Inv. Ltd V. Witt & Bush Ltd (2011) All FWLR (Pt. 576) 517; Fasina V. Ogunkayode (2005) All FWLR (Pt. 283) 116 AT pp. 130-131; National Investment and Properties Co. Ltd V. The Thompson Organization Ltd. (1969) 1 All NLR 138 AT pp. 142-143; Olukade V. Alade (1976) All NLR (Pt. 1) 56; Shanu V. Afribank (Nig.) Plc (2002) 17 NWLR (Pt. 795) 185 AT p. 221; Macfoy V.

United Africa Company Ltd (1962) AC 152. ​It was also submitted that the lower Court having held that Exhibits AS3 and AS4 were not tendered in proof of title to the property in dispute was estopped from turning round in the same judgment to hold, as it did, that by the delivery of the original letter of allocation to the 1st Respondent by the 2nd Respondent an equitable interest was conferred on the 1st Respondent and contended that finding amounted to a summersault on the part of the lower Court and urged the Court to set aside such perverse findings of the lower Court and hold that the 1st Respondent failed to prove her title to the property in dispute and allow the appeal and dismiss the claims of the 1st Respondent against the Appellant for lacking in merit.

Counsel relied on Kakih V. PDP (2014) 15 NWLR (Pt. 1430) 374 AT p. 407; Moses Jua V. State (2010) All FWLR (Pt. 521) 1427; Gabriel V. State (1989) 5 NWLR (Pt. 122) 457; Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1; State V.

Aibangbee (1988) 2 NWLR (Pt. 84) 548 AT p. 587. ​It was further submitted that in law it is only where an unregistered but registrable instrument is coupled with possession that it could give rise to equitable interest in land and contended that the 1st Respondent being never in possession cannot in law rely on unregistered instruments to be entitled to either legal or equitable interest in the property in dispute and urged the Court to hold that the lower Court was in error to award title to the 1st Respondent and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st Respondent against the Appellant for lacking in merit.

Counsel relied on Agboola V. UBA Plc (2011) 11 NWLR (Pt. 1258) 375 AT p. 415F; Dauda V. Bamidele (2000) 9 NWLR (Pt. 671) 199 AT p. 211; Goldmark (Nig) Ltd V. Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) 291 AT pp. 349-350; Orianzi V. AG. Rivers State (2017) 6 NWLR (Pt. 1561) 224 AT p. 273; Etajata V. Ologbo (2007) 16 NWLR (Pt. 1061) 554 AT pp. 601-602 Monkom V.

Odili (2010) 2 NWLR (Pt.1179) 419 AT p. 441. ​It was also submitted that the 1st Respondent neither proved nor was entitled to Mesne profit, being damages for holding onto possession and paid to a landlord by a tenant whose tenancy has expired and he is still holding possession and thus only recoverable by a landlord from his erstwhile tenant and contended that in the absence of any title to the property in dispute the 1st Respondent was not entitled to the reversionary interest in the property in dispute and urged the Court to hold that the lower Court was in error when it held that the 1st Respondent was entitled to Mesne profit from the Appellant never being a tenant to the 1st Respondent and to allow the appeal, set aside the perverse judgment and dismiss the claims of the 1st Respondent against the Appellant for lacking in merit.

Counsel relied on Sobande V. Igboekwe (2018) All FWLR (Pt. 919) 32 AT p. 65; Abeke V. Odunsi (2013) All FWLR (Pt. 697) 559 AT pp. 677-678; Debs V. Cenico Nigeria Ltd. (1986) 3 NWLR (Pt. 32) 846; Bramwell V. Bramwell (1942) 1KB 370.

It was further submitted that it was a wonder how the lower Court arrived at the sum of N3,500,000.00 mesne profit payable to the 1st Respondent by the Appellant when in evidence the rent payable from 29/2/2008-28/2/2009 was N650,00000 and same amount from 29/2/2009-28/2/2010 and contended that the increase from N650,000.00 per annum to N3,500,000.00 per annum, an increase of over 400% within a period of two years, without any evidence beyond the mere pleadings and statements on oath of PW1 and PW2 without any demonstration of the sudden increase amounted to failure to proof an assertion by the 1st Respondent and urged the Court to hold that the lower Court was wrong to have granted such an unproved claim to the 1st Respondent amounting to mere speculation and to allow the appeal, set aside the perverse judgment and dismiss the claims of the 1st Respondent for lacking in merit.

Counsel referred to Section 131, 132 and 133 of the Evidence Act 2011, and relied on Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 1 AT p. 273; NITEL Ltd V. Okeke (2017) 9 NWLR (Pt. 1571) 439 AT p. 462; Onovo V. Mba (2014) 14 NWLR (Pt. 1427) 391 AT p. 414; Chaka V. Messrs Aerobell (2014) All FWLR (Pt. 720) 1352 AT p. 1370; Debs V. Cenico (Nig.) Ltd (1986) 3NWLR (Pt. 32) 846 AT p. 851; Nigerian Construction and Holdings Co. Ltd V. Owoyele (1988) 4NWLR (Pt. 90) 588; Ruthlinz Inter’l Invest. Ltd & Anor V.

Ihebuzor (2016) All FWLR (Pt. 852) 1453 AT p. 1483. 1ST RESPONDENT’S COUNSEL SUBMISSIONS In his submissions, which I have taken time to review, learned counsel for the 1st Respondent had submitted inter alia that in the main the facts of the case were undisputed that the Appellant was a tenant to the 2nd and 4th Respondents, which she admitted, and that she had sought to purchase the property in dispute but failed to do so and same was sold to the 1st Respondent and that the tenancy has lapsed since 2010 and by the admission of the DW2, the Appellant’s husband the property in dispute was sold in 2009 and contended that the Appellant was bound by the admission of DW2 and urged the Court to hold that on the state of the pleadings and evidence led, the lower Court was right when it admitted and acted on Exhibit AS1 as evidence of equitable interest in favor of the 1st Respondent, who by preponderance of evidence and on a balance of probability proved all her claims against the Appellant and to dismiss the appeal and affirm the correct judgment of the Court below.

Counsel referred to Sections 6, 131, 132 and 133 of Evidence Act 2011, and relied on Aregbesola & Ors Vs Oyinlola & Ors (2011) 9 NWLR (Pt. 1253) 458 AT p. 572. See also BON Ltd V. Saleh (1999) 9 NWLR (Pt. 618) 331; Torti V. Ukpabi (1984) 11 SCNLR 214; Okoye V. Obiano (2010) 8 NWLR (Pt. 1195) 145 AT p. 169; Sani V. KSHA (2019) 4 NWLR (Pt. 1661) 172 AT p. 189; Okonkwo V. Mobil Oil (Nig) Plc (2010) 10 NWLR (Pt. 1679) 1.

It was also submitted that the Appellant who disowned the signature on the written statement on oath left the case of the 1st Respondent unchallenged and thereby left the lower Court with any choice than to rely and act on the unchallenged evidence of the 1st Respondent on the face of the outright inconsistent evidence of the Appellant as DW1 and contended that from the totality of the evidence led, the Appellant who admitted that she was a tenant on the property in dispute cannot turn round to claim ownership of the same property against her landlord who had sold their interest to the 1st Respondent and urged the Court to hold that the lower Court was right when it believed and acted on the credible, unchallenged and consistent evidence of the 1st Respondent to find against the Appellant whose evidence were outright lies and thus unreliable in law and to dismiss the appeal for being frivolous and affirm the correct judgment of the lower Court.

Counsel relied on Nnajiofor V. Ukonu (1986) 4 NWLR (Pt. 36) 505 AT p. 506; Ezemba V. Ibeneme (2004) 14 NWLR (Pt. 894) 617 AT p. 654; Adewale V. Olaifa (2012) 17 NWLR (Pt. 1330) 478 AT pp. 520-521; Onubogu and Anor V. The State (1974) 4 ECSCR 403 AT p. 411.

It was further submitted that proper foundation was laid for the admissibility of Exhibit AS1, which original copy was tendered in evidence in the criminal trial of the Appellant and was therefore, properly certified by the Registrar of the lower Court and contended that the original of Exhibit AS1 being therefore, in the custody of the Court need not be certified by the issuing authority and having been tendered as evidence of transaction need not be registered to be admissible in evidence and urged the Court to hold that the Appellant who had no color of right cannot in law defeat the equitable interest of the 1st Respondent, whose Exhibit AS1, being the official act of the agency of Government assumed the toga of regularity and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel referred to Sections 104 (3), 105, 168(1) and 251(1) of the Evidence Act 2011, and relied on PDP V. INEC (2014) 17 NWLR (Pt. 1427) 525 AT p. 563; Adamu V. State (2017) 16 NWLR (Pt. 1592) 352 AT p. 395; Aja V. Odin (2011) 5 NWLR (Pt. 1241) 509 AT p. 543; First Equity Sec. Ltd. V. Anozie (2015) 12 NWLR (Pt. 1473) 337 2 AT p. 363; Obi V. Minister FCT (2015) 9 NWLR (Pt. 1465) 410 AT p. 629; Ifaramoye V. State (2017) 8 NWLR (Pt. 1568) 457 AT p. 491.

It was also further submitted that in law documentary evidence is the best evidence and contended that the 1st Respondent tendered sufficient documentary evidence in proof of her claims, showing her equitable interest in the property in dispute far and above the lack of any scintilla of interest in the Appellant and urged the Court to hold that in recent times the law is the even an unregistered registrable instrument if properly pleaded is admissible in proof of legal interest and not just equitable interest only since evidence permissible by the Evidence Act cannot be rendered inadmissible by state law, such as Section 15 of the Land Registration Act, CAP 515 Law of Federal Capital Territory Abuja and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel relied on Moses Benjamin & Ors V. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38; Adun V. Osunde (2003) 16 NWLR (Pt. 847) 643; Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 425; Bunge V. Gov. River State (2006) 12 NWLR (Pt. 995) 573 AT pp. 629-630; CAP Plc. V. Vital Investment Ltd (2006) 6 NWLR (Pt. 976) 220 AT pp. 266-267; Anagbado V. Faruk (2019) 1 NWLR (Pt. 1653) 292 AT pp. 311-312.

It was also submitted that the parties never joined any issue on quit notice as none of the parties pleaded service of quit notice and also did not give any evidence thereon and contended that cases are decided on issues joined by the parties and evidence led thereon and urged the Court to hold that the Appellant haven never made an issue of service of quit notice cannot merely raise it on appeal on submission of her counsel and to discountenance all the submissions on the issue of service of hearing notice and hold further that the 1st Respondent was entitled to her claim for mesne profit against the Appellant as found and granted by the lower Court and to dismiss the appeal and affirm the correct judgment of the lower Court.

Counsel relied on Ajide V. Kelani (1985) 11 SC (Reprint) 82; Balogun V. Amubikanhan (1985) 3 NWLR (Pt. 11) 27; Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416 AT pp. 504-505.

RESOLUTION OF ISSUES ONE, TWO AND THREE My lords, the crux of these three issues is whether on the state of the pleadings and the evidence led by the parties, the 1st Respondent proved by credible admissible evidence and was thus entitled to the reliefs claimed by her against the Appellant and whether or not the lower Court was right when it admitted and acted on Exhibits AS1, AS3 and AS4 in finding for the 1st Respondent on her claims against the Appellant?

In considering these three issues, I bear in mind that the parties as well as the Court, and if I may add, their counsel, are bound by the pleadings of the parties. Thus, the parties are obliged to conduct and present their cases within the ambits and confines of the case as pleaded by them.

So also, are the counsel bound to make submissions supported by both the pleadings and evidence led by their clients and not to pluck submissions in the air not founded on the case as pleaded and presented in evidence by the parties, merely because counsel comes across such decisions in the course of his preparation for his arguments before the Court. ​I thought I should also mention from the onset that evidence which is unchallenged and or uncontroverted is good evidence on which a Court can rely to make findings of facts.

So also, it is the law that facts admitted, either in the pleadings or under the intense heat of cross-examination, which supports the pleadings of the cross-examining party, need no further proof and are all good evidence on which a Court could rely to make proper finding of fact as between the parties.

It follows therefore, in the determination of whether a Claimant has proved his case on a balance of probability or preponderance of evidence, the burden of proof on a Claimant whose case is unchallenged is in law said to be ‘minimal.’ The 1st Respondent testified as PW1 and amongst the several documents tendered by her and which were admitted in evidence by the lower Court were Exhibit AS1, a CTC of a letter of allocation of the property in dispute dated 31/1/2005 issued to the 2nd Respondent; Exhibit AS2, a photocopy of FCMB Manager’s Cheque DATED 24/8/2009 for the sum of N45,000,000.00 as valuable consideration paid by the 1st Respondent to the 2nd Respondent for the property in dispute; Exhibit AS3, a Deed of Assignment dated 2/8/2009 and executed by the 2nd Respondent in favor of the 1st Respondent; and Exhibit AS4, Power of Attorney dated 2/8/2009 and donated by the 2nd Respondent in favor of the 1st Respondent.

The PW2, was one Sunday Zaki, an Estate Agent, who testified amongst others as to the rent payable for similar property in the area of the property in dispute as being within the range of N3,500,000.00 per annum. The Appellant testified as DW1 and tendered in evidence amongst other documents Exhibit DG1, the tenancy agreement dated 29/2/2009 between the 4th Respondent as landlord and DW1 as tenant in the property in dispute for two years commencing from 2008.

The husband of the Appellant, one Nnabuchi Martins, testified as DW2 and affirmed the tenant status of the Appellant to the 4th Respondent for two years at the rent of N650,000.00 per annum. See pages 5-8 of the Additional Record of Appeal for the Power of Attorney Given by Real Properties & Investments Ltd – Donor in Favor of Ann J. Solomon – Donee. See also pages 10-14 of the Additional Record of Appeal for Deed of Assignment Between Real Properties & Investments Ltd – Assignor and Ann J. Solomon- Assignee.

See further pages 23-27 of the Additional Record of Appeal for the Tenancy Agreement between Senator Rasheed Ladoja and Dr. (Mrs.) Grace Martins and page 28 of the Additional Record of Appeal for the letter of offer for sale of property in dispute dated 10/11/2008 by 2nd Respondent to the Appellant.

It was on the strength of the averments in the pleadings and evidence, both oral and documentary, as led by the parties, that the lower Court had in its judgment delivered on 18/9/2019 granted some of the claims of the 1st Respondent against the Appellant and the 2nd-4th Respondents as Defendants, holding inter alia as follows: “The 1st Defendant admitted both in her pleading and evidence before the Court that she is a tenant in the disputed property…It is therefore curious that the 1st Defendant who recognized the 2nd-4th Defendants especially the 4th Defendant as the owner of the disputed property and paid rent to him in 2009 has come up with different and seemingly confused narrative that the property belongs to a third party…However, the 1st Defendant did not tender any document in that regard.

The end result is that her attempt to attack the Plaintiffs title to the disputed property is unsuccessful…At the end of the day, I am satisfied that the Plaintiff has established her entitlement to recover mesne profit from the 1st Defendant effective from 1/3/2010 in the sum of N3,500,000.00 only and I order as such… At the end of the day, the case of the Plaintiff is successful.” See pages 424–451 of the Record of Appeal.

My lords, nowadays, the written statements on oath of witnesses have been virtually turned into reproduction or replica of the averments of the parties, so much so that cross-examination has become the most basic test of the credibility of witnesses in our trial Courts, such as the lower Court. The 1st Respondent as PW1 and her witness as PW2 were thoroughly cross-examined but were not shaken at all as they maintained and remained consistent in their evidence given in chief. However, the same cannot be said of the Appellant and her husband who testified as DW1 and DW2 respectively.

Under cross-examination, the Appellant as DW1 admitted that she did not sign the written statement on oath she had adopted as her evidence in chief, which admission alone rendered her entire evidence as unreliable and amounting to no evidence at all. The Appellant did not stop there, she also admitted that she is just a tenant in the property in dispute to the 4th Respondent and whose tenancy had lapsed since 2010.

On his part, DW2, also minced no word when he admitted under cross-examination that not only were they tenants on the property in dispute but that they were told that the property in dispute had been sold in 2009. Curiously, neither the Appellant as DW1 nor her husband as DW2 tendered any documentary evidence to substantiate the allegations by the Appellant that the property in dispute does not belong to the 2nd and 4th Respondents, her landlords, for which she tendered Exhibit DG1, but that it belonged to the Oyo State Government.

Thus, this very crucial allegation of the Appellant forming the real basis of her defence to the claims of the 1st Respondent was left without any shred or iota of evidence. It remained bare and unproved. The law is that it is he who asserts that must prove.

However, since it is the 1st Respondent that was the Claimant the general burden of proof was on her to produce sufficient, credible and admissible evidence in proof of her claims against the Appellant, failing which her claims must be dismissed, notwithstanding the obvious weaknesses of the defence of the Appellant. So, did the 1st Respondent prove her claims against the Appellant as required by law and was the lower Court right when it found in favor of the 1st Respondent against the Appellant and granted the reliefs claimed?

This takes me to the consideration of the issue of the admissibility or otherwise of Exhibits AS1, AS3 and AS4, which forms the major plank of the challenge to the correctness of the judgment of the lower Court. In law, the test or hallmark of admissibility of any piece of evidence is relevancy. Thus, generally the source of evidence does not affect admissibility of evidence in so far as it is relevant to the fact in issue and is duly pleaded. See Section 6 of the Evidence Act 2011. See also Aregbesola & Ors Vs Oyinlola & Ors (2011) 9 NWLR (Pt. 1253) 458 AT p. 572. See also BON Ltd V.

Saleh (1999) 9 NWLR (Pt. 618) 331; Torti V. Ukpabi (1984) 11 SCNLR 214; Okoye V. Obiano (2010) 8 NWLR (Pt. 1195) 145 AT p. 169; Sani V. KSHA (2019) 4 NWLR (Pt. 1661) 172 AT p. 189. Now, at the lower Court, the 1st Respondent had pleaded and relied on the letter of allocation, the Deed of Assignment and Power of Attorney as evidence of transaction having not perfected same as required by law.

There was evidence led in foundation for the tendering of the letter of allocation that the original had been tendered by the 4th Respondent before a Magistrate Court in Abuja for the criminal trial of the Appellant. Both parties are ad idem that this fact was true. I have looked at the Record of Proceeding and I can see that indeed it is true that on 4/9/2011, the letter of allocation dated 13/1/2005 was tendered in evidence by the 4th Respondent as the PW3 before the Magistrate Court presided over by one His Worship O. O. Oyewumi (Mrs) in COP V. Mrs.

Grace Martins and same was admitted as Exhibit L. See pages 67-68 of the Additional Record of Appeal. Now, from both the pleadings and the evidence led thereon, it is clear to me and I so hold that the 1st Respondent made it abundantly clear that Exhibits AS1, AS3 and AS4 were by virtue of Exhibits AS2, the payment of N45,000,000.00 to the 2nd and 4th Respondent by the 1st Respondent, tendered as evidence of both the transaction and acknowledgment of the payment for the said amount by the 1st Respondent for the property in dispute.

There was also, in my finding, proper foundation laid to show that the original of Exhibit AS1 was at no other place than in the custody of the Judiciary of the FCT Abuja. It is my view therefore, and I so firmly hold, that since the original copy of Exhibits AS1 was shown to be in the custody of the FCT Judiciary, a Certification to that effect by the FCT Judiciary, be it the High Court or Magistrate Court of the FCT, suffice for the purposes of its certification as a public document.

I therefore, do not see any merit in the vehement but erroneous contention that Exhibit AS1 was not duly certified and thus, was inadmissible in evidence. I do not think so! The distinction sought to be made between the High Court of the FCT and the Magistrate Court of the FCT is like differentiating between six and half a dozen. It is meaningless. Both Courts belong to the FCT Judiciary. See Sections 104 (3), 105, 168(1) and 251(1) of the Evidence Act 2011. See also PDP V. INEC (2014) 17 NWLR (Pt. 1427) 525 AT p. 563; Aja V. Odin (2011) 5 NWLR (Pt. 1241) 509 AT p. 543; First Equity Sec. Ltd.

V. Anozie (2015) 12 NWLR (Pt. 1473) 337 2 AT p. 363; Obi V. Minister FCT (2015) 9 NWLR (Pt. 1465) 410 AT p. 629. The position of the law as regards the admissibility of Exhibit AS1, if it is taken as a document of title, and Exhibits AS3 and AS4, used to be that they can only be admissible in evidence of payment of money and/or transaction in support of equitable interest in land if coupled with possession.

In otherwise, where a party who relies on such documents which are registrable instrument but are not registered, and he is not in possession then they cannot be admitted in evidence on the basis of any equitable interest in land. The decided authorities on this position of the law are legion and are as replete in the law reports. See Mohammed V. Farmers Supply Co.

KDS Ltd (2019) 17 NWLR (Pt. 1701) 187 AT p. 216, where the Supreme Court had pronounced inter alia thus: “A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money.” See also Regd. Trustees Apostolic Faith Mission V. James (1987) 3 NWLR (Pt. 61) 556.

However, the full Court of the Supreme Court had in the recent past taken a second but perhaps more critical look at the above position of the law in so far as admissibility of evidence is within the exclusive legislative list and thus governed principally by the provisions of the Evidence Act 2011 and came to the emphatic conclusion that once evidence is rendered admissible by the Evidence Act 2011, no provisions of a State law can render such evidence inadmissible and/or exclude such evidence from being admissible in evidence.

In other words, with or without possession, documents such as Exhibits AS1, AS3 and AS4 are admissible in evidence to support equitable interest in land. See Moses Benjamin & Ors v. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38. The lower Court referred to this decision as revolutionary but the learned counsel for the Appellant will hear none of it.

I think it was an extraordinary piece of decision judging from the tenaciously long held position of the law that possession was sine quo non for documents such as Exhibits AS1, AS3 and AS4, as unregistered as they are but being registrable instruments, to confer any equitable interest in land. Thus, the correct position of the law now is that an unregistered registrable instrument if properly pleaded is admissible in proof of equitable interest in land without proof of possession of the land in dispute.

This is so because, as the full Court of the Apex Court had reasoned, evidence permissible by the Evidence Act 2011 cannot be rendered inadmissible by any State law, such as the provisions of the Land Registration Laws of the various States, including the FCT Abuja. See Section 6 of the Evidence Act 2011. See also Moses Benjamin & Ors V. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38. I have even pondered over the point whether Exhibit AS1, merely a letter of allocation of the property in dispute alone, without more, is a document of title and thus registrable in law?

I think not. ​Now, in law civil matters are proved on a balance of probability or on a preponderance of evidence. See Section 131, 132 and 133 of Evidence Act.

Having held as above that Exhibits AS1, A3 and AS4 were admissible in evidence and were thus, rightly admitted in evidence by the lower Court, the question then is: did they prove the equitable interest of the 1st Respondent in the property in dispute, and if yes, was the 1st Respondent entitled to the relief of mesne profit and the sum of N3,500,000.00 per annum as mesne profit as claimed by her against the Appellant and was the lower Court right when it granted this relief in favor of the 1st Respondent against the Appellant?

I had earlier pointed out that in civil litigation the parties, as well as the Court, and indeed even their counsel, are bound by the pleadings of the parties. The Parties are bound to present their cases in line with the averments in their pleadings and would therefore, not be allowed to plead one case and attempt to prove a different case at the trial.

The Court is also bound to consider the cases as pleaded and presented in evidence by the parties and would therefore, not be allowed to go outside the cases of the parties to make findings of facts and reaching conclusions thereon outside the case of the parties and/or make a case for a party which that party did not make.

So also, counsel are obliged to limit their legal submissions to the case as pleaded and presented in evidence by the parties and therefore, would not be allowed to pluck decided cases by the ear and rely on decisions which are not apposite to the facts and evidence led by the parties, and pushing them forward as judicial precedents.

In the pleadings of the parties, no issue was joined on the issuance of quit notice on the Appellant by the 1st Respondent as the parties are ad idem that the Appellant had since 2010, when her tenancy on the property in dispute lapsed stayed over in the property in dispute. This fact was admitted by both the DW1 and DW2 and therefore, needed no further proof by the 1st Respondent. The DW2 also admitted that they were told that the property in dispute had been sold by their landlord in 2009. This fact also needed no further proof by the 1st Respondent.

In law, an issue or fact not pleaded goes to no issue and so also an averment in a pleading not supported by evidence is deemed abandoned. See Balogun V. Amubikanhan (1985) 3 NWLR (Pt. 11) 27; Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416 AT pp. 504-505.

My lords, from these admitted facts, it is clear and I so find as fact, as was also correctly found as fact by the lower Court, that since the expiration of the tenancy of the Appellant she has held over the property in dispute neither paying rent to the 1st Respondent nor to the 2nd-4th Respondents.

In law, these unchallenged pieces of evidence as led by the PW1 and PW2 is good evidence on which a Court can rely and act to make proper finding of facts, more so as in the instant case when most of these evidence were even admitted by the Appellant as DW1 and her husband, this evidence and as DW2. The claim of the 1st Respondent was basically, and in reality, not contested with any seriousness by the Appellant.

The parties did not join any issue neither on the need to issue notice to quit to the Appellant nor on the amount of rent due payable as mesne profit on the property in dispute. ​Yet, the Appellant led evidence through the PW2, an Estate Agent, as to the amount payable as rent on similar property in the area, Games Village, Abuja, where the property in dispute is situate. Curiously, the PW2 was not even taken up on this aspect of his evidence in his cross-examination by the learned counsel to the Appellant.

In law, such evidence is taken as admitted coupled with the lack of any effective traverse of paragraph 16 of the 1st Respondent’s Amended Statement of Claim by the Appellant. There was indeed, in my finding a total admission of the claim of the 1st Respondent against the Appellant of her entitlement both to mesne profit and the amount of N3,500,000.00 claimed and proved in evidence through PW2. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 611. See also Ogbeide V. Osula (2004) 12 NWLR (Pt. 886) 117.

In paragraph 16 of the Amended Statement of Claim of the 1st Respondent, the 1st Respondent averred as follows: “That I am aware that the value of rent at Games Village for a similar property is N3,500,000.00 only per annum” In response, in the Amended Statement of Defence, in answer to paragraph 16 of the Amended Statement of Claim of the 1st Respondent, the Appellant averred as follows: “The 1st Defendant denies paragraph 15 and 16 of the Plaintiff’s statement of claim and subjects the Plaintiff to the strictest proof thereof.” ​In law, in order to raise an issue of fact in pleading, there must be a proper traverse.

Thus, a mere denial of a material allegation which is merely general or evasive but not specific would not amount to joinder of issues. It follows therefore, a plea that the Defendant ‘puts Claimant to the strictest proof’ or that ‘the Defendant does not admit the correctness of an allegation in the Statement of Claim’ are all insufficient denial and are deemed to amount to an admission of the averment in the Statement of Claim, and thereby obviating the need for the Claimant to proof facts already admitted by the Defendant. The law is and always been that facts admitted need no further proof.

See Ekwealor V. Obasi (1990) 2 NWLR (Pt. 131) 231 AT p. 251; Ogunola V. Eiyekole (1990) 4 NWLR (Pt. 146) 632 AT p. 646; Orianzi V. AG. Rivers State (2017) 6 NWLR (Pt. 1561) 224 AT pp. 266-267; Oshodi V. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 AT p. 337. ​My Lord, added to these vague traverse by the Appellant are the various admissions under cross-examination by the DW1 and DW2 which evidence are completely in support of the case of the 1st Respondent as pleaded and therefore, in law the 1st Respondent was entitled to rely and make use of them.

This is so because in law evidence elicited under cross-examination is part of the proceedings and once they are pleaded facts must be given its full probative value. See Gaji V. Paye (2003) 8 NWLR (Pt. 823) 611; Ogbeide V. Osula (2004) 12 NWLR (Pt. 886) 117. PW2 in his evidence in chief had stated inter alia thus: “That I am an Estate Manager and acted as an Agent in the transaction…That as an Estate Manager, I am aware that the value of rent at Games Village is N3,500,000.00 only per annum for similar properties”.

The several pieces of evidence elicited from DW2 under cross-examination amounted to admission against interest and the law is trite that facts admitted need no further proof. The DW2 admitted that his wife, the Appellant did not ‘tender any document that the property belongs to her’. This clearly amounted to admission against interest by the DW2 against the Appellant, his wife. In law, facts admitted need no further proof. See Section 123 of the Evidence Act. See also Ogbiri V. NAC Ltd (2010) 14 NWLR (Pt. 1213) 208 AT p. 224; Nwankwo V. Abadie (2003) 12 NWLR (Pt. 834) 381 AT pp. 403-404.

I hold that the evidence of PW1 alone, in the absence of any joinder of issue on quit Notice by the Appellant, was sufficient to prove her claim for mesne profit against the Appellant, having already established her equitable interest in the property in dispute as against the complete lack of any color of right in the Appellant to the property in dispute.

I also hold that the evidence of PW2 alone, in the absence of any contrary evidence from the Appellant and her witness DW2, was sufficient to and did prove the amount payable as mesne profit in respect of the property in dispute and as claimed by the 1st Respondent against the Appellant. I must observe, and very pertinently too, that in law, a party is not bound to call a horde of witnesses before he can succeed in his case. Thus, once he has led sufficient evidence in proof of his case that would suffice! See Section 20 of the Evidence Act 2011. See also Dare V.

Fagbamila (2009) WRN 17 AT p. 192; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471 AT p. 491. ​In the light of all I have stated and found above, issues one, two and three for determination are hereby resolved against the Appellant in favour of the 1st Respondent.

On the whole therefore, having upheld grounds 1 and 3 of the 1st Respondent’s Notice of Preliminary Objection and having resolved issues one, two and three for determination against the Appellant in favour of the 1st Respondent, I hold that the appeal is incompetent as well as lacking in merit and thus, liable to struck out and/or dismissed. Consequently, this appeal is hereby struck out for being incompetent and or dismissed for lacking in merit. In the result, that part of the judgment of the High Court of the Federal Capital Territory, Abuja, Coram: H. B. Yusuf J, in Suit No.

FCT/HC/CV/776/2012: Ann J. Solomon V. Dr. (Mrs.) Grace Martins & Ors delivered on 18/9/2019 granting the claims of the 1st Respondent as Claimant against the Appellant as 1st Defendant is hereby affirmed. There shall be cost of N300,000.00 against the Appellant in favour of the 1st Respondent only.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft, the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA. I agree with the resolution of the issues and the conclusion thereat. An Appellant’s brief by the Rules of this Court, specifically Order 19 Rule 2 of the 2021 Rules of this Court is a succinct statement of the appellant’s argument in the appeal. The brief is what sets the tone of the hearing of the appeal. It is usually what the respondents look into to put in their own brief of argument.

The brief of the Appellant must be filed within the time allocated to it by the Rules of Court. If the Appellant fails to file, there is a sanction. The repercussion is prescribed by Order 19 Rule (10)(1) and (2) which provide as follows: 10. – (1) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails to file his brief, he will not be heard in oral argument.

Where an Appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief. (2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Court may, suo motu, dismiss the appeal for want of prosecution. Time is prime when it comes to filing of brief of argument by the Appellant. Failure of the Appellant to file his brief within time leads to a dismissal of the appeal for want of prosecution.

There is no use filing a brief which is out of time. The simple remedy where a brief is filed out of time is to seek the indulgence of the Court by an application for extension of time to file the brief. When this is not done as in the instant case and the Appellant rail road the Court into hearing the appeal on it, the appeal will not pass competency test. The situation as found in this appeal is with due respect, an exhibition of lack of diligence. The appeal cannot be sustained in the circumstance.

I agree with my learned brother in the lead judgment that the appeal be struck out and it is hereby struck out by me. ​A look at the merit of the appeal shows clearly that the evaluation of evidence and findings of the trial Court are unassailable. Even on merit, the appeal has no substance. It is for this and the more elaborate reasons advanced in the lead judgment which I adopt as mine that I too, do dismiss this appeal. I abide by the consequential orders inclusive of the order as to costs as made in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The Notice of Appeal is the originating process for an appeal. It is akin to a writ of summons: FAYEMI vs. ONI (2010) 17 NWLR (PT 1222) 326. Being an originating process, it must be served on the Respondent personally. As has been demonstrated in the leading judgment of my learned brother, Biobele Abraham Georgewill, JCA, which I was privileged to read in draft, the Notice of Appeal was not served on the 1st Respondent.

The law is settled beyond peradventure that it is fatal where the Notice of Appeal has not been served, as the consequence is that the jurisdiction of the appellate Court is not activated. See ADEGBOLA vs. OSIYI (2017) LPELR (42471) 1 at 14-15, HARRY vs. MENAKAYA (2017) LPELR (42363) 1 at 38-39 and ODEY vs. ALAGA (2021) LPELR (53408) 1 at 19-27 and 71-75.

Therefore, the consequence of the non-service of the Notice of Appeal on the 1st Respondent is that the jurisdiction of this Court to entertain the appeal has not been activated. The appeal is therefore incompetent and will have to be struck out for want of jurisdiction: ODEY vs. ALAGA (supra), BUNI vs. OZOBO (2020) LPELR (52282) 1 at 25-40, APC vs. OZOBO (2020) LPELR (52283) 1 at 10-24, NCSU vs. EKASA (2021) LPELR (54752) 1 at 6-7, ANWAKOBE vs. ESUMEI (2018) LPELR (47255) 1 at 13-17, NIGERIA CUSTOMS SERVICE vs. OGUNSINA (2022) LPELR (56415) 1 at 11-12 and NIGERIA CUSTOMS SERVICE vs.

SUNDAY (2022) LPELR (56417) 1 at 12-13. ​It is predicated on the foregoing reason and the more elaborate reasoning and conclusion articulated in the leading judgment that I also strike out this appeal for being incompetent.

Judgment

MISITURA OMODERE BOLAJI-YUSUFF J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State delivered in suit no. W/63/2010 on 17/5/2013.

The respondent as the claimant at the lower Court commenced the action by a writ of summons and statement of claim wherein he claimed the following reliefs against the appellants: (a) The sum of N5,304,400.00 (five million three hundred and four thousand four hundred naira) representing the total sum accruable to the respondent as his entitlement from the profits which accrued from July to January, 2010 till date. (b) Interest pursuant to Order 35 Rule 7 High Court of Delta State (Civil Procedure) Rules, 2009 on the judgment debt and costs at the rate of 15% per annum from the date of judgment until actual liquidation of the judgment debt.

The appellants counter-claimed against the appellant as follows: (a) The sum of N1,887,296.00 (one million eight hundred and eighty- seven thousand two hundred and ninety-six naira) ​The case of the respondent as the claimant at the lower Court was that sometime in the year 2002, his uncle, Chief A.M. Bubor (JP) secured a contract with Chevron Nigeria Ltd to supply a barge for the services of the company which contract is a running contract. His uncle thereafter engaged him as an agent to secure the said barge which he did. He secured the barge from MR.

KHODER MAZIOUM, the 1st appellant which he supplied to Chevron Nig. Ltd. The agreed contract sum to be paid by Chevron was $600.00 per day. His uncle and the 1st appellant agreed among themselves that the contract sum which was $600 should be shared in the ratio of $450 to the 1st defendant, $130 to Chief Bubor and $20 to the respondent per day. The appellants withheld the respondent’s entitlement of $20 per day on the vague excuse that the Bank which sponsored the purchase of the Barge was still recovering the loan.

The appellants were paying Chief Bubor promptly without any hitch or disruption. After several demands by the respondent, the appellants paid a total sum of N1,887,296.00 (One Million, Eight Hundred and Eighty-Seven Thousand, Two Hundred and Ninety-Six Naira). The appellants have persistently and doggedly refused to pay the balance. The appellants’ case was that the respondent is Chief Bubor’s nephew and agent and he can only receive remuneration from Chief Bubor.

They averred that they dealt directly with Chief Bubor and not the respondent a fact which has long been made known to the respondent by the Economic and Financial Crimes Commission to who the respondent reported this matter. According to the appellants, there was no time the parties and Chief Bubor agreed that proceeds from the contract should be shared amongst them, the only person whom the appellants agreed to pay was Chief Bubor. They alleged that the respondent misled them into thinking that it was a directive from Chief Bubor and Chevron that the respondent be paid.

When Chief Bubor discovered that $20 of his money had been deducted by the appellants, he reported the appellants to Chevron Marine Logistic Supervisor who instructed appellants to immediately pay the backlog of the said $20 in the presence of the respondent. That instruction was complied with despite the fact that the money had wrongly been paid to the respondent who did not return same. They denied being indebted to the respondent. They contended that the respondent’s action is statute barred.

The respondent testified in support of his case and called no other witness. 1st appellant and one other witness testified for the appellants. In its considered judgment delivered by C. E. Ajilefu, J, the lower Court held that the action is not statute-barred. Judgment was entered in favour of the respondent in the sum of N5,304,400.00 (five million three hundred and four thousand four hundred naira). The appellants’ counter-claim was dismissed. The appellants filed a notice of appeal against the judgment on 20/5/13.

An amended notice of appeal filed on 12/4/19 was deemed as properly filed and served on 9/10/19. The four grounds of appeal in the amended notice of appeal without their particulars are as follows: GROUND 1 The learned trial Judge erred in law when she held that the action is not statute-barred since the contract is a running contract. GROUND 2 The judgment is against the weight of evidence GROUND 3 The learned trial Judge erred in law and on facts in failing to hold and observe that there was no privity of contract and no enforceable contract between the respondent and the appellants GROUND 4

The learned trial Judge erred in law and on facts in failing to hold and observe that there was no valid witness statement on oath in support of respondent’s claim before the Court below.” The appellants filed a brief of argument on 2/4/14 which was withdrawn and struck out. Another appellants’ brief of argument filed on 10/10/19 was deemed as properly filed and served on 22/6/20. The respondent’s brief of argument was filed on 20/10/14 in response to the appellant’s brief which was struck out. The respondent did not file a fresh brief in response to the appellant’s brief filed on 10/10/19.

However, the respondent’s brief was also deemed as properly filed and served on 22/6/20, the same day the appellants’ brief was deemed as properly filed and served. The appellants’ counsel adopted the appellants’ brief as his argument in this appeal. When the appeal was called, the respondent’s counsel was absent inspite of service of notice of hearing on him.

Pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021, the appeal was deemed as having been argued by the respondent based on the respondent’s brief of argument. ​The appellants formulated the following issues for determination: 1. Whether the learned trial Judge was right in holding that the respondent’s action was not statute barred. 2. Whether there was a valid statement on oath in support of the claim before the Court. 3. Whether there was a valid and enforceable contract between the respondent and the appellants. The respondent adopted the issues formulated by the appellants.

On issue 1 which is whether the learned trial Judge was right in holding that the respondent’s action was not statute-barred, the appellants’ counsel argued that from the averments in paragraphs 14-16 of the statement of claim, the cause of action accrued in July, 2004 when the 1st appellant allegedly refused to pay the respondent his daily entitlement and when the calculation of the respondent’s entitlement started while this action was commenced on 1st March, 2010 which is outside of the five years prescribed by Section 18 of the Limitation Law of Delta State, Cap L11, Volume 3, Laws of Delta State.

He submitted that in contract, the cause of action accrues not when the damages are suffered but when the breach occurs. He referred to LAGOS UNIVERSITY TEACHING HOSPITAL AND MANAGEMENT BOARD V. ADEWOLE (1998) 5 NWLR (PT.550) 406 418 (F-H). In response, the respondent’s counsel argued that the cause of action accrued after the appellants paid additional sum of N1,000,000.00 (one million naira) to the respondent on 15th March, 2005 and refused to make further payments.

Therefore, this action filed on 1st March, 2005 is not caught by the provision of Section 18 of the Limitation Law of Delta State. On how to determine the cause of action and when it accrues, counsel referred to JULIUS BERGER NIG. PLC V. OMOGUI (2001) FWLR (PT.64) 305 AT 307(RATIO 3). ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 80) 1. RESOLUTION The law is settled that where a law prescribes a time limit within which to institute an action to seek redress for a particular grievance, the action must be instituted within the prescribed time.

An action instituted after the expiration of the prescribed period is statute barred. For the purpose of limitation of action, time begins to run the moment the cause of action accrues. That is when there is in existence a person who can sue and another who can be sued and all facts which are material and have to be proved to entitle the claimant to succeed have happened. See I.N.E.C. V. ENASITO (2018) 2 NWLR (PT. 1602) 63. ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (SUPRA). OKAFOR V. B.D.U., JOS BRANCH (2017) 5 NWLR (PT. 1559) 385.

In order to determine whether an action is statute barred, the Court examines the originating process, the statement of claim and the evidence led if the case had gone into trial. In the instant case, the statement of claim together with the evidence on record. See ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (2017) 7 NWLR (PT.1563) 42.

The respondent’s action is based on contract.

Section 18 of the Limitation Law of Delta State provides that: “No action founded on contract, tort or any other action not specifically provided for in Parts 11 and 111 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” Section 30 (5), (6), (7) and 31 of the law provides that: (5) Subject to Subsection (6) of the Section, where any right of action has accrued to recover (a) any debt or other liquidated pecuniary claim;

or (b) any claim to the estate of a deceased person or to any share or interest in any such estate, And the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it, the right shall be treated as having accrued on and not before the date of the acknowledgment or payment. (6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt. (7) Subject to subsection (6) of this Section, a current period of limitation may be repeatedly extended under this Section by further acknowledgements or payments but a right of action, once barred by this Law, shall not be revived by any subsequent acknowledgment or payment. 31. (1) To be effective for the purposes of Section 30 of this Law, an acknowledgement must be in writing and signed by the person making it. (2) For the purposes of Section 30, any acknowledgement or payment: – (a) May be made by the agent of the person by whom it is required to be made under that Section;

and (b) Shall be made to the person, or to an agent of the person, whose interest or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.

I have perused the entire evidence on record. There is no evidence that the respondent paid a sum of N1,000,000.00 (one million naira) on 15th March, 2015. That submission is an attempt by the respondent’s counsel to smuggle in a piece of evidence which is not on record in the guise of writing a brief. It is wrong, unethical and unlawful for counsel in the guise of advocacy to lead evidence from the bar or concoct facts in the final address or brief of argument. See OGHENEOVU V. F.R.N (2019) 13 NWLR (PT. 1689) 335A T270 (B-D).

However, since the agreement was for payment of commission on monthly basis and the contract was still running as at the time the action was commenced, the lower Court was right to hold that the action is a continuous action and is not statute barred. The continuance of injury or damage which is a legal injury constitutes an exception to the general rule on limitation of action. See I.N.E.C. V. ENASITO (SUPRA). Issue 1 is resolved against the appellants.

On issue 2 which is whether there was a valid statement on oath in support of the claim before the Court, the appellants’ counsel submitted that there is nothing to show that the respondent’s statement was sworn to before any commissioner for oaths as there is no way the commissioner for oaths could have signed the oath on 25th February, 2010 when the action was filed on 1st March, 2010. He further submitted that the statement attached to the statement of claim is not admissible by virtue of Section 109 of the Evidence Act.

He posited that Order 3 Rule 2 (2) of the High Court (Civil Procedure) Rules of Delta State which requires statement on oath to be filed along with the statement of claim was not complied with. The respondent’s counsel on his part submitted that the complaint about the respondent’s statement on oath which accompanied the statement of claim is a fresh issue raised for the first time on appeal. He urged the Court to disregard the issue because the appellants failed to seek and obtain the leave of this Court to raise the issue. He referred to ADEGBUYI V.

MUSTAPHA (2010) ALL FWLR (PT.523) AT 1753 AT 1759 (RATIO 6). LAWRENCE V. A.G. FEDERARTION (2008) ALL FWLR (PT.426) 1901 AT 1904 (RATIO 2.). He stated that the date on the statement is a typographical error as the date of filing and when the statement was sworn to is clearly shown on the Court’s stamp. He posited that the respondent cannot be punished for the inadvertence of the commissioner for oaths to sign his portion of the statement.

According to counsel, the affidavit filed in support of the ex parte motion for summary judgment which was filed along with the writ of summons, statement of claim and the respondent’s statement on oath was signed by the commissioner for oath and that confirms the inadvertence of the commissioner to sign the statement on oath. RESOLUTION The appellants by a motion on notice filed on 8/6/20 sought the leave of this Court to raise and argue fresh issue not raised and argued at the lower Court. That application was granted on 22/6/20.

Therefore, the complaint of the respondent that no leave was sought and obtained by the appellants to raise the issue of failure to depose to the respondent’s statement on oath before a commissioner for oath has been overtaken by events. Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules, 2009 of Delta State provides that every writ of summons shall be accompanied by written statement on oath of the witness or witnesses. It is a mandatory requirement and a condition precedent to a witness testifying orally before the Court. See in OKOBIEMEN v.

UBN (JALINGO BRANCH, TARABA STATE (2017) LPELR-43633(CA) AT 13-16(B-E). A statement on oath must be sworn to before it can be adopted as evidence before the Court. An unsworn statement is not a statement on oath required to be filed along with the writ. See MODIBBO V. HAMMANJODA (2014) LPELR-24184(CA) AT 27-29 (A-B). OSASUYI V. MUDASHIRU (2013) LPELR-20358(CA) AT 19-20 (F-E). The writ of summons in the instant case was accompanied by the respondent’s statement on oath. However, the statement was not signed by the commissioner for oaths.

It is on record that the respondent adopted the statement on oath as his evidence before the Court. Before adopting the statement, he stated that he deposed to the statement at the Registry of the Court. That evidence was not challenged under cross-examination. The record of appeal shows that all the processes listed under Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules were filed along with the writ of summons together with the ex parte motion for summary judgment on 1st March, 2010.

The date of 25th February, 2010 typed on the affidavit in support of the ex parte motion was changed by hand to 1st March, 2010 and the commissioner for oaths signed the affidavit. The same thing was done on the second page of the writ of summons. All the processes including the statement of claim were filed on the same day. On the face of the respondent’s statement on oath there is evidence of payment for oath. The respondent signed the deponent column.

Taking into consideration the entire facts disclosed by the processes filed on 1st March and the fact that the commissioner for oaths signed the affidavit filed together with the statement on oath by the respondent at the same time, it is not difficult to come to the conclusion that the respondent deposed to the statement on oath but the commissioner inadvertently failed to sign it. On the facts and circumstances disclosed on record, it cannot be said that the statement adopted by the respondent as his evidence before the Court was not deposed to at all.

The situation would have been different if there was no payment for oath and the commissioner did not sign the other affidavit filed together with the statement on oath. The Court has always refused to visit the sin of the registrar on the litigant. See FAMFA OIL LTD. V. ATT. GEN. OF THE FEDERATION (2003) 18 NWLR (PT. 852) 453 AT 471. ORJI V. STATE (2019) 13 NWLR (PT.1688) 93. GBENGA V. APC (2020) 14 NWLR (PT.1744) 93. In this case, the respondent cannot be made to suffer for the obvious inadvertence of the commissioner for oaths. Issue 2 is resolved against the appellant.

Issue 3 is whether there was a valid and enforceable contract between the respondent and the appellants. On this issue, the appellant’s counsel submitted that from paragraphs 3-6 of the statement of claim, the respondent’s evidence under cross-examination and the evidence of 1st appellant and Chief Bubor (DW2), it is clear that the respondent had no agreement or contract with the appellants, he was an errand boy to his uncle, (DW2) or at the best an agent to DW2.

He further submitted that for an agreement or contract to be binding and enforceable, there must be offer, acceptance and consideration but apart from saying that he represented DW2 (Chief Bubor), the respondent did not plead and give evidence of the consideration furnished by him to the appellants in respect of the alleged oral agreement. There is therefore no valid and enforceable agreement. He argued that the absence of pleading and evidence of consideration or obligation on the part of the respondent renders any purported agreement between him and the appellants unenforceable.

He referred to BILANTE INT’L LTD. VS. N.D.I.C. (2011) 15 NWLR (PT. 1270) 407 AT 423, PARAS C-D. He contends that the learned trial Judge was wrong in giving judgment in favour of the respondent when there is no evidence of consideration, a basic and necessary element for the existence of a valid contract that is legally binding on the parties flowing from the respondent to the appellants.

The respondent’s counsel in his response submitted that there was a binding and enforceable oral agreement between the respondent and the appellants which was the basis upon which the appellants willingly and voluntarily made part payments of the respondent’s accrued entitlement and which said agreement was breached when the appellants refused and/or neglected to further pay the respondent his accrued entitlement.

He further submitted that an agreement can be oral or inferred from the conduct of the parties and notwithstanding the fact that the agreement in the instant case is oral, it is enforceable. He referred to DAMINA V. AKPAN (2011) ALL FWLR (PT580) 1298 AT 1300 RATIO 3. He posited that the test of the existence of a mutual assent between parties to an agreement is objective and must be outwardly manifested.

In the instant case, the appellants outwardly manifested the mutual, binding and enforceable agreement between them and the respondent when the appellants willingly and voluntarily made the part payment of the respondent’s accrued entitlements based on the oral agreement. He referred to A.G RIVERS STATE Vs. A.G AKWA IBOM STATE (2011) ALL FWLR (PT 579) 1023 AT 1033 RATIOS 2 & 3. RESOLUTION The law is that for a valid and binding contract to exist there must be an agreement, an intention to create legal relations, an offer and an unqualified acceptance of the offer and consideration.

See BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) LPELR-717(SC) AT 16-17 (D-A). An agreement can be oral or inferred from the conduct of the parties thereto. Once there is mutuality of purpose and intention, an oral agreement or contract is enforceable. See TAURA V. CHUKWU (2018) LPELR-45990(CA) AT 16-17(F). NSITF V. ACCESS BANK PLC (2015) LPELR-25790(CA) AT 11 (A-C). ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC) AT 25 (A-C), (2006) 18 NWLR (PT.1012)470.

In the instant case, the respondent gave evidence of the oral agreement between him and the appellants as a result of which the appellants paid the agreed monthly amount for some time before the payment stopped. The 1st appellant (DW1) admitted under cross-examination that it was based on the oral agreement between the respondent and the appellants that the agreed amount was paid to the respondent. He said they continued to pay the respondent until Chevron got to know about it and told him to stop. According to him, the payments to the respondent were made in error.

He said he was paying Chief Bubor $130 and $20 to the respondent. However, Chief Bubor who testified as DW2 confirmed the fact that the contract was for $550 per day. The 1st appellant’s share was $400 and his own was $150 per day. From the onset of the contract, the 1st appellant paid him $150 per day and did not owe him any arrears. That evidence knocked the bottom out of the case of the appellants that the respondent came to him after the contract was awarded and told him that $130 should be paid to Chief Bubor and $20 dollars should be paid to him.

DW1 said he was ordered to pay the full amount to DW2. He also said he told the respondent that DW2 had been asking for the backlog and he has been paying. However, DW2 under cross-examination and contrary to his statement on oath was emphatic that he was being paid his $150 per day from the beginning of the contract and Chevron supervisor did not order the appellants to pay him any arrears of money. The allegation of threat and harassment by the respondent was concocted by DW1 to avoid honouring an agreement voluntarily entered into by the parties.

If the respondent was not a broker or an agent, for what purpose was he introduced to DW1. Obviously, DW1 is not a witness of truth. No Court should accord any credibility to a witness who brazenly lied on oath. The lower Court was right to prefer the evidence of the respondent and rightly held that there was an oral contract between the respondent and 1st appellant. Issue 3 is resolved against the appellants. For the above reasons, I hold that this appeal has no merit. I hereby dismiss it. The judgment of the High Court of Delta State delivered in suit no. W/63/2010 on 17/5/2013 by C. E.

Ajilefu, J is hereby affirmed. There shall be 200,000.00 (two hundred thousand naira) costs in favour of the respondent and against the appellants. JOSEPH EYO EKANEM J.C.A.: I read in advance, the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with his lordship that the appeal has no merit. It is clear that there was an oral and binding agreement for the appellants to pay the respondent the sum of $20.00 per day. Dw1 admitted in cross-examination that it was based on the oral agreement that the amount was paid to the respondent.

The appellants by this course of conduct showed or admitted clearly that there was indeed such an agreement and confirmed the evidence of the respondent about the oral agreement. They cannot now seek to resile from their admission. See Sections 20 and 169 of the Evidence Act, 2011.

The contention by appellants that the payments to the respondent were made in error is unfounded as an erroneous admission is not known to the law. Again, a party would not be allowed to renege from his admission. See Zenith Plastics Ltd v. Samotech Ltd (2007) 16 NWLR (Pt. 1060) 315 and Crown Flour Mills Ltd v. Olokun (2008) 4 NWLR (Pt. 1077) 254. I therefore agree with my learned brother that this appeal has no merit. I dismiss the same and I abide by the consequential orders in the judgment of my learned brother.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I have read in advance, the judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother. I too hold that the appeal lacks merits and is accordingly dismissed. ​I abide by all consequential order (s) in the lead judgment.

Judgment

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment ): This is an appeal against the judgment of the High Court of Adamawa State in SUIT NO: ADSY/112/2018 delivered on 9th September, 2020 wherein the Court gave judgment in favour of the Respondent. The material facts of the case that culminated in this appeal is that the Respondent acting on the belief that she was entitled to declaration of title over the land in dispute brought an action before the lower Court vide writ of summons filed on 6th September, 2018, seeking the following: 1.

A declaration that the title and ownership to the land situated and lying at Bachure, Karewa Ward Jimeta measuring 30M x 15M is vested to the Plaintiff. 2. A declaration that the acts of the Defendant on the land situated and lying at Bachure, Karewa Ward Jimeta measuring 30M x 15M to the Plaintiff’s land constituted a trespass. 3. An order directing the Defendant to demolish an illegal structure erected on the Plaintiff’s land situated and lying at Bachure, Karewa Ward Jimeta measuring 30M x 15M. 4.

An order of perpetual injunction restraining the Defendant, his Agents, Servants, Privies and any other person whosoever claiming through him from further trespass and in any manner tampering with the said land of the Plaintiff. 5. The sum of N700,000 (Seven Hundred Thousand Naira) as general damages. 6. Cost of this suit Requisite processes were exchange between the parties, with the Appellant filing statement of defence, counter-claim and other relevant processes.

Following a full trial, the learned trial Judge, in a judgment delivered on 9th September, 2020, held that the Respondent had proved her claim, while the Appellant failed to prove his counter-claim. The lower Court consequently granted the Respondent’s prayers as prayed, save for the prayer for general damages, in respect of which the sum of N250,000.00 (two hundred and fifty thousand naira), was awarded in favour of the Respondent.

Dissatisfied, the Appellant appealed the judgment via Notice of Appeal dated and filed on 27th November, 2020 with two grounds of appeal. ​ The Appellant’s Brief of Argument is dated 20th September, 2021, and filed on 21st September, 2021, but deemed as properly filed on 23rd September, 2021. Appellant’s counsel formulated two issues for determination to wit: 1.

Whether the trial High Court Judge has not misdirected himself to have declared title to the land subject of this appeal to the Respondent when she has not proved her claim on the balance of probability and also dismissed the counter-claim of the Appellant. (Ground 1) 2.

Whether the trial Court Judge was not in error to have assigned this matter to himself, assumed jurisdiction, hear and determine same when there was serious protest from the Defendant regarding the filing, assignment and hearing of this matter by vacation Judge having fall outside the purview of cases that should be heard during vacation. (Ground 2) The Respondent’s Brief of Argument is dated and filed on 20th October, 2021. Respondent’s counsel distilled two issues for determination thus: 1.

Whether the Plaintiff/Respondent has proved title to the land in dispute and whether the trial Court was right when it declared title to land in dispute to the Plaintiff/Respondent, dismissed the Defendant/Appellant’s counter-claim having regard to the evidences adduced before the trial Court. (Ground 1) 2.

Whether the trial Court was right when it assumed jurisdiction, heard and determined the matter before it having regard to the affidavit of urgency placed before the trial Court by the Plaintiff/Respondent. (Ground 2) A calm examination of the issues as presented by counsel on both sides to this appeal reveals that they are substantially the same and adequately capture the controversy in this appeal. I adopt the Appellant’s issues for the purpose of convenience in the determination of this appeal.

ISSUE ONE: WHETHER THE TRIAL HIGH COURT JUDGE HAS NOT MISDIRECTED HIMSELF TO HAVE DECLARED TITLE TO THE LAND SUBJECT OF THIS APPEAL TO THE RESPONDENT WHEN SHE HAS NOT PROVED HER CLAIM ON THE BALANCE OF PROBABILITY AND ALSO DISMISSED THE COUNTER-CLAIM OF THE APPELLANT. (GROUND 1) Learned counsel for the Appellant argued that the evidence adduced by the Respondent at trial, was inconclusive and did not establish her claim to the land in dispute, because there is no document before the Court evidencing movement of title from Kabiru Lamdo Hadeja the original owner to Lawan Mohammed Gidado and subsequently from Lawan Mohammed Gidado to John Zuntuwa the Respondent’s alleged predecessor in title, nether was there any testimony of a Witness to the alleged gifting of the land to Lawan Mohammed Gidado by Kabiru, which would have satisfied the requirement of customary transfer of land.

He relied on Nruamah v. Ebuzoeme (2013) All FWLR Pt681 ratio 5 and Matanmi v. Dada (2013) All FWLR Pt.682 page 638 ratio 3.

Counsel submitted that contrary to the findings of the learned trial Judge, the testimony of Kabiru Lamdo Hadeja the original owner of the land at trial, was not in favour of the Respondent’s claim as he denied all that was purportedly presented as his deposition on oath and insisted that the land belongs to the Appellant during cross-examination and the purported deposition on oath containing the Appellant’s oral testimony offends Section 119 of the Evidence Act, as it contained no illiterate jurat despite the fact that Kabiru Lamdo Hadeja was illiterate. ​ Learned counsel further argued that the Appellant on his own part at trial established his entitlement to the title over the land in dispute by virtue of Exhibit CC1, the sale agreement by which Kabiru Lamdo Hadeja sold the land in dispute to the Appellant, witnessed by the DW1 and that the fact that the Appellant farmed on the land in dispute for four years, from 2009-2012 and built on same in 2013 without interruption by the Respondent, establishes acts of possession which further supports his title to the land.

Learned counsel also argued that the fact that the Appellant has been in possession of the land from 2009, by virtue of the building erected thereon and farming activities carried out on the land, placed a duty on the Respondent to prove that the Appellant is not the owner of the land by virtue of Section 143 of the Evidence Act, a duty which the Respondent failed to discharge.

Counsel posited that even if the original owner of the land actually gifted the land to Gidado as alleged, the manner in which the transaction was concluded only transferred at best an equitable right which cannot prevail over the Appellant’s legal right and the undue delay on the Respondent’s part while the Appellant was in possession of the land meant the Respondent has been caught up by the legal principles of laches and acquiescence. He referred to the cases of Kano v. Maikaji (2013) All FWLR Pt 674 ratio 13 and Balogun v. Adunni (2013) All FWLR Pt 666 page 539 ratio 4.

On the other hand, learned counsel for the Respondent argued that the Respondent proved her entitlement to the land in dispute based on the uncontroverted testimony of four witnesses, including the original owner of the land himself, Kabiru Lamdo Hadeja as PW1, which testimonies painted a very clear picture of how the land passed from Kabiru to Lawan Mohammed Gidado as payment for survey, who in turn sold to Zuntua John, who sold to the Respondent.

He also argued that the documentary evidence of the Respondent at trial, that is sale agreement, customary certificate of occupancy, fencing permit from the Adamawa State Urban Planning & Development Authority and cash receipt evidencing payment for the fencing permit.

He asserted that the Respondent took possession of the land after the sale transaction by fixing corner beacons and subsequently fencing the property after obtaining fencing permit from the Adamawa State Urban Planning and Development Authority, Yola; and that the Respondent had resisted the attempts by one Police Officer in 2010 to claim the land, a matter which was settled before the ward head of Bachure where the land is situate. He relied on Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 151, Ngene v. Igbo (2000) 2 SCNJ 136, Ezeanah v. Attah (2004) 7 NWLR (Pt.873) 468, 501 and Godpower Orlu v.

Chief Godwin Onyeka (2007) All FWLR. Counsel posited that the evidence of the Appellant at trial was not sufficient to entitle him to a declaration of title over the disputed land, and his testimony was riddled with contradictions which made them unreliable, such as the DW1 who had claimed to have witnessed the transaction in his evidence in chief, turned around to state on cross-examination that he did not see Kabiru at the time of the transaction. He referred to the case of Okhuarobo v. Aigbe (2002) 3 SCNJ 111.

Counsel submitted that the documentary evidence of the Appellant at trial, Exhibits D and D1 is not genuine, not valid, not registered with any authority, which on the authority of Orianzi v.

AG Rivers State (2017) 6 NWLR at 283 paras D-F renders same invalid, not executed nor granted by Kabiru Lamdo Hadeja in respect of the land in dispute who lacked capacity to make such grant at the time the purported sale took place because Kabiru had prior to that time divested himself of his interest in the land and the witnesses to the purported sale did not witness the transaction as the date they signed, that is 28th and 29th May, 2009, predated the signature of Kabiru, who allegedly signed on 30th May, 2009, a signature which was irregular, as Kabiru signed as Ward Head, even though he was not the Ward’s Head.

He also submitted that the failure of the Appellant to call Kabiru as a Witness or join him as a party was fatal to the Appellant’s case, as the failure made it impossible to link the said Exhibits D and D1 to the original owner. He referred to the case of Odi v. Iyala (2004) SCNJ 35 at 54. Counsel in response to Appellant’s submissions asserted that the Respondent took possession of the land by building corner beacons, visiting the land from time to time and building a fence on the land.

He posited that the adoption of the statement on oath by Kabiru Lamdo Hadeja means the contents of said statement becomes his evidence in chief, which may be relied on by the Court despite certain irregularities in line with the authority of Udeagha v. Omegara (2010) 11 NWLR (Pt1204) P. 30 at P.168, and that illiterate jurat only protects the Illiterate where he complains, which Kabiru did not do at trial.

Counsel submitted that the issue of laches and acquiescence was wrongly raised by the Appellant as same was not specifically pleaded as required by law, and that even if properly raised would not succeed as the Respondent timeously reacted to the Appellant’s trespass by instituting an action for criminal trespass in 2013, the same year the cause of action arose. He referred to the case of Isaac v. Imasuen (2016) All FWLR (Pt823) at 1896 Ratio 3.

RESOLUTION OF ISSUE ONE It is settled beyond contention that a party who is claiming ownership of land or real property must adduce cogent and credible evidence to show how he is entitled to such land. In other words, he must satisfy the Court how he got title to the land or property in question and that such root of title is valid in law.

The Supreme Court in the case of DAKOLO & ORS v. REWANE-DAKOLO & ORS (2011) LPELR-915(SC) per RHODES-VIVOUR, J.S.C. (Pp. 23-24, paras. F-D) reiterated the five methods by which a Plaintiff may prove his entitlement to declaration of title to land thus: “There are five ways in which ownership/title to land may be proved. They are: 1. Proof of traditional evidence; 2.

Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilising the land beneficially such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner; 3. Proof by production of document of title which must be authenticated; 4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done; 5.

Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute. See Amajideogu v Ononaku (1988) 2 NWLR Pt.78 p.616,Piaro v Tenalo 1976 12 SC P.31, Idundun v. Okumagba (1976) 9 – 10 SC P. 224, Omoregie v. Idugiemwanye (1985) 2 NWLR Pt.5 P. 41.” See BAYO & ANOR v. SULYMAN & ORS (2019) LPELR-47380(CA), EKEZIE & ORS v. TASIE & ORS (2019) LPELR-46451(CA) and YAHAYA v. Haruna (2019) LPELR-47706(CA).

It is trite law that production of title documents is one of the methods of proving title to land. It is also clear that both parties at trial relied on production of title documents in proof of their claim. In the case of Oyeneyin v Akinkugbe [2010] 4 NWLR (Pt.1184), the Supreme Court stated the position of the law on how to establish title to land based on title document thus: ‘’Mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration.

The production of an instrument of title carries with it the need for the Court to look into a number of questions including – a. whether the document is genuine and valid; b. whether it has been duly executed, stamped and registered; c. whether the grantor had the authority and capacity to make the grant.’’ From the above, it is clear that mere presentation of title documents is not enough to establish title to land, but the law obligates the party presenting the documents to ensure that it fully complies with the requirements of law as to genuineness, due execution, registration and capacity on the part of the Vendor/Grantor, to establish its validity.

See Jolasun v Bamgoye [2010] 44 NSCQR 94 (SC) and Ahmed v. Ahmed & Ors (2018) LPELR-44710(CA). There is no gainsaying the fact that on the part of the Respondent, she had a valid document of sale and a customary certificate of occupancy over the said land.

She also went ahead to call the person, whom both parties and all witnesses agreed was the original owner of the land, who gave testimony which agrees with the Respondent’s version of events, which is that title to the land in dispute was transferred to Lawan Mohammed Gidado, by the original owner of the land: Kabiru Lamdo Hadeja, the consideration for said transfer being survey services rendered to the original owner, a practice which is not strange in our polity. The said Lawan then transferred ownership of the land to Zuntua John, who subsequently sold to the Respondent.

On the Appellant’s part however, the document of title he is relying on has certain issues with execution and witnessing, as the original owner who purportedly sold to the Appellant signed as Village Head, a position which he didn’t hold. More damaging to the Appellant`s case is the fact that the document of title, though registrable, was not registered, with the implication that the document is not admissible to prove title. See Abdullahi v Adetutu (2019) LPELR-47384 (SC), (Pp 20, Paras A-C), Obienu v. Okeke [2006] 16 NWLR (pt. 1005) 225 and Monkom v. Odili (2010) 2 NWLR (pt. 1179) 419.

The issue of illiterate jurat as pertains to the testimony of Kabiru Lamdo Hadeja the original owner of the land in dispute, will not avail the Appellant, because as rightly argued by Respondent’s counsel, once the statement of oath is adopted, it becomes the sworn oral testimony of the Witness who adopted same.

It is also correct to assert as done by the Respondent herein that it is only Kabiru Lamdo Hadeja for whose protection, the Illiterate Protection law made the provision for illiterate jurat, who can complain about non-compliance, especially in light of the fact that the purpose of illiterate jurat is to ensure Illiterates are not taken undue advantage of. See Alhaji Modu Musa & Anor v. Kaka Gana (Trader) (2021) LPELR-55156(CA).

Appellant’s submissions on possession are not very helpful to his case, because acts of possession over land over which valid title resides in another only helps to show trespass to said land. On the whole, the judgment of the lower Court stems from a proper application of relevant principles of law to the facts of the case before it. Thus, this issue is resolved in favour of the Respondent.

ISSUE TWO: WHETHER THE TRIAL COURT JUDGE WAS NOT IN ERROR TO HAVE ASSIGNED THIS MATTER TO HIMSELF, ASSUMED JURISDICTION, HEAR AND DETERMINE SAME WHEN THERE WAS SERIOUS PROTEST FROM THE DEFENDANT REGARDING THE FILING, ASSIGNMENT AND HEARING OF THIS MATTER BY VACATION JUDGE HAVING FALL OUTSIDE THE PURVIEW OF CASES THAT SHOULD BE HEARD DURING VACATION. (GROUND 2) Learned counsel for the Appellant submitted that the duty of a vacation Judge does not include the hearing of a fresh case that is not expedient to deal with; that there was nothing placed before the trial Court to justify the hearing of the matter which gave rise to this appeal during vacation, as the affidavit of urgency attached to the application for the matter to be so heard, did not contain any facts showing the need for the matter to be so heard and that the lower Court to have declined jurisdiction and transferred the case to the Chief Judge on the Appellant’s application to that effect.

He referred to the case of Okubre v. Ibanga (1990) 6 NWLR Pt 154 Ratio 13. On the other hand, learned counsel for the Respondent submitted that the trial Court was right when it assumed jurisdiction and heard the case at trial having regard to the affidavit of urgency placed before it by the Respondent, the determination of which is the discretion of the learned trial Judge and not based on the opinion of counsel. He relied on Order 8 Rule 5(1) & (2) of the Adamawa State High Court Civil Procedure Rules 2013 and CCB (Nig) Plc v. Okpala (1997) 3 NWLR (Pt.518) 677

RESOLUTION OF ISSUE TWO The procedure which the Appellant is complaining of under this issue, that is the hearing of a matter during vacation upon an affidavit of urgency is governed by the rules of the lower Court in Order 8 thereof. For purposes of clarity, the whole of Order 8 Rules 3, 4 and 5 of the Adamawa State High Court Civil Procedure Rules 2013 under which the matter was heard is herein reproduced thus: ‘’3.

The several offices of the Court shall be open at such times as the Chief Judge shall direct. 4. (1) The sitting of the Court for the dispatch of causes shall be held on every week-day except that the Court shall not sit: (a) on any public holiday; (b) during the week beginning with Easter Monday; (c) during the period beginning on Christmas Eve and ending on 2nd January next following. (2) There shall be an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the Gazette appoint. 5. (1) Notwithstanding the provisions of Rule 4, any action may be heard by a Judge in Court during any of the periods mentioned in Sub-rule (1) (b) or (c) of Rule 4 or Sub-rule (2) where the action is urgent. (2) An application for an urgent hearing shall be made by motion ex-parte and the decision of the judge on the application shall be final.’’ From the above, it is clear that the learned trial Judge was well within his jurisdiction to hear the matter during vacation upon the affidavit of urgency filed by the Respondent.

Whether or not to hear the matter is clearly a matter for the trial Court’s discretion and as the Appellant has not furnished any cogent reason why this Court ought to interfere with such exercise of discretion, then the decision must remain undisturbed in line with the settled position of the law to the effect that a proper exercise of discretion by a trial Court ought not be disturbed by an Appellate Court unless such discretion was not properly exercised and resulted in a miscarriage of justice. See Nwadiogbu v. Anambra Imo River Basin Devt Authority (2010) SCNJ 212 and Taiwo Kupolati v.

MTN Nigeria Communications Limited. This issue is also resolved in favour of the Respondent. ​ The implication of the resolution of the two issues against the appellant is that this appeal is devoid of merit and is consequently dismissed. The judgment of the lower Court delivered on 9th September, 2020 in Suit No. ADSY/112/2018 between Ramatu Manasa Daniel V. Amos Mbamu is hereby affirmed.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Jamilu Yammama Tukur JCA, where the facts and issues in contention have been set out. I am in agreement with the reasoning and conclusion therein, and adopt the judgment as mine. I have nothing extra to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the opportunity of reading the draft judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree entirely with his Lordship’s resolution and issues reached therein. The appeal is dismissed while the judgment of the lower Court is affirmed. I have nothing tangible to add.

Judgment

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Federal High Court, Lagos Judicial Division, delivered on the 2nd day of July 2021 in Suit No.: FHC/L/CS/1643/2020 – BETWEEN: MILAN INDUSTRIES LIMITED VS (1) POLARIS BANK LIMITED (2) ASSET MANAGEMENT CORPORATION OF NIGERIA (3) 11 PLC wherein the trial Court dismissed the Respondents/Cross Appellants’ Notice of Preliminary Objection (which challenged the jurisdiction of the Court to entertain the suit) and also the Appellant/Cross Respondent’s substantive suit.

Briefly, the facts of the case are that by an Originating Summons dated 11th day of November 2020 and filed on 20th day of November 2020, the Plaintiff/Appellant presented the following questions for the Court’s determination:- “(1) Whether having paid N2 Billion secured under the Deed of Legal Mortgage of 10th September 2010 the 1st Defendant can dispose of the mortgaged property and security of the plaintiff as a collateralized or secured non-performing loan or as an eligible bank asset. (2) If Issue 1 is answered in the negative, whether the 2nd Defendant can lawfully sell the mortgage property to the 3rd Defendant as an eligible bank asset acquired from the 1st Defendant. (3) Whether the 1st Defendant can recover an amount in excess of the N2 Billion secured and upstamped at the Corporate Affairs Commission”.

In anticipation of the questions above being answered in favour of the Plaintiff/Appellant, it sought the following reliefs:- “(a) A Declaration that the 1st Defendant cannot dispose of the secured debt and security of the plaintiff to the 2nd Defendant as an eligible bank asset. (b) A Declaration that the security of the plaintiff under the Deed of Legal Mortgage is void in relation to any amount in excess of the N2 Billion secured and upstamped. (c) An Order setting aside the sale of the Plaintiff’s mortgage property as an eligible bank asset to the 2nd Defendant. (d) An Order setting aside the sale of the mortgaged property (Intercontinental Hotel) by the 2nd Defendant as an eligible bank asset to the 3rd Defendant. (e) And for such further or other Orders as the Honourable Court may deem fit to make in the circumstances”. ​At the conclusion of the hearing, judgment was delivered in which the Respondents/Cross Appellants’ Notice of Preliminary Objection which challenged the jurisdiction of the trial Court to entertain the suit was dismissed.

Also, the Appellant/Cross Respondent’s Suit was dismissed. The Appellant and the Respondents who were dissatisfied with the judgment of the trial Court filed Notices of Appeal and Cross-Appeal respectively. The Learned Senior Counsel for the Appellant formulated a sole issue for the determination of the appeal. The sole issue is reproduced as follows:- “Whether from the state of the affidavit evidence the lower Court was right in holding that the evidence in support of the claim that the plaintiff repaid the sum secured was not credible” (Distilled from ground one of the Notice of Appeal).

On the other hand, the learned Counsel for the Respondents/Cross-Appellants also formulated a sole issue for the determination of the appeal. The issue is reproduced as follows:- “Whether the learned trial Judge was right when he held “in my view the evidence in support of the claim by the plaintiff that it has repaid the sum secured is not credible”. At the hearing of the appeal on 22/9/2022, the Learned Senior Counsel for the Appellant stated that the appeal is against the judgment of Federal High Court, Lagos Judicial Division delivered on 2/7/2021.

The Notice of Appeal was filed on 8/7/2021 while the record of appeal was transmitted to this Court on 14/7/2021. The Appellant’s brief of argument was filed on 23/8/2021. There is also Appellant’s reply brief containing Cross Respondent’s brief of argument which was filed on 25/5/2022. Learned Senior Counsel for the Appellant adopted and relied on the said Appellant’s brief as well as the Appellant’s reply brief containing Cross Respondent’s brief in urging that the appeal be allowed and the cross-appeal dismissed.

In his own case, the learned Counsel for the Respondents/Cross-Appellants referred to the Respondents/Cross-Appellants’ brief of argument filed on 15/12/2021. ​The Notice of Cross-Appeal was filed on 19/8/2021. There is also an additional record of appeal transmitted on 13/12/2021 and deemed as properly transmitted on 31/5/2022. The learned Counsel for the Respondents/Cross-Appellants referred to the Cross-Appellants’ reply brief filed on 14/6/2022.

He adopted and relied on – (1) Respondents/Cross Appellants’ brief and (2) Cross Appellants’ reply brief as his argument in urging that the main appeal be dismissed and the cross-appeal allowed. I have gone through the issues formulated for the determination of the appeal by Counsel for both parties. The issues are like half a dozen and six ie., more or less the same. I will therefore rely on the issue formulated for the determination of the appeal on behalf of the Appellant.

ISSUE FOR THE DETERMINATION OF THE APPEAL “Whether from the state of the affidavit evidence the lower Court was right in holding that the evidence in support of the claim that the plaintiff repaid the sum secured was not credible”. (Distilled from ground one of the Notice of Appeal). The learned Senior Counsel for the Appellant in his submission argued that apart from the statement of account exhibited in support of the N2 billion secured, the Respondents never denied that the N2 billion secured was repaid and that uncontroverted facts are deemed admitted.

He relied on the affidavit in support of the Originating Summons to support the contention that as at 3/8/2015 the Appellant had repaid N2.135 billion to discharge the N2 billion secured. It was also contended that the Respondents did not positively deny the deposition in paragraphs (13) and (14) of the affidavit in support of the Originating Summons. He relied on the following cases:- – OLA VS. UNILORIN (2014) LPELR – 2278 (CA). – TILLEY GYADO LTD. & CO. NIGERIA LIMITED VS. ACCESS BANK (2019) LPELR – 4708 (CA). – CGB NIGERIA PLC VS. OZOBU (1993) 3 NWLR PART 541 PAGE 290 AT 310 – 311.

The learned Counsel for the Appellant admitted that as at 3/8/2015 the Plaintiff/Appellant had not repaid all the facilities of about N15 Billion principal availed it by the 1st Defendant/Respondent. But that the 1st Defendant/Respondent registered the charge for the sum of N2 Billion.

He relied on – SECTION 227 OF THE COMPANIES AND ALLIED MATTERS ACT 2020 (CAMA). ​It was also contended on behalf of the Appellant that Exhibits M4 and M5 were prepared by 1st Defendant/Respondent who did not challenge the authenticity of the accounts although duplicated but that it proved the repayment of N2 Billion. Learned Senior Counsel for the Appellant submitted that the trial Court should have given credence to the statements of account as proof of the repayment of the N2 Billion in issue.

He went further in his submission that it is the primary duty of the trial Court to evaluate and ascribe probative value to evidence led and where the trial Court fails to properly perform its duty, the appellate Court has a duty to intervene and evaluate the evidence especially where the evaluation does not involve the credibility of witnesses and their demeanor. He relied on the following cases:- – ANOLIEFO VS. ANOLIEFO (2019) LPELR – 47247 (CA). – IHUA-MADUENYI VS. ROBINSON (2019) LPELR – 47252 (CA).

He concluded his argument that if Exhibits M4 and M5 which were not challenged had been evaluated properly by the lower Court, it would have come to the conclusion that the sum of N2 Billion secured had been liquidated. ​He urged this Court to hold that the lower Court was wrong in holding that there was no credible evidence that the Appellant repaid the N2 Billion secured. He urged that this appeal be allowed, set aside the judgment of the lower Court and grant the reliefs claimed in the Originating Summons.

In his response, the Learned Counsel for the Respondents contended that the case of the Appellant is built on the statement that the loan facility obtained from the 1st Respondent which was secured by a Deed of Legal Mortgage and up-stamped and registered at Corporate Affairs Commission for the sum of N2 Billion has been repaid. And consequently, the issue before the trial Judge was – “Whether from the evidence before the Court, the Appellant had repaid the loan it took from the 1st Respondent”.

Learned Counsel for the Respondents stated that in proof of the repayment, the Appellant exhibited Exhibits M4 which is on a dollar account of four pages, but only pages 1 and 2 were exhibited and repeated 5 times. He referred to pages 32 – 42 of the Record of Appeal. ​The second proof of the payment was Exhibit M5 which he stated in a Naira account – 15 pages but that only pages 1, 2, 3, 9 and 14 were exhibited and repeated 5 times. He referred to pages 45 – 70 of the Record of Appeal.

It was submitted on behalf of the Respondents that the purported proofs of payments exhibited by the Appellant have no dates when payments were made and how much was paid on each date. On the definition of credible evidence, he relied on the case of:- AGBI VS. OGBEH (2006) 11 NWLR PART 990 PAGE 65. He referred to paragraph 17 of the Counter Affidavit which he contended denied the payment of the N2 Billion. He relied on the following cases – – CAN VS. LAMIDO (2012) 8 NWLR PART 1303 PAGE 560. – BILANTE INTERNATIONAL LTD. VS. NDIC (2011) ALL FWLR PART 598 PAGE 804. – JOHN OREKIE ANYAKO VS.

AFRICAN CONTINENTAL BANK LTD. (1976) 2 S.C. PAGE 41. – WEMA BANK VS. OSILARU (2008) 10 NWLR PART 1094 PAGE 150 AT 180 PARAGRAPH B. – B.E.G.H. LTD. VS. H.S.&L. LTD. (2011) 7 NWLR PART 1246 PAGE 286 PARAGRAPHS E-F. ​It was further submitted on behalf of the Respondents that the statement of the Appellant with respect to the payment of N2 Billion is speculative and Courts are enjoined not to grant speculative claims. He relied on the case of – U.T.B. NIG. VS. OZOEMENA (2007) 3 NWLR PART 1022 PAGE 448 AT 487 PARAGRAPH C.

Learned Counsel therefore urged this Court to resolve this issue in favour of the Respondents and uphold the judgment of the lower Court. It was also submitted on behalf of the Respondents that the Appellant is basically relying on the alleged weakness of the defence in asking for judgment in its favour. But that the law is settled that a Plaintiff in a case must succeed on the strength of his own case and not on the weakness of the defence. The following cases were relied upon:- – ONUKOGU VS. ONUIGBO & OTHERS (2015) LPELR – 24574. – WOLUCHEM VS. GUDI (1981) 5 SC PAGE 294. – AKINOLA VS.

OLUWO (1962) 1 ALL NLR PAGE 224. – KODILINYE VS. ODU (1935) 2 WACA PAGE 236. ​The learned Counsel for the Respondents submitted that the Appellant ought to lead credible evidence to support its case. He relied on the following cases:- – HUSSEINI & ANOTHER VS. MOHAMMED & OTHERS (2005) LPELR – 7520 (CA). – OKONKWO VS. F.R.N. (2011) 11 NWLR PART 1258 PAGE 215. – OGOEJEOFO VS. OGOEJEOFO (2006) 2 NWLR PART 966 PAGE 205.

He finally urged that this appeal be dismissed. In the Appellant’s reply brief on points of law, the Learned Senior Counsel for the Appellant submitted that the statement of account on pages 45 to 47 of the record of appeal shows the date and amounts paid to liquidate the N2 Billion secured contrary to the argument of the Respondent’s that the date of payment and the amount paid was not stated.

In conclusion, learned Senior Counsel for the Appellant urged this Court to hold that the Naira statement of account pages 45 – 47 of the Record of Appeal prepared by the 1st Respondent which was not disowned or controverted is an admission of the repayment of the N2 Billion secured in Exhibit M2. RESOLUTION The sole issue in this appeal is:- “Whether from the state of the affidavit evidence the lower Court was right in holding that the evidence in support of the claim that the Plaintiff repaid the sum secured was not credible”. (Distilled from Ground One of the Notice of Appeal).

The claim of the Appellant at the trial Court was set out earlier in this judgment. It would be necessary at this juncture to reproduce relevant paragraphs of the affidavit in support of the Originating Summons as well as the relevant paragraphs of the Counter Affidavit filed on behalf of the Respondents in order to have a clear understanding of the issue in dispute. The Originating Summons is supported by a 24 paragraph affidavit, relevant paragraphs are 3 to 23 reproduced as follows: – “3.

That the Plaintiff is a company incorporated under the Laws of the Federal Republic of Nigeria with a temporary office at Plot G2 Iganmu Avenue Lagos. 4. That the 1st Defendant is a financial institution formerly known as Skye Bank Plc and is duly registered to carry on the business of banking. 5. That the 2nd Defendant is a creation of statue and one of their function is to acquire eligible bank assets of banks and have allegedly acquired the asset in dispute from the 1st Defendant. 6.

That the 3rd Defendant is a company registered under the laws of the Federal Republic of Nigeria and has acquired the asset forming the subject matter of the dispute through a subsidiary company unknown to the Plaintiff. 7. That by virtue of the banking relationship between the Plaintiff and the 1st Defendant various banking facilities were availed to the Plaintiff. 8.

That a Deed of Legal Mortgage dated 10th September 2010 was executed by the Plaintiff in favour of the 1st Defendant for the various sums of money and the property of the Plaintiff at Plots 244 and 245 (now 52/54) Kofo Abayomi Street, Victoria Island, Lagos comprising of the 361 room five-star Intercontinental Hotel was the security for the N2 Billion secured under the Legal Mortgage. Attached as Exhibit M1, is a copy of the Legal Mortgage. 9. That the sum acknowledged, secured and stamped on the Legal Mortgage is N2 Billion Naira. 10.

That the Deed of Legal Mortgage was registered with the Corporate Affairs Commission and was up-stamped and a Certificate of Registration Exhibit M2 issued as evidence of the amount secured. 11. That the security under the Legal Mortgage was to secure the repayment of the amount stated under the Legal Mortgage, and any other amount as may be up stamped. 12. That by the letter dated 30th of November 2018 the 2nd Defendant notified the Plaintiff that they have taken over their indebtedness from the 1st Defendant. Attached as Exhibit M3 is a copy of the letter of the 2nd Defendant. 13.

That as at 3rd of August 2015 the Plaintiff had already repaid the N2.135 Billion Naira to discharge the secured, acknowledged and up-stamped amount in the Deed of Legal Mortgage and Certificate of Registration, Exhibit M2. 14. That between 14th March 2014 and 5th December 2016 the Plaintiff repaid the 1st Defendant N2,485,000.00 and USD3,440,000.00. 15. That the repayments made to the 1st Defendant is captured in the Bank Statement of the Plaintiff Exhibit M4 (USD ACCOUNT) & EXHIBIT MS (NGN ACCOUNT). 16.

That I was informed by Bikram Sharma the financial controller of the Plaintiff on the 24th of December 2019 at noon in our office and I verily believe him to be true that; (a) He received Exhibits M4 and M5 from the 1st Defendant via 2 emails, Exhibits M4(A) and M5(A). (b) The 2 emails M4(A) & M5(A) which has attached to them Exhibits M4 and M5 emanated from his computer HP Pro 200 All-In One desktop and HP printer PSC 1410. (c) The 2 emails Exhibits M4(A) & M5(A) and Exhibits M4 & M5 were produced from his desktop and printer during a period over which all the devices were used regularly to store and process information for activities carried out regularly. (d) Over the period of time, the Desktop and printer were regularly used by him in the ordinary course of his activities and the devices properly operating throughout the time the information in Exhibits M4, M5, M4(A) & M5(A) was gathered. (e) Exhibits M4, M5, M4(A) & MS(A) are true and accurate representations of what was produced from his computer and printer and sent to the Plaintiff by the Defendant. 17.

That at the time the 2nd Defendant entered into the agreement to purchase the Plaintiff’s secured debt/security there was no collateralized and secured loan to dispose of as a non-performing eligible bank asset because the amount secured under the Deed of Legal Mortgage had been repaid. 18. That the security of the plaintiff is void in relation to any amount in excess of the amount secured under the Deed of Legal Mortgage. 19.

That the 3rd Defendant in a press release on the 23rd of December 2010 announced to the general public that they have acquired the Plaintiff’s Intercontinental Hotel from the 2nd Defendant through one of their unnamed subsidiary. 20. That by a letter dated 19th November 2019, Exhibit M6, the Plaintiff informed the 1st and 2nd Defendants of the liquidation of the amount secured and demanded for the discharge of the security. 21.

That at the time the 2nd Defendant sold the Plaintiff’s asset (Intercontinental Hotel) to the unnamed subsidiary of the 3rd Defendant the Plaintiff had discharged its obligation under the Legal Mortgage by paying the amount secured. 22. The asset/security of the Plaintiff under the Deed of Legal Mortgage was not validly vested in the 2nd Defendant. 23.

The 2nd Defendant cannot sell to the 3rd Defendant or any other person an asset not validly acquired as an eligible.” There is also a Counter Affidavit of 31 paragraphs pertinent, paragraphs of which are 5 to 29 reproduced as follows:- “(5) Contrary to the deposition in paragraphs 8, 9, and 10 of the affidavit in support of the Originating Summons and for ease of understanding of the real facts in issue, I know as follows: a) That by virtue of the banking relationship between the Plaintiff herein and the 1st Defendant, the Plaintiff was availed US.

Dollars and Naira Facilities respectively in the sum of US$29.8M {Twenty Nine Million, Eight Hundred Thousand U.S Dollars} and N3.8Billion {Three Billion, Eight Hundred Million Naira} for the construction of the Intercontinental Hotel {now Lagos Continental Hotel}. b) That in addition to my deposition above, due to various changes in the construction project, the Plaintiff applied for and was availed additional facilities by the 1st Defendant towards the construction of the said Hotel. c) Attached and marked as Exhibit 1 (a) to (e) are facility letters {among others} dated 14th May, 2007;

4th February, 2010; 6th April, 2010; 16th February, 2011 and 14th June, 2012 respectively duly accepted by the Plaintiff herein, evincing the availment of various facilities to the Plaintiff by the 1st Defendant. d) Also attached and marked Exhibit 2 {a} to {f} are letters dated 7th April, 2010; 12th August, 2010; 9th December, 2010. 9th December, 2010;

18th February, 2011 and 8th June, 2012 respectively from the Plaintiff herein, applying for additional facilities as aforementioned deposed. e) That in addition to the U.S Dollar and Naira Term Loan availed the Plaintiff towards the construction of the Hotel, the 1st Defendant also availed the Plaintiff an Over Draft Facility in the sum of N500million {Five Hundred Million Naira} “to urgently fund payments to contractors and importation of material required for completing the hotel project”.

Attached herein and marked ‘Exhibit 3’ is {among others} duly accepted offer letter dated 9th December, 2010 buttressing the fact herein. f) That the purpose of the availed facilities was to finance the 361 rooms, five star Intercontinental Hotel {now Lagos Continental Hotel} situate at Plot 244 & 245 {now described as 52} Kofo Abayomi Street, Victoria Island, Lagos. g) I know that from the various offer letters {the foundation of the suit}, the security for the advancement of the various facilities is a Legal Mortgage on the land and the building of the Lagos Continental Hotel. h) Further to my deposition above, I know that the Plaintiff herein executed a Deed of Legal Mortgage in favour of the 1st Defendant dated 10th September, 2010 wherein it covenanted to pay the 1st Defendant all sums due and discharge all liabilities under the Deed of Legal Mortgage. i) I also know that as a continuing security for the sum availed, the 1st Defendant charged its property known and situate at Plot 244 & 245 {now 52}, Kofo Abayomi Street, Victoria Island, Lagos which comprises of the 361 rooms five star Lagos Continental Hotel.

Copy of the duly perfected Legal Mortgage is hereby attached and marked “Exhibit4”. j) I also know that in addition to registering the Legal Mortgage, the instrument was also perfected and/or registered at the Corporate Affairs Commission, in favour of the 1st Defendant herein and same was variously up- Stamped. k) That at the expiration of the tenure of the various facilities extended by the 1st Defendant, the Plaintiff failed and/or neglected to liquidate the various facilities and same continues to accrue interest in line with the practice in the 1st Defendant’s industry. l) Further to my deposition above, upon the failure of the Plaintiff to liquidate the facilities as mutually covenanted, attached herein as Exhibit 5{a} to {d} are {among others} correspondence/demand letters authored by the 1st Defendant to the Plaintiff on its outstanding indebtedness. m) I know that the Plaintiff has variously admitted/acknowledged its indebtedness to the 1st Defendant.

Attached herein and marked Exhibit 6 {a} to {f} are correspondence dated 8th December, 2015; 23rd March, 2016; 20th June, 2016; 19th July, 2016; 16th September, 2016 and 29th November, 2016 respectively authored by the Plaintiff herein, duly admitting/ acknowledging its huge indebtedness to the 1st Defendant. n) That in spite of the receipt of several letters of demand, the Plaintiff refused to liquidate its over-due outstanding indebtedness to the 1st Defendant herein, notwithstanding the fact that the Hotel financed by the 1st Defendant has since been completed, same has been carrying on business. o) That in view of the huge indebtedness of the Plaintiff, the 1st Defendant was left with no other option than to exercise the powers vested in it by virtue of Clause 6.05 of the Deed of Legal Mortgage executed by the Plaintiff and the 1st Defendant herein which the appointment of a Receiver/Manager is predicated upon. p) The 1st Defendant in exercising its right as stated in the Deed of Legal Mortgage appointed a Receiver/Manager over the secured asset of the Plaintiff.

The Deed of Appointment of the said Receiver/Manager is hereby attached and marked ‘Exhibit 7’ while the certificate of registration of the Deed of appointment with the Corporate Affairs Commission, Abuja is also attached and marked ‘Exhibit 8’. 6. I also know that upon appointment of the Receiver/Manager, the Plaintiff at different times authored several correspondences to the 1st Defendant admitting its indebtedness to the Plaintiff and its attempts to settle same out of Court. Attached and marked as ‘Exhibit 9’ are copies of the correspondence evincing this assertion. 7.

Further to the above and in a bid to resolve the Plaintiff’s chronic indebtedness, the Plaintiff and the 1st Defendant herein jointly appointed the auditing firm of Ernest and Young to reconcile the accounts and the indebtedness of the Plaintiff. Attached and marked as “Exhibit 10” is a copy of the Report from the Auditing Firm showing clearly that the Plaintiff is hugely indebted to the 1st Defendant. 8.

Contrary to paragraphs 8 and 9 of the affidavit in support of the Originating Summons, the Plaintiff by the Deed of Legal Mortgage covenanted to pay on demand to the 1st Defendant all moneys and discharge all obligations and liabilities incurred to the 1st Defendant by the Plaintiff in whatever currency denominated. 9.

Further to the above, I know that the Plaintiff charged all its assets as described in the schedule to the Deed of Legal Mortgage {Plot 244 & 24S} Kofo Abayomi Street, Victoria Island, Lagos as a continuing security for the payment of sums owed and discharge of all liabilities under the Deed of Legal Mortgage. 10. That in addition to paragraph 10 of the supporting affidavit, I know that the Plaintiff failed and/or neglected to register the Deed of Legal Mortgage at the Corporate and Affairs Commission, necessitating the 1st Defendant to register same. 11.

Contrary to the deposition in paragraph 11 of the Affidavit in support of the Originating Summons, the Deed of Legal Mortgage was created to secure the entire sum {as clearly covenanted in the various facility letters duly executed the parties} owed the 1st Defendant by the Plaintiff. 12. In response to paragraph 12 of the Affidavit in support of the Originating Summons, I know that the 2nd Defendant by virtue of its power under the AMCON Act purchased the indebtedness of the Plaintiff from the 1st Defendant. 13.

Contrary to ‘the depositions in paragraphs 13, 14 and 15 of the Affidavit in support of the Originating Summons, I know that the Plaintiff was availed various facilities to wit; Project Finance Facility in Naira and Dollar and Over draft. 14.

That the facilities availed the Plaintiff is one that attracts interest in line with common practice in the 1st Defendant’s industry and the attached statement of accounts did not state whether the alleged payment of N2,485,000.00 and USD3,440,000.00 as deposed to in paragraph 14 of the supporting affidavit was for the payment principal sum or accrued interest thereto and how the total sum was arrived at. 15.

That as at 3rd August, 2015 the Plaintiff had not repaid all the facilities of about N15,000,000,000 {Fifteen Billion Naira Only} Principal sum availed it by the 1st Defendant as duly covenanted in the facility letters and the Deed of Legal Mortgage. 16. Without prejudice to the foregoing, I also know that the alleged sum paid as at 5th December, 2016 was paid from the repayment source of the loan and not upon activation of the Deed of Legal Mortgage, when the security for the loan was taken over by the Receiver/Manager in 2017. 17.

That upon the activation of the security under the Deed of Legal Mortgage as covenanted in the various offer letters in 2017, the sum of N2Biliion has not been paid by the Plaintiff in liquidating its huge indebtedness to the 1st Defendant to justify the Plaintiff’s claim herein. 18. Further to the above, I know that the Deed of Legal Mortgage executed by the Plaintiff and the 1st Defendant does not secure the Plaintiff’s debt only to the sum of 2 Billion; same was created to secure the “last dime” owed by the Plaintiff. 19.

That by the Deed of Legal Mortgage, the payment of 2 Billion by the Plaintiff does not discharge the Plaintiff of its liabilities or entitle the Plaintiff to redemption of the mortgaged asset. 20. I also know contrary to paragraph 13 of the affidavit in support of the Originating Summons that the purpose of stamp duty is merely to enable the government raise revenue, same is not to determine the amount to be recovered under the instrument so up-stamped. 21.

I also know as a Legal Practitioner that where an instrument is not properly up-stamped, this Honourable Court has the power to order that the instrument be fully stamped to cover the entire sum. 22. Further to the above, I also know as a Legal Practitioner that under the relevant laws, the Plaintiff has the duty to up-stamp the Deed of Legal Mortgage securing a charge on its property. 23.

Contrary to the deposition in paragraph 18 of the Affidavit in support of the Originating Summons, the 2nd Defendant purchased a collateralized and secured loan from the 1st Defendant as’ the Deed of Legal Mortgage was created to secure the entire sum owed by the Plaintiff to the 1st Defendant. 24. Without prejudice to the above, I also know that under the guidelines on the Operation of the Asset Management Corporation of Nigeria 2010, the 2nd Defendant has the power to purchase both secured and unsecured non-performing loan of a Bank and dispose same as an eligible bank asset. 25.

Contrary to the deposition in paragraph 18 of the Affidavit in support of the Originating Summons, the security of the Plaintiff under the Deed of Legal Mortgage is valid for the total sum owed by the Plaintiff to the 1st Defendant and same is to be utilized in recovering the total indebtedness of the Plaintiff in the event of failure to adequately repay same as duly covenanted in the offer letters and under the Deed of Legal Mortgage. 26.

That in response to the Plaintiff’s correspondence of 19th November, 2019, the Defendants’ Solicitors authored a correspondence dated 20th November 2019 wherein the Plaintiff was duly informed that its demand for a deed of release is highly misconceived as the Deed of Legal Mortgage was created to secure the entire sum owed the 1st Defendant. The said correspondence is herewith attached and marked “Exhibit 11”. 27.

That contrary to the depositions in paragraphs 21 and 22 of the affidavit in support of the Originating Summons, the Plaintiff failed and/or neglected to discharge its obligations under the Deed of Legal Mortgage. It failed to repay sums availed it via the different offer letters as duly covenanted. 28. That Contrary to the depositions in paragraphs 22 and 23 of the Plaintiff’s Affidavit, the 2nd Defendant validly purchased the loan from the 1st Defendant, same being an eligible bank asset and it consequently has the power to dispose same to a third party. 29.

Further to the above, I also know that the stamp duty paid is to be applied on “reducing balances” and the Deed of Legal Mortgage shall continue to remain force and effective so long as there is an attachable outstanding indebtedness thereto.” In this appeal, the Appellant was availed various facilities by the 1st Respondent and the Deed of Legal Mortgage was registered at the Corporate Affairs Commission in accordance with the Provision of Section 223(3) of Companies and Allied Matters Act and Certificate of Registration issued as evidence of the amount secured.

It is not in dispute that the 1st Respondent availed the Appellant several billions of Naira but for reason best known to the 1st Respondent only N2 Billion was registered against the charge as evidenced by the Certificate of Registration Exhibit M2. ​As could be gleaned from the affidavit in support of the Originating Summons, the Appellant deposed to the fact that as at 3/8/2015 it had repaid N2.135 Billion to discharge the N2 Billion secured and upstamped. It stated further that between 14/3/2014 and 5/12/2016 the sum of N2,485,000,000.00 and USD3,440,000.00 was repaid.

It exhibited Exhibit M4 and M5 in proof of the repayment. Although the Respondents denied it in the Counter Affidavit that the sum of N2 Billion has not been paid by the Plaintiff/Appellant in liquidating its indebtedness to the 1st Defendant/Respondent to justify the Plaintiff’s claim. But as could be seen from the affidavit in support of the Originating Summons, the repayment made to the 1st Defendant/Respondent was captured in the Bank Statement of the Plaintiff/Appellant ie., Exhibit M4 (USD Account) and Exhibit M5 (Naira Account).

The statement of account on pages 45 – 47 of the Record of Appeal showed that the Appellant has repaid the N2 Billion secured in the manner detailed as follows:- “14/3/14 – principal liquidated – N366,000,000.00 15/4/14 – principal liquidated – N250,000,000.00 3/4/14 – principal liquidated – N629,444,154.00 1/7/14 – principal liquidated – N100,000,000.00 13/8/14 – principal liquidated – N250,000,000.00 17/10/14 – principal liquidated – N200,000,000.00 20/10/14 – principal liquidated – N50,000,000.00 27/10/14 – principal liquidated – N70,000,000.00 18/12/14 – principal liquidated – N100,000,000.00 06/1/15 – principal liquidated – N100,000,000.00 17/2/15 – principal liquidated – N200,000,000.00 01/7/15 – principal liquidated – N95,000,000.00 03/8/15 – principal liquidated – N70,000,000.00 4/8/15 – principal liquidated – N50,000,000.00 7/9/15 – principal liquidated – N297,797,471.50 15/9/15 – principal liquidated – N50,000,000.00 21/10/15 – principal liquidated – N50,000,000.00 23/11/15 – principal liquidated – N100,000,000.00 2/12/15 – principal liquidated – N236,000,000.00” A careful examination of the statement of account set out above would reveal that the Appellant even paid more than N2 Billion.

Although the Respondents claimed in the Counter Affidavit that the N2 Billion which the Appellant claimed to have paid has not been liquidated but with the deposition of the Respondent in paragraph 16 of the Counter Affidavit on page 115 of the Record of Appeal which stated that the alleged sum paid as at 5/12/2016 was paid from the repayment source of the loan and not upon the activation of the Deed of Legal Mortgage, is an admission of the facts deposed to in the Affidavit in support of the Originating Summons that the N2 Billion has been liquidated.

The issue before the trial Court was not whether the Appellant had repaid all the facilities availed and standing at N15 Billion, the issue in dispute was whether the Appellant had repaid the N2 Billion secured. For reason best known to the 1st Respondent, it registered the charge under consideration for N2 Billion when it could have registered it for the maximum amount availed, including the accrued interest.

Under SECTION 227 OF THE COMPANIES AND ALLIED MATTERS ACT 2020 – where a charge particulars of which registration under Section 222 is expressed to secure all sums due or to become due or some other uncertain or fluctuating amount, the particulars under Section 222(9) shall state the maximum sum deemed to be secured by such charge (being the maximum sum covered by the stamp duty paid therein) and such charge shall be void, so far as any security on the company’s property is thereby conferred, as respect any excess over the stated maximum”.

In this case, the maximum amount secured was N2 Billion and the 1st Respondent cannot use the property charged to liquidate any amount in excess of the maximum amount secured and where the maximum amount secured is paid the security is discharged. The excess amount not secured is an unsecured debt which can only be recovered through a debt action and not by enforcement of the charge. In this matter, the maximum amount secured in the sum of N2 Billion has been repaid to discharge the security.

As I said earlier, the Respondent cannot enforce the charge for any amount in excess of the N2 Billion registered against the charge.

The law regulating enforcement of charges is regulated by SECTION 222(1) AND SECTION 223(1) & (2) AND SECTION 227 OF THE COMPANIES AND ALLIED MATTERS ACT 2020. ​In my humble view, the law regulating enforcement of charges does not permit the 1st Respondent to recover any sum of money in excess of the amount secured and where the amount secured has been repaid the security is discharged and the excess amount is treated as an unsecured debt to be recovered through a debt action.

Furthermore, it is important to note that the statements of account Exhibits M4 and M5 were prepared by the 1st Respondent who did not challenge the authenticity of the duplicated account which proved the repayment of the N2 Billion. Therefore the trial Court should have given credence to the statements of account although duplicated but contained the same information in proof of the N2 Billion repaid. The extract of the statement of account of the Appellant was earlier set out in this judgment.

The affidavit in support of the Originating Summons showed that between 14/3/2014 and 5/12/2016 the Appellant repaid the 1st Respondent N2,485,000.00 and USD3,440,000.00.

The extract pages of the statement of account exhibited contain relevant transaction dates and details to establish repayment by the Appellant therefore the trial Court was wrong when it held that the Appellant did not state the dates of payment and amount paid. ​It is trite law that it is the primary duty of the trial Court to evaluate and ascribe probative value to the evidence led but where the trial Court fails to properly perform its duty, the appellate Court has a duty to intervene and evaluate the evidence, especially where the evaluation does not involve the credibility of witnesses and their demeanor.

See S.S. GMBH VS. DOSUNMU INDUSTRIES LTD. (2010) 11 NWLR PART 1206 PAGE 589. Exhibits M4 and M5 presented in support of the repayment of the sum of over N2 Billion is in my view admissible, credible and relevant. Moreso, the veracity of the Exhibits was not challenged by the 1st Respondent who prepared the statement of account. Furthermore, a customer who is claiming to have liquidated his indebtedness only needs to tender the statement of account prepared by the bank showing the liquidation of the debt.

Consequent upon the foregoing, I am in the view that the Appellant having paid the N2 Billion secured under Deed of Legal Mortgage of 10/9/2010 the 1st Defendant/Respondent cannot dispose of the mortgaged property and security of the Appellant as a collateralized or secured non-performing loan or as an eligible bank asset. In other words, there was no eligible bank asset to acquire by the 2nd Respondent. ​In the circumstance, the 2nd Respondent cannot lawfully sell the mortgaged property to the 3rd Respondent as an eligible bank asset acquired from the 1st Respondent.

The sole issue for determination in this appeal is therefore resolved in favour of the Appellant and against the Respondents. There is merit in this appeal and it is allowed.

In the result, the judgment of the trial Court in SUIT NO.:FHC/L/CS/1643/2020 – MILAN INDUSTRIES LIMITED VS (1) POLARIS BANK LIMITED (2) ASSET MANAGEMENT CORPORATION OF NIGERIA (3) 11 PLC DELIVERED ON 2ND DAY OF JULY 2021 is hereby set aside. ​In its place the following declarations are hereby made:- (a) A declaration that the 1st Defendant/Respondent cannot dispose of the secured debt and security of the Plaintiff/Appellant to the 2nd Defendant/Respondent as an eligible bank asset. (b) A declaration that the security of the Plaintiff/Appellant under the Deed of Legal Mortgage is void in relation to any amount in excess of the N2 Billion secured and up-stamped. (c) It is hereby ordered that the sale of the Plaintiff’s mortgage property as an eligible bank asset to the 2nd Defendant/Respondent is hereby set aside. (d) It is also ordered that the sale of the Mortgage Property (Intercontinental Hotel) by the 2nd Defendant/Respondent as an eligible bank asset to the 3rd Defendant/Respondent is hereby set aside.

The Appellant is entitled to cost which is fixed at N300,000.00 (Three Hundred Thousand Naira) against the Respondents jointly and severally. Appeal allowed. CROSS APPEAL This Cross Appeal emanated from part of the judgment of the trial Court delivered on 2/7/2021 which dismissed the Notice of Preliminary Objection of the Respondents/Cross-Appellants and the trial Court assumed jurisdiction to entertain the Appellant/Cross Respondent’s substantive suit. The learned Counsel for the Cross-Appellants filed a Notice of Cross-Appeal on 19/8/2021.

He went further to file the Cross Appellants’ brief of argument on 15/12/2021 and also the Cross Appellant’s Reply brief of argument.

The following issues were distilled for determination: “(1) Whether the Learned trial Judge erred in law when he overruled the Cross Appellants’ Preliminary Objection challenging its jurisdiction to hear the suit and consequently proceed with the determination of the Cross Respondent’s suit (Distilled from Ground 3 of the Notice of Cross-Appeal). (2) Whether the Court below was legally mandated to properly determine all the issues submitted to it by the Cross-Appellants and to consequently reiterate the dismissal of the Cross-Respondent’s suit on the vital points/issues submitted by the Cross-Appellants in their processes before the Honourable Court (Distilled from Grounds 1 and 2 of the Notice of Cross-Appeal)”.

The learned Counsel for the Cross Respondent filed his brief and adopted the issues formulated for determination of the appeal on behalf of the Cross-Appellants and argued the issues. ISSUE NO. 1 The learned Counsel for the Cross-Appellants referred to the Notice of Preliminary Objection to the jurisdiction of the trial Court to entertain and adjudicate on the Cross Respondents’ suit.

He stated the grounds of the objection as follows:- “- The Cross Respondent had filed an earlier suit against the same parties in the instant suit, claiming the same reliefs against them on the same subject matter, the said earlier suit was dismissed {upon being withdrawn after parties had joined issues} by the Honourable Court Coram Aikawa J. – The Cross Respondent’s suit amount to an abuse of Court process, in view of several other suits pending between the parties, on the same subject matter. – The filing of the instant suit while suit no. FHC/L/CS/255/18 and suit No.

FHC/L/CS/463/2018 are still pending before the Court of Appeal and the Federal High Court constitutes a serious/grievous abuse of Court process. – The 2nd Cross-Appellant is a statutory Corporation that requires the issuance of pre-action notice before the action could be commenced against it, no such pre-action notice was issued and/or served on it before the filing of the said suit. – By the provision of Section 33A of the Asset Management Corporation of Nigeria {Amendment} Act 2019, the Cross Respondent {Plaintiff} is legally barred from maintaining the action herein against the 2nd Cross-Appellant on the grounds of the 2nd Cross Appellant’s acquisition of the assets of the Cross Respondent from the 1st Cross-Appellant.“. ​Learned Counsel for the Cross-Appellants stated that in a judgment delivered on 2nd day of July 2021, the trial Court dismissed the Cross Appellants’ Preliminary Objection and consequently assumed jurisdiction to entertain the Cross Respondent’s suit.

ON THE ISSUE OF THE DISMISSAL OF THE CROSS RESPONDENT’S EARLIER SUIT FILED AGAINST THE CROSS APPELLANTS ON THE SAME SUBJECT MATTER The learned Counsel for the Cross-Appellants referred to an action which was filed earlier through Originating Summons in Suit No. FHC/L/CS/2411/2019 which was before R. M. Aikawa J. at the Federal High Court Lagos Division. It was contended that after issues had been joined by the parties in the said Suit No. FHC/L/CS/2411/2019, the Cross Respondent applied to the trial Court for leave to withdraw the suit against the Cross-Appellants.

And after considering the argument of Counsel for the parties, the trial Court dismissed the Cross Respondent’s suit. Learned Counsel for the Cross-Appellants relied on the case of MAKUN & OTHERS VS. FUTMINNA & OTHERS (2011) LPELR – 15514 (SC) where it was held that an order of dismissal operates as an estoppels per rem judicatam and ipso facto bars the loosing party for all times re-litigating the same subject matter. It was submitted that the order of the trial Court which dismissed the suit is a final order and forecloses further litigation on the same subject matter.

The following cases were relied upon:-H. B. (NIG.) PLC VS. LODIGIANI NIG. LTD. (2010) 14 NWLR PART 1213 PAGE 330 AT 348. – IBOK VS. HONESTY II (2007) 6 NWLR PART 1029 PAGE 55 AT 69. – ALOR VS. NGENE (2007) 17 NWLR PART 1062 PAGE 163. It was submitted on behalf of the Cross-Appellants that the trial Court having finally determined the rights of the parties with respect to the claims of the Cross Respondent is functus officio from reopening the same matter against the same parties and cannot revisit the order made. The following cases were also referred to – INTEGRATED REALITY LTD. VS.

ODOFIN (2018) 3 NWLR PART 1606 PAGE 301. – ABUBAKAR VS. B. O. & A. P. LTD. (2007) 18 NWLR PART 1066 PAGE 319 AT 373. – OGBORU & ANOTHER VS. UDUAGHAN & OTHERS (2013) LPELR 20805 (SC). ​Learned Counsel for the Cross-Appellants urged this Court to hold that the trial Court erred in law when it construed the dismissal as a striking out order and held that the Cross Respondent had the right to re-file the suit.

ON FAILURE OF THE CROSS-RESPONDENT TO SERVE STATUTORY NOTICE ON THE 2ND CROSS RESPONDENT It was contended on behalf of the Cross-Appellants that the trial Court in holding that Cross Respondent issued statutory notice on the 2nd Cross-Appellant failed to consider the Cross-Appellants’ further affidavit and reply on points of law in support of the preliminary objection where it was argued that no pre-action notice was attached to the Originating Summons filed by the Cross-Respondent as mandated by Order 3 Rule 9(2) of the Federal High Court (Civil Procedure) Rules. The case of – A.G.

BENUE STATE & OTHERS VS. UMAR & OTHERS (2007) LPELR – 8076 (CA) was relied upon. Learned Counsel for the Cross-Appellants urged this Court to find that the failure to attach a vital document was detrimental to the Cross-Respondent’s case. ​It was also submitted that the 2nd Respondent is not Polaris Bank Ltd. who duly acknowledged receipt of the alleged pre-action notice. He urged this Court to hold that the trial Court erred in law when it held that the 2nd Cross-Appellant was served with pre-action notice.

ON CROSS RESPONDENT’S SUIT BEING AN ABUSE OF COURT PROCESS IN VIEW OF SEVERAL OTHER PENDING SUITS BETWEEN THE PARTIES ON SAME SUBJECT MATTER The learned Counsel for the Cross-Appellants submitted that the Learned trial Judge did not properly examine the facts of the various suits attached as Exhibits to the Cross Appellants’ affidavit in support of their objection when the Court held that the Cross Respondent’s instant suit does not amount to an abuse of the process of Court. He referred to Suit No.

FHC/L/CS/255/2017 wherein the 1st Cross-Appellant sought to recover depositors’ funds from the Cross-Respondent which was struck out but that the 1st Cross-Appellant filed an appeal in CA/L/557/2018 which according to Counsel is still pending before this Court. It was stated that in the said Suit/Appeal, the Cross Respondent challenged its indebtedness to the 1st Cross-Appellant.

The learned Counsel for the Cross-Appellants stated that the Cross Respondent without waiting for the determination of the issues of its indebtedness proceeded to file an action against the 1st Cross-Appellant in Suit No. FHC/L/CS/463/2018 in respect of same indebtedness. And that the said action is pending before the Federal High Court. Reference was also made to Suit No. LD/5014GCMW/2018 before the High Court of Lagos State which was later dismissed.

Learned Counsel for the Cross-Appellants stated that in defiance of the order of dismissal the Cross-Respondent filed the instant suit against the same 1st Cross-Appellant touching on the same facilities availed it. Learned Counsel for the Cross-Appellants submitted that the trial Court erred in law when it held that the instant suit does not amount to an abuse of the process of Court. He relied on the case of – TSA IND. VS.

FBN PLC (NO.1) (2012) 14 NWLR PART 1320 AT 344B. ​THE CROSS RESPONDENT BEING LEGALLY BARRED FROM MAINTAINING THE ACTION AGAINST THE 2ND CROSS APPELLANT It was submitted on behalf of the Cross-Appellants that the trial Court erred in law when it held that the Cross Respondent was not barred from maintaining the instant action against the 2nd Cross-Appellant by virtue of the salient provisions of the Asset Management Corporation of Nigeria Act (AMCON).

It was stated that the Cross Respondent’s grievance with the 2nd Cross-Appellant is solely because the 2nd Cross-Appellant acquired the eligible bank asset of the Cross Respondent from the 1st Cross-Appellant. The learned Counsel for the Cross-Appellants contended that the 2nd Cross-Appellant is a creation of statute ie., AMCON Act. It was submitted that any action taken against the 2nd Cross-Appellant in contravention of the AMCON Act will be null and void and that the said action is liable to be set aside or dismissed by the Court. Reliance was placed on Section 33A of the AMCON ACT 2019.

It was submitted on behalf of the Cross-Appellants that the Cross-Respondent’s suit wherein it challenged the sale of the eligible bank asset from the 1st Cross-Appellant to 2nd Cross-Appellant is dead on arrival.

Learned Counsel for the Cross-Appellants urged that this issue be resolved in favour of the Cross-Appellants. ​On the other hand, the Learned Senior Counsel for the Cross Respondent in his response – ON THE ISSUE OF THE DISMISSAL OF THE CROSS RESPONDENT’S EARLIER SUIT FILED AGAINST THE CROSS APPELLANTS ON THE SAME SUBJECT MATTER submitted that the issue for determination is whether the dismissal of FHC/L/CS/2411/2019 before Honourable Justice Aikawa amounts to a dismissal on merit or a striking out. He referred to the judgment of the trial Court where it was held that Suit No.

FHC/L/CS/2411/2019 before Honourable Justice Aikawa was not determined on merit and that it is not in all cases where a matter is dismissed that such dismissal would completely terminate the case and that in such situation, the dismissal merely amounts to a striking out.

ON FAILURE OF THE CROSS-RESPONDENT TO SERVE STATUTORY NOTICE ON THE 2ND CROSS-APPELLANT The learned Counsel for the Cross Respondent referred to Exhibit R1 attached to the counter affidavit in opposition to the Notice of Preliminary Objection that the Pre-Action Notice was served on the 2nd Respondent on the 6th of November 2019 and that this action was instituted on the 20th of November 2020 a period well over 90 days required under the AMCON Act. ​He also referred to the further counter affidavit on pages 480 to 483 of the Record of Appeal filed in opposition to the Notice of Preliminary Objection where it was deposed that Exhibit R1 was served on the Polaris Task Force Unit of the 2nd Respondent/Cross-Appellant responsible for recovering the indebtedness of the Cross Respondent.

Reference was made to Exhibits 1, 2 and 3 to show that there was a Polaris Task Force Unit within the 2nd Respondent that acknowledged receipt of Exhibit R1. THE CROSS-RESPONDENT’S SUIT BEING AN ABUSE OF COURT PROCESS IN VIEW OF SEVERAL OTHER PENDING SUITS BETWEEN THE PARTIES ON THE SAME SUBJECT MATTER. In determining whether an action is an abuse of Court process, Learned Counsel for the Cross Respondent referred to the case of –CHIEF VICTOR UMEH VS. PROF.

MAURICE IWU (2008) LPELR – 3363 (SC) where it was held amount others that for one to sustain a charge of abuse of Court process there must co-exist inter alia (1) a multiplicity of suits (2) between the same opponents (3) on the same subject matter (4) on the same issue. ​The four factors listed above must co-exist and must not be given effect to in a disjunctive manner and where one or any of the four factors cannot be established, the claim for abuse of Court process must fail. Suit No.: FHC/L/CS/255/17 – SKYE BANK PLC & ANOTHER VS. MILAN INDUSTRIES.

Learned Senior Counsel for the Cross Respondent referred to Suit No.-FHC/L/CS/255/17 filed by the 1st Cross Appellant which was struck out on 20/5/2018 and is the subject matter of appeal in CA/L/557/2017 instituted by the Cross Appellants. He argued that there are similarities in the parties, the reliefs claimed in the suit and this present one is different. In FHC/L/CS/255/17 the 1st Cross-Appellant is seeking for protective orders for the Receiver/Manager in the exercise and performance of his duties over the asset charged.

He referred to the Originating Summons on pages 152 – 155 of the Record of Appeal filed by the Cross-Appellants. On the other hand, it was contended on behalf of the Cross Respondent that the Originating Summons filed in the present action on appeal seeks to set aside the sale of the Cross-Respondents’ property as an eligible bank asset. SUIT NO.:FHC/L/CS/463/18 – MILAN INDUSTRIES LIMITED VS.

SKYE BANK PLC & ANOTHER ​It was argued by the Learned Senior Counsel for the Cross Respondent that Suit No.: FHC/L/CS/463/18 was instituted by the Cross Respondent and sought mainly for a declaration that by virtue of the maturity date of the facilities contained in the letter dated 14/9/2012, the 1st Cross Appellant’s appointment of Kunle Ogunba SAN as Receiver/Manager of the Cross Respondent prior to September 2021 is premature and invalid. He referred to the Statement of Claim on pages 240 – 247 of the Record of Appeal. SUIT NO.: LD/5014/GCNW/18 – MILAN INDUSTRIES LIMITED VS.

SKYE BANK PLC It was contended on behalf of the Cross Respondent that the reliefs claimed in Suit No.: LD/5014/GCNW/18 is not the same as the reliefs claimed in the present suit on appeal.

Reference was made to pages 240 – 246 of the Record of Appeal to show that the relief claimed in Suit No.: LD/5014/GCNW/18 was for a declaration that the 1st Cross-Appellant has utilized the proceeds of the Hotel to liquidate all sums allegedly outstanding on the facilities and not one single relief claimed related to the sale of the Cross Respondent’s asset as an eligible bank asset. ​It was submitted on behalf of the Cross Respondent that filing of multiple actions which do not necessarily seek the same or similar relief though between the same parties will not amount to an abuse of the process of Court.

Reliance was placed on the following cases of – MOBIL PRODUCING NIGERIA UNLIMITED VS. MONOKPO (2003) 18 NWLR PART 852 AT PAGE 346 AT 430. – AIC LTD. VS. FAAN (2015) LPELR – 2453 (CA). – FASAKIN FOODS NIG. CO. LTD. VS. SHOSANYA (2003) 17 NWLR PART 849 AT PAGE 237. THE CROSS RESPONDENT BEING LEGALLY BARRED FROM MAINTAINING THE ACTION AGAINST THE 2ND CROSS APPELLANT. It was submitted on behalf of the Cross Respondent that there must be a valid acquisition of an eligible bank asset before the provision of Section 33A can be invoked.

It was submitted that the mortgagee, the 1st Cross-Appellant cannot recover any amount in excess of the amount secured. Where the mortgagee grants various facilities but only secures the sum of N2Billion as in this case, the 1st Cross-Appellant cannot recover any amount in excess of the amount secured and where the amount secured has been paid the security is discharged.

Reference was made to the provision of Section 202 of CAMA 1990. ​The learned Senior Counsel for the Cross Respondent referred to paragraphs 13, 14, 15, 16, 17 and 18 of the Affidavit in Support of the Originating Summons to show that between 14th March 2014 and 5th December 2016 a sum in excess of the N2 Billion was repaid to discharge the N2 Billion secured by Exhibit M2. He submitted that this Court has the power to evaluate the statement of account and form its own opinion on it.

He finally urged that this Court should hold that the secured and collateralized loan of N2 Billion has been repaid to discharge the mortgaged property and that Section 33A will not be applicable in the circumstances. RESOLUTION OF ISSUE NO. 1 The issue here is whether the Learned trial Judge erred in law when he overruled the Cross Appellants’ Preliminary Objection challenging its jurisdiction to hear the suit and consequently proceeded with the determination of the Cross Respondent’s suit.

The Cross-Appellants had filed a notice of Preliminary Objection challenging the jurisdiction of the trial Court to entertain and adjudicate on the Cross Respondent’s suit. ​The grounds for the objection were set out earlier in this Judgment. The trial Court delivered its judgment on 2/7/2021 in which it overruled the objection and consequently assumed jurisdiction to entertain the Cross Respondent’s suit.

ON THE ISSUE OF THE DISMISSAL OF THE CROSS RESPONDENT’S EARLIER SUIT FILED AGAINST THE CROSS APPELLANTS ON SAME SUBJECT MATTER The issue to be examined here is whether the dismissal of Suit No.: FHC/L/CS/2411/2019 before Honourable Justice Aikawa amounts to a dismissal on merit or a striking out.

The trial Court held that Suit No.: FHC/L/CS/2411/2019 before Honourable Justice Aikawa was not determined on merit and that it is not in all cases where a matter is dismissed that such dismissal would completely terminate the case and that in such situations the dismissal merely amounts to a striking out. ​It would be recalled that the trial Court in arriving at its conclusion that the dismissal amounted to a striking out found that the effect of the failure to serve pre-action notice which was the reason for discontinuing Suit No.: FHC/L/CS/2411/2019 meant that the action filed was incompetent and since that was the case, there was nothing to dismiss.

The situation here is that the suit was not dismissed on merit. The settled principle of law is that when an action is struck out, it is still alive and could be resuscitated by the Plaintiff/Appellant. But when an action is dismissed on merit, the matter has come to a final bus stop. However, where a matter is dismissed on the basis of objection raised as in this case, that the process is technically bad, the dismissal will not be on merit and the originator of the suit will be at liberty to refile the suit after compliance with the correct position of the law.

All I am saying is that where a matter has not been heard on the merit and it is withdrawn and an order of dismissal is made, the order dismissing the suit will amount to a striking out. In PANALPINA WORLD TRANSPORT VS. J. B.

OLANDEEN INTERNATIONAL (2010) LPELR – 2902 (SC); (2010) 19 NWLR PART 1226 PAGE 1 it was held among others that – “… when an order of Court is made in respect of an application not heard on the merits it amounts to striking out simpliciter, even where an order of dismissal is made following a hearing which is not based on the merit, such an order is still considered in law a mere striking out”. And in ABAYOMI BABATUNDE VS. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. & OTHERS (2007) 13 NWLR PART 1050 PAGE 113.

It was held among others that – “… the principle of law for some time has been settled that withdrawn cases are not usually dismissed by just a mere wave of hand”. The trial Court must ensure that a point of no return or litis contestatio has been reached by the parties. See – ERONINI VS. IHEUKO (1989) 2 NWLR PART 101 PAGE 46. In NIGERIA AIRWAYS LTD. VS. LAPITE (1990) 7 NWLR PART 163 PAGE 392, Uwais, JSC (as he then was) made the following observations: “the power of Court to dismiss a case in limine should be exercised with utmost circumspection and not lightly as a matter of course”.

Not much longer thereafter, Tobi, JSC following suit in the case of – REGISTERED TRUSTEES OF IFELOJU FRIENDLY SOCIETY VS.

KUKU (1991) 5 NWLR PART 189 PAGE 65 AT 79 held that – “It is only when the justice of the case tilts heavily in favour of dismissal of the action in limine that he should toe that cruel and lonesome path, a path that a trial Judge should really dread to tread, unless all other pedestrainable paths, including that of striking out are closed to him … In our democracy where the rule of law both in its conservative and contemporary constitutional meaning operates, the door of the Courts should be left wide open and I mean really wide throughout the day for aggrieved persons and the generality of litigants to enter and seek any form of judicial redress or remedy.

This is a desideratum in our polity”. In this case, it is my view that since the dismissal of Suit FHC/L/CS/2411/2019 was not on merit, it should be treated as a striking out, moreso that Aikawa J. did not determine any of the issues in controversy and no oral or documentary evidence was led and a decision rendered on the merit. The trial Court was therefore right when it construed the dismissal as a striking out order.

ON FAILURE OF THE CROSS RESPONDENT TO SERVE STATUTORY NOTICE ON THE 2ND CROSS-APPELLANT The learned Counsel for the Cross-Appellants submitted that the Cross Respondent failed to serve pre-action notice on 2nd Respondent but the Cross Respondent referred to Exhibit R1 attached to the Counter Affidavit in opposition to the Notice of Preliminary Objection to show that Pre-action Notice was served on the 2nd Respondent on 6/11/2019 and this action was instituted on 20/11/2020.

In the further Counter Affidavit on pages 482 – 483 of the Record of Appeal the Cross Respondent deposed to the fact that Exhibit R1 the Pre-action Notice was served on the Polaris Task Force Unit of the 2nd Cross-Appellant responsible for recovering the indebtedness of the Cross Respondent. Exhibits 1, 2 and 3 showed that there was a Polaris Task Force Unit within the 2nd Cross-Appellant that acknowledged receipt of Exhibit R1.

I agree with the submission of the Counsel for the Cross Respondent that the 2nd Appellant has not denied that they have a Polaris Task Force Unit headed by Dorcas Adegoke.

Exhibit R1 was addressed to the 2nd Cross-Appellant and was received and stamped by Polaris Bank Limited Task Force by the 2nd Cross-Appellant. ​In view of the foregoing, I am therefore in agreement with the trial Court when it held that Exhibit R1 was served upon the Polaris Task Force Unit of the 2nd Respondent/Cross-Appellant and that it is not the law that the life span of the pre-action notice served on the 2nd Cross-Appellant ended with Suit No.: FHC/L/CS/2411/2019 which was withdrawn.

ON CROSS RESPONDENT’S SUIT BEING NO ABUSE OF COURT PROCESS IN VIEW OF SEVERAL OTHER PENDING SUITS BETWEEN THE PARTIES ON THE SAME SUBJECT MATTER. The learned Counsel for the Cross-Appellants submitted that the trial Court did not properly examine the facts of the various suits attached as Exhibits to the Cross Appellants’ affidavit in support of their objection, when the Court held that the Cross Respondent’s instant suit does not amount to an abuse of the process of Court. On the other hand, the Learned Senior Counsel for the Cross Respondent referred to the case of – CHIEF VICTOR UMEH VS.

PROF. MAURICE IWU (2008) LPELR – 3363 (SC), (2008) 8 NWLR PART 1089 PAGE 225, where it was held among others that – “In order to sustain a charge of abuse of process, there must co-exist inter-alia (1) a multiplicity of suits (2) between the same opponents (3) on the same subject matter (4) on the same issues”. The four factors listed above must not be given effect to in a disjunctive manner and where one or any of the four factors cannot be established the claim for abuse of Court process must fail.

In order to determine whether the present suit now on appear constitutes an abuse of Court process, it would be necessary to examine this suit along with other matters. Suit No.: FHC/L/CS/255/17 filed by the 1st Cross Appellant. The suit sought for protective orders for the Receiver/Manager in the exercise and performance of his duties over the asset charged. See pages 152 – 155 of the Record of Appeal. The said suit was struck out on 20/5/2018 but it is on appeal in CA/L/557/2017 instituted by the Cross-Appellants.

The parties in the two suits are similar but the reliefs claimed in the two suits are different. The Originating Summons filed in this suit on appeal sought to set aside the sale of the Cross Respondent property as an eligible bank asset. The Cross-Respondent’s cause of action in the present suit on appeal arose in November 2018 when the 2nd Cross-Appellant wrote Exhibit M3 on page 30 of the Record of Appeal on 30/11/2018 notifying the Cross Respondent of the sale of the asset mortgaged as an eligible bank asset.

Furthermore, the Originating Summons in FHC/L/CS/255/17 Skye bank Plc & Another Vs. Millan Industries on pages 152 to 155 of the Record of Appeal was instituted in 2017 long before the mortgaged property was sold as an eligible bank asset to the 2nd Cross-Appellant. The issue of the sale of the mortgaged property as an eligible bank asset could not have been raised in the action filed in 2017. SUIT NO – FHC/L/CS/463/18 – MILAN INDUSTRIES LIMITED VS. SKYE BANK PLC & ANOTHER.

The Learned Counsel for the Cross-Appellants referred to the affidavit in support of the Preliminary Objection that the Cross Respondent without waiting for the determination of the issues of its indebtedness in Suit No.CA/L/557/2018 proceeded to file an action against the 1st Cross-Appellant in FHC/CS/463/2018 regarding its same indebtedness. ​The Learned Counsel for the Cross Respondent contended that Suit No.: FHC/L/CS/463/18 is challenging the validity of the appointment of the Receiver/Manager but has nothing to do with the sale of the asset of the Cross-Respondent as an eligible asset.

Other reliefs claimed are for a Declaration that upon taking over possession of the Cross Respondent’s hotel the 2nd Cross-Appellant owed the Cross Respondent a fiduciary duty and obligation to observe the utmost good faith in managing the affairs and assets of the Cross Respondent.

It is observed that the Cross Respondent could not have raised the issue of the sale of the Cross Respondent’s property as an Eligible Bank Asset in March 2018 when Suit No.: FHC/L/CS/463/18 was filed in view of the fact that the cause of action in respect of the sale of the property as an eligible bank asset did not arise until November 2018 when the 2nd Respondent/Cross-Appellant wrote Exhibit R3 notifying the Cross Respondent of the take-over of the mortgaged property as an Eligible Bank Asset. ​SUIT NO.- LD/5014GCMW/2018 – MILAN INDUSTRIES LIMITED VS.

SKY BANK PLC The Learned Counsel for the Cross-Appellants submitted that the Learned trial Judge was wrong when he held that the Cross Respondent’s instant suit does not amount to an abuse of the process of Court. In his own case the Learned Senior Counsel for the Cross Respondent stated that the reliefs claimed in Suit No.-LD/5014GCNW/18 is not the same as the reliefs claimed in the present suit on appeal.

He referred to the Statement of Claim on pages 240 – 247 of the Record of Appeal to show that the relief claimed in Suit No.: LD/5014GCNW/18 was for a declaration that the 1st Cross-Appellant has utilized the proceeds of the hotel to liquidate all sums allegedly outstanding on the facilities and not one single relief claimed relates to the sale of the Cross Respondent’s asset as an Eligible Bank Asset. The cases reviewed above showed that the Cross Respondent claimed different reliefs in all the actions under consideration.

I am therefore of the view that the filing of multiple actions which do not necessarily seek the same relief though between the same parties will not amount to an abuse of the process of Court. See – MOBIL PRODUCING NIGERIA UNLIMITED & 1 OTHER VS. MONOKPO VS. ANOTHER (SUPRA) PAGE 346 AT 430.

THE CROSS RESPONDENT BEING LEGALLY BARRED FROM MAINTAINING THE ACTION AGAINST THE 2ND CROSS APPELLANT The learned Counsel for the Cross-Appellants submitted that the trial Court erred in law when it held that the Cross Respondent was not barred from maintaining the instant action against the 2nd Cross-Appellant by virtue of the salient provisions of the Asset Management Corporation of Nigeria (AMCON) Act.

He argued that from the Originating Process, the Cross Respondent’s grievance with the 2nd Cross-Appellant is solely because the 2nd Cross-Appellant acquired the Eligible Bank Assets of the plaintiff from the 1st Cross-Appellant. He referred to reliefs (a) and (c) in the Originating Summons earlier set out in this Judgment.

Learned Counsel for the Cross-Appellants referred to Section 33A of the Asset Management Corporation of Nigeria (Amendment) Act 2019 which provides thus:- “33A- No action or proceeding shall lie, be instituted or maintainable against the corporation or any of its directors or officers by reason only of the acquisition of an eligible bank asset by the corporation under this Act, and any action or proceedings already existing shall cease and abate except where the eligible bank asset became vested in the corporation as specified under this Act”.

The learned Senior Counsel for the Cross Respondent is of a contrary view that the said Section 33A of the AMCON Act 2019 is not applicable to this case. There is no doubt that by the provision of Section 33A of the AMCON Act 2019, no action or proceeding shall lie or be instituted against the 2nd Cross-Appellant by reason only of the acquisition of an Eligible Bank Asset. What this means is that before the provisions of Section 33A can be invoked, there must be a valid acquisition of an eligible bank asset.

The contention of the Cross Respondent is that there was no eligible bank asset to acquire from the 1st Cross-Appellant. It was further contended on behalf of the Cross Respondent that the said eligible bank asset which was secured by the sum of N2 billion had been discharged long before the 2nd Cross-Appellant acquired the asset.

A careful reading of the provision of Section 202 of the Companies and Allied Matters Act 1990 which provides thus: “Where a charge particulars of which require registration under Section 197 is expressed to secure all sums due or to become due or some other uncertain or fluctuating amount, the particulars required under Section 197 shall state the maximum sum deemed to be secured by such charge (being the maximum sum covered by the stamp duty paid thereon) and such charge shall be void, so far as any security on the company’s property is thereby conferred, as respects any excess over the stated maximum”. would reveal that the mortgagee, i.e., the 1st Cross-Appellant cannot recover any amount in excess of the amount secured.

In this appeal under consideration as I said earlier in this judgment, for the reason best known to the parties i.e., the Cross Respondent and 1st Cross-Appellant, the amount secured as evidenced by Exhibit M2 – the Certificate of Registration issued by the Corporate Affairs Commission was N2 Billion and this amount had been liquidated as at the time the 2nd Cross-Appellant was acquiring the asset from the 1st Cross-Appellant.

I am of the view that where the amount secured has been liquidated the 1st and 2nd Cross-Appellants are left with the unpaid excess sum as an unsecured debt which is void and unenforceable against the charge. ​There is no doubt that the Cross Respondent is still indebted to the 1st Cross-Appellant, but the 1st Cross-Appellant cannot recover more than the N2 Billion secured and the excess amount owed which is not secured will be void against the charge but can be recovered as an unsecured debt.

The Cross Respondent as shown in the affidavit in support of the Originating Summons showed that between the 14th March 2014 and 5th December 2016 a sum in excess of the N2 Billion was repaid to discharge the N2 billion secured by Exhibit M2.

The affidavit in support of the Originating Summons showed the statement of account prepared by 1st Cross-Appellant which was attached revealed the principal amount liquidated as from 14th March 2014 as follows:- “14/3/14 – principal liquidated – N366,000,000.00 15/4/14 – principal liquidated – N250,000,000.00 3/4/14 – principal liquidated – N629,444,154.00 1/7/14 – principal liquidated – N100,000,000.00 13/8/14 – principal liquidated – N250,000,000.00 17/10/14 – principal liquidated – N200,000,000.00 20/10/14 – principal liquidated – N50,000,000.00 27/10/14 – principal liquidated – N70,000,000.00 18/12/14 – principal liquidated – N100,000,000.00 06/1/15 – principal liquidated – N100,000,000.00 17/2/15 – principal liquidated – N200,000,000.00 01/7/15 – principal liquidated – N95,000,000.00 03/8/15 – principal liquidated – N70,000,000.00 4/8/15 – principal liquidated – N50,000,000.00 7/9/15 – principal liquidated – N297,797,471.50 15/9/15 – principal liquidated – N50,000,000.00 21/10/15 – principal liquidated – N50,000,000.00 23/11/15 – principal liquidated – N100,000,000.00 2/12/15 – principal liquidated – N236,000,000.00” It is settled law that on documentary evidence this Court has as much as the same forensic leverage as the trial Court to form its own opinion on them.

See – NNORODIM VS. EZEANI & OTHERS (2001) 2 SCNJ PAGE 1. – GONZEE (NIG.) LTD. VS. NIGERIAN EDUCATIONAL RESEARCH & DEVELOPMENT COUNCIL & OTHERS (2005) 13 NWLR PART 943 PAGE 634. The Cross-Appellants attempted to deny that N2 Billion was paid. In paragraph 16 of the Counter Affidavit filed in opposition to the Originating Summons, it was admitted that the repayments were made but that the payments were from the repayment source of the loan and not upon the activation of the Deed of Legal Mortgage when the security for the loan was taken over by the Receiver/Manager in 2017.

As I stated earlier the repayments were captured in the statement of account prepared by the 1st Cross-Appellant with the narration “principal liquidation” therefore the source of repayment in my view is immaterial. In view of the foregoing, my conclusion is that the secured and collateralized loan of N2 Billion has been repaid to discharge the mortgaged property. Furthermore, Section 33A will not be applicable because the only thing the 1st and 2nd Cross-Appellants could have acquired was the unsecured and uncollateralized loan and the excess amount not secured is void against the charge.

In the circumstance, I agree with the decision of the trial Court that there was no eligible bank asset to acquire by the 2nd Cross-Appellant and therefore that Section 33A of the AMCON Act 2019 does not apply to this case. Consequent upon the foregoing this issue No. 1 is resolved in favour of the Cross Respondent and against the Cross-Appellants.

ISSUE NO. 2 “Whether the Court below was legally mandated to properly determine all the issues submitted to it by the Cross-Appellants and to consequently reiterate the dismissal of the Cross Respondent’s suit on the vital points/issues submitted by the Cross-Appellants in their processes by the Honourable Court”. (Distilled from Grounds 1 and 2 of the Notice of Cross-Appeal).

The learned Counsel for the Cross Appellant referred to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He contended that cases on interpretation of the concept of fair hearing has been held to mean that all parties must be given equal opportunity to present their cases for litigation before the Court. He relied on the following cases:- – UKWUYOK & OTHERS VS. OGBULU & OTHERS (2019) LPLER – 48741. – ADAMU & ANOR. VS. F.R.N. (2019) LPELR – 48775 (SC). – ARIJE VS.

ARIJE & OTHERS (2018) LPELR – 44193 (SC). ​He referred to the Originating Summons filed on 20/11/2020 where questions were presented for the determination of the trial Court. He also referred to the Counter Affidavit and the Written Address opposing same. He contended that the lower Court ought to have given credence to the Cross Appellants’ process which were pleaded before it, in determining the suit on the merit, however, that the trial Court failed to give credence to the processes filed by the Cross-Appellants and proceeded to determine the matter solely on the Cross Respondents processes.

He argued that the argument of the Cross-Appellants in their Written Address and Counter Affidavit were not considered. That this has occasioned a serious miscarriage of justice. He relied on the following cases:- – NIGERIAN CEMENT CO. PLC. & OTHERS VS. OBIDIKE (2015) LPELR – 40647 (CA). – OVUNWO VS. WOKO (2011) 17 NWLR PART 1277 PAGE 522. – ABDULLAHI VS. THE GOVERNOR OF KANO STATE & OTHERS (2011) LPELR – 8925 (CA). – INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD. & ANOTHER VS. MUTUNCI CO. NIG. LTD. (2011) LPELR – 4329 (CA). – NGGILARI VS.

STATE & OTHER (2017) LPELR – 42985 (CA). ​It was submitted by Counsel for the Cross-Appellants that the trial Court having failed in its constitutional duty to consider the issues submitted to it by the Cross-Appellants, he urged this Court to consider the said issues and make positive findings on them. He relied on Section 15 of the Court of Appeal Act 2004. He relied on the case of – – WAZIRI VS. POLICE SERVICE COMMISSION & ANOTHER (2015) LPELR – 2461 (CA).

In their Written Address in opposition to the Originating Summons, the Cross-Appellants submitted three issues for the consideration of the trial Court viz – “(1) Whether or not the security pledged by the plaintiff is void in relation to any amount in excess of N2 Billion for which the Deed of Legal Mortgage was up-stamped. (2) Whether having “allegedly” paid the sum of N2 Billion secured under the Deed of Legal Mortgage before 30/11/2018 when the Asset Management Corporation of Nigeria took over the Debt/Security under the Legal Mortgage the debt/security of the plaintiff qualifies as an Eligible Bank Asset. (3) Whether the 2nd Defendant can dispense of the Eligible Bank Asset acquired from the 1st Defendant to the 3rd Defendant”. ​It was submitted that the foundation of all the facilities availed the Appellant/Cross Respondent is the offer letters and by the said offer letters the security clause therein provides thus:- “Security: Legal Mortgage on the land and the building of the proposed Intercontinental Hotel on Kofo Abayomi Street, Victoria Island Lagos”.

Learned Counsel for the Cross Appellant referred to clauses 1.01 and 3.01 of the Deed of Legal Mortgage on pages 13 and 15 of the record of appeal respectively and contended that under the charging clause, the mortgaged property is to be utilized as a continuing security for the payment of all moneys and the discharge of all obligations and liabilities hereby covenanted to be paid or otherwise hereby secured subject to cesser an redemption. He referred to the case of – E.A. LTD. INDUSTRIES VS.

NERFUND (2009) 8 NWLR PART 1144 PAGE 552. ​Sections 198(2) and 199(1) and (2) of the Companies and Allied Matters Act were referred to and Learned Counsel for the Cross-Appellants submitted that assuming without conceding that the Deed of Legal Mortgage was not registered and properly up-stamped to cover the entire indebtedness of the Appellant/Cross Respondent, that it should not be allowed to benefit from its wrong doing. The case of –C.G.C. NIGERIA LIMITED VS. YUSUF (2016) LPELR – 41567 (CA).

Learned Counsel for the Cross-Appellants finally urged this Court to hold that the trial Court erred in law when it failed to consider the crucial issues argued by the Respondent/Cross-Appellants in their Written Address in opposition to the Originating Summons, he urged this Court to resolve all the issues in favour of the Respondent/Cross-Appellants and allow the cross-appeal.

In his response, the learned Senior Counsel for the Cross Respondent submitted that Grounds 1 and 2 of the Cross-Appeal from which Issue two (2) was distilled did not arise from the judgment of the trial Court and the failure to pronounce on all issues did not amount to a denial of fair hearing. Reliance was placed on the case of – KANTIN KWARI MARKET TRADERS ASSOCIATION VS. LABARAN (2016) LPELR – 41329 (CA).

He argued that the Record of Proceedings showed that the Cross-Appellants were given the opportunity to be heard and not denied fair hearing. ​Learned Senior Counsel for the Cross Respondent agreed with the submission of Cross-Appellants that under the charging clause that the mortgaged property is to be utilized as a continuing security for the repayment of the loan but contended that Section 202 of CAMA 1990 (now Section 227 CAMA 2020) which the Cross Respondent is relying upon is not inconsistent or at variance with clause 3.01 of the Deed of Legal Mortgage.

It was contended on behalf of the Cross Respondent that it is not the Cross Respondent’s argument that the failure to have the document stamped or up-stamped is a ground to render the instrument void for recovery of the sum owed. The argument of the Cross Respondent is that the Cross Appellant cannot recover beyond the maximum amount secured by the registration of the charge and where the maximum amount secured has been liquidated the security will be discharged. The excess amount not secured cannot be enforced against the company’s security and can only be recovered through a debt action.

It was also submitted on behalf of the Cross-Respondent that the argument that AMCON is exempted from paying stamp duty under Section 60 of AMCON Act is untenable. It was submitted further that the 1st Cross-Appellant should have registered the charge for the maximum amount before AMCON came into the picture. The duty to register was on both the 1st Cross-Appellant and Cross-Respondent and not AMCON. The 1st Cross-Appellant as the party interested took up the responsibility to register the charge but failed to register for the maximum amount loaned with the accrued interest.

The learned Senior counsel for the Cross Respondent urged that the cross-appeal be dismissed.

In his reply brief of argument, the Learned Counsel for the Cross-Appellants submitted that the Deed of Legal Mortgage between the Cross Respondent and the 1st Cross Appellant was created to secure all money owed by the Cross Respondent to the 1st Cross-Appellant and same is not void with respect to any money availed the Cross Respondent in excess of N2 Billion. ​It was submitted further that the Deed of Legal Mortgage as well as the offer letter between the Cross Respondent and the 1st Cross-Appellant did not classify any sum in excess of N2 Billion as an uncollateralized facility, and also that the debt acquired by the 2nd Cross-Appellant from the 1st Cross-Appellant is a secured/collateralized debt which qualifies as an eligible Bank asset.

Reliance was placed on Section 24 of the AMCON Act paragraph 5 of its guidelines. Learned Counsel for the Cross-Appellants finally urged that this Cross Appeal be allowed. RESOLUTION OF ISSUE NO. 2 The learned Counsel for the Cross-Appellants submitted that a perusal of the judgment of the trial Court revealed that the arguments of the Cross-Appellants in their Written Address in opposition to the Originating Summons and Counter Affidavit to same were not duly considered and as a result their right to fair hearing was violated.

A careful perusal of the record of appeal would reveal that the Cross-Appellants were given the opportunity to be heard and not denied fair hearing. The trial Court heard both sides before it delivered its judgment. The art of judgment writing is a style which each Judge is at liberty to adopt. There is no prototype style which is obligatory for adoption. The most important in my view is the substance contained in the judgment portraying justice expected which is meted out to the parties. It may not be a fair objective to cast aspersion against a style of judgment writing.

In this case, both parties were not satisfied with the judgment of the trial Court and they have appealed on various issues which are due for determination.

The learned Counsel referred to Clause 3.01 of Deed of Legal Mortgage on page 15 of the Record of Appeal which provides thus:- “The Mortgagor as Beneficial Owner hereby conveys to the Bank all that property specified in the schedule hereto and all buildings and fixtures from time to time thereon (together referred to as the property) as a continuing security for the payment of all monies and the discharge of all obligations and liabilities hereby covenanted to be paid or otherwise hereby secured subject to cesser on redemption.” ​The charging clause referred to above is the effect that the mortgaged property is to be utilized as a continuing security for the repayment of the loan but upon a careful perusal, it would be seen that it is consistent with the provision of Section 202 of CAMA 1990 now Section 227 of CAMA 2020 which provides that – when a charge, particulars of which requires registration under Section 197, is expressed to secure all sums due or become due or some uncertain or fluctuating amount, the particulars of the charge as prescribed under Section 197 shall state the maximum sum deemed secured.

Section 202 of the Companies and Allied Matters Act 2020 clearly stipulates that where a charge as in the instant case is expressed to secure all sums due or to become due or some other uncertain or fluctuating amount, the charge must state the maximum amount deemed to be secured by the charge (being the maximum sum covered by the stamp duty paid) and such shall be void, so far as any security on the company’s property is concerned in respect of any excess over the stated maximum.

In this case, the 1st Cross-Appellant in compliance with Section 197 of CAMA 1990 registered the charge but failed to up-stamp the charge for the maximum amount loaned which they were entitled to do under the Deed of Legal mortgage and pursuant to the provision of Section 202 of CAMA 1990 now Section 227 CAMA 2020. ​The major consequence of not securing the charge for the maximum amount (both principal and interest) is that the lender will not be allowed to recover any amount in excess of the amount secured by the charge and where the amount secured is liquidated the lender’s right to enforce the charge would be lost.

The Learned Counsel for the Cross-Appellants have argued that by the provisions of Section 199(1) and (2) of CAMA the duty rest on the Cross Respondent to register the charge and to adequately up-stamp same. The Provision of Section 199(1) and (2) (supra) which though states that the company shall have a duty to send to the commission for registration the particulars of every charge created, it goes further to impose a duty on any person interested to apply for registration.

It was submitted on behalf of the Cross Respondent that the Cross-Appellants submitted the charge for registration because they stand to lose more if the charge is not registered but for reasons best known to them, they failed to up-stamp the charge for the maximum amount loaned including interest. I am ad idem with the Cross Respondent on this point. ​It is not the Cross Respondent’s argument that the failure to have a document stamped or up-stamped is a ground to render the instrument void for recovery of the sum owed.

The Cross Respondent’s argument is that the 1st Cross Appellant cannot recover beyond the maximum amount secured by the registration of the charge and where the maximum amount secured has been liquidated the security will be discharged. It means that the excess amount not secured cannot be enforced against the company’s security and it can only be recovered through a debt action. The issue, in this case, is not about payment of stamp duty or whether the Certificate of Registration Exhibit M2 is admissible or not admissible for not being stamped.

In this appeal under consideration, the 1st Cross-Appellant as a party interested in the charge up-stamped for the maximum amount secured in Exhibit M2 and paid stamp duty on the amount secured.

The failure to register the charge for the maximum amount loaned has consequences and it is now late to go back and rectify the shortcoming by up-stamping for the maximum amount of N15 Billion involved or to settle out of Court. ​The consequence of the failure of the 1st Cross-Appellant to register for the maximum amount is that they cannot recover beyond the amount stated in Exhibit M2 and where the amount stated in Exhibit M2 is liquidated the security will be discharged.

The excess amount which is void against the charge is the unsecured amount not registered, which can only be recovered through a debt action and not against the charge of the company. The 1st and 2nd Cross-Appellants will be entitled to the unsecured amount not registered against the charge of the company which is an uncollateralized and unsecured debt. As stated earlier in the judgment the 1st Cross Appellant ought to have registered the charge for the maximum amount loaned before the 2nd Cross Appellant came into the controversy.

Finally, the law governing registration of charges is Section 199 (1) and (2) of CAMA which provides thus: “1. It shall be the duty of a company to send to the Commission for registration, the particulars of every charge created by the company and of the issues of debentures of a series requiring registration under Section 197 of this Act, but registration of any such charge may be effected on the application of any person interested therein. (Emphasis ours) 2.

Where registration is effected on the application of some person other the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the Commission on the registration.” The provision set out above would reveal that the duty to register the Deed of Legal Mortgage being a charge and to up-stamp same rests on both the 1st Cross-Appellant and the Cross Respondent. But the 1st Cross-Appellant who stood the risk of losing more ought to have registered the charge for the maximum amount loaned including interest.

In view of the foregoing, this Issue No. 2 is also resolved in favour of the Cross Respondent and against the Cross-Appellants. With the resolution of Issues No. 1 and 2 in favour of the Cross Respondent and against the Cross-Appellants, it is my view that this Cross Appeal lacks merit and it is hereby dismissed. The Cross Respondent is entitled to costs which is fixed at N250,000.00 against the Cross-Appellants jointly and severally. Cross-Appeal dismissed.

MUHAMMED IBRAHIM SIRAJO, J.C.A.: The Appellant’s property, a 361 Room Intercontinental Hotel in Lagos, now Lagos Continental Hotel, was the security for the Two Billion Naira loan facility advanced to the Appellant by the 1st Respondent under a Deed of Legal Mortgage executed by the Appellant in favour of the 1st Respondent and duly registered with the Corporate Affairs Commission. That was in September, 2010.

The dispute leading to this appeal arose following the purported sale of the Appellant’s secured debt/security to the 2nd Respondent on the ground that the Appellant has not liquidated the amount for which the property was charged under the Deed of Legal Mortgage. The Appellant insisted that it had paid over Two Billion Naira in liquidating the facility and that as at the time the 1st Respondent entered into agreement to sell the Appellant’s secured asset to the 2nd Respondent, there was no collateralized and secured asset to sell to the 2nd Respondent.

It was also the case of the Appellant that at the time the 2nd Respondent sold the Appellant’s Intercontinental Hotel to the 3rd Respondent, the Appellant had discharged its obligation under the Legal Mortgage by paying the amount secured by the property. The two Statements of Account of the Appellant with the 1st Respondent tendered before the lower Court as Exhibits MA and M5 shows that the Appellant has paid back over Two Billion Naira to the 1st Respondent before the purported sale of the secured debt to the 2nd Respondent.

In the draft of the leading judgment made available to me before now, my learned brother, JIMI OLUKAYODE BADA, PJCA, has exhibited a perfect understanding of the dispute between the parties, especially as it relates to the Two Billion Naira being the maximum limit upon which the Appellant’s property was charged under the Deed of Legal Mortgage. His lordship has ably dissected the lone issue in the appeal and I am in total agreement with his reasoning and conclusion that the appeal has merit and ought to be allowed.

I find that there was no eligible bank asset to be acquired by the 2nd Respondent because the Appellant has liquated his indebtedness before the purported transaction between the 1st Respondent and the 2nd Respondent and between the 2nd Respondent and the 3rd Respondent. I adopt his lordship’s reasoning and conclusion in the leading judgment as mine in also allowing the appeal. I abide by all the orders made in the leading judgment including that of costs. I also dismiss the cross-appeal as was done in the leading judgment of my learned brother, JIMI OLUKAYODE BADA, PJCA.

I abide by the order as to costs.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment just delivered by my noble Lord, Jimi Olukayode Bada; JCA wherein the issues in contention are set out in extenso. ​The judicial reasoning and conclusions reached on the issues raised accord with mine, and I hereby affirm my agreement with the leading judgment which allowed the main appeal and dismissed the cross-appeal. I equally abide by the orders on costs.

Judgment

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Rivers State Port Harcourt Division delivered on 8th November, 2018 by Hon. C. Nwogu, J. in Suit No. PHC/1006/2017.

The Appellants/Applicants by a Motion on Notice dated and filed on 26th day of October, 2018 at the Court below, brought pursuant to Order 24 Rules 1 & 2 of the High Court (Civil Procedure) Rules 2010 and under the inherent jurisdiction of the honourable Court prayed for: 1) AN ORDER of this honourable Court granting the Defendants/Applicants leave to amend its Statement of Defence in terms of the proposed Amended Statement of Defence herein attached and marked as Exhibit A. 2) AN ORDER deeming the Amended Statement of Defence filed simultaneously with this application as duly filed and served, all filing fees having been paid. 3) Leave of this Court to file additional list of witnesses, witness deposition on oath of Defendants’ new witnesses; Elder Douglas Tekena, Surv.

Needam Yiinu and Samuel Abel Jumbo, Esq., and additional list of documents. ​4) Deeming the said additional list of witnesses, list of documents, and witness deposition filed along with this application as duly filed and served, appropriate filing fees have been paid. The Application was supported by an affidavit of Eight (8) paragraphs deposed to by one Anthony Nwankwor, a legal practitioner in the law firm of Thompson Okpoko & Partners, the solicitor to the Defendant/Applicant.

In response to the motion, the Claimant/Respondent filed a counter affidavit of Seven (7) Paragraphs deposed by one Mr. Fabian Maduakolam Iheanacho, a Claimant/Respondent on record on the 2nd day of November, 2018. The Appellants/Applicants filed a further affidavit of Eight (8) Paragraphs on the 7th day of November, 2018 together with a Reply on point of law dated on the 7th day of November, 2018.

The Appellants who are aggrieved with the ruling of 08/11/2022 dismissing the Appellants’ Motion on Notice for an order to amend Statement of Defence appealed to this Court via Notice of Appeal filed on the 19th day of November, 2018. It is anchored on two Grounds of Appeal with their particulars and reliefs sought. ​ The Record of Appeal was compiled and transmitted to the Court of Appeal on the 3rd day of December, 2018 in compliance with the Rules of Court.

The Appellants’ Brief was dated and filed on the 5th day of December, 2018 while the Respondent’s Brief of Argument was filed on the 14th day of December, 2018 together with the Notice of Preliminary Objection and the Written Address but all were deemed as properly filed and served on the 9th day of June, 2022. The Appellant filed written address in opposition to the Respondent’s Notice of Preliminary Objection and the Appellant’s Reply Brief of Argument filed on the 24th day of December, 2018.

A Preliminary Objection must be resolved first so that the Court does not embark on a futile adjudication where it does not have jurisdiction or where the matter before the Court is already dead. See Akere vs. Governor of Oyo State (2012) 12 NWLR (Pt. 1314) 240. PRELIMINARY OBJECTION The Respondent greeted the appeal with a Preliminary Objection on the ground that the appeal was filed without the leave of the High Court or the lower Court, contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999; Section 14 of the Court of Appeal Act. ​

That Record of Appeal contravenes the provisions of Order 8 Rule 7(b) & (c) and Order 10 Rule 1(c) of the Rules of the Court of Appeal Rules, 2016.

Learned counsel for the objector formulated a sole issue for determination of the objection to wit: “Whether this appeal is competent, without the leave of the lower Court or this Court or observation of Order 8 Rules 7(b) and (c) of the Court of Appeal Rules.” In arguing the above objection, the Appellants raised two issues for determination to wit: 1) “Whether the leave of this Court or the High Court is required for this appeal to be filed” 2) “Whether the Records of Appeal was properly compiled and transmitted.” A careful look at the above sets of issues shows that they are identical in substance and I therefore married them together as one issue.

The learned counsel for the Objector, Chief K. A. Mbamara, Esq., submitted that the appeal does not involve question of law alone. That the appeal is a mixture of law and fact. He placed reliance on the case of Anukam vs. Anukam (2008) 33 Nigeria Supreme Court Quarterly Law Report P. 1040 at P. 1069 and Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718. That it is the law that the Court should look at both the Grounds of Appeal and the Particulars of Error to decipher what is involved.

The learned counsel for the objector further contended that the Ground of Appeal involve a mixture of law and fact and fact will be put beyond doubt, if the Court considers the prayers sought by the Appellants, involves consideration and exercise of the discretionary powers of the Court. He cited the case of Kano Textile vs. Gloede & Hoff Ltd. (2005) 22 Nigeria Supreme Court quarterly Report P. 346 AT 354. He also submitted that the Appellants never sought and obtained the leave of Court before filing the Notice of Appeal. That this appeal is incompetent. He cited the case of Oshatoba vs.

Olujitan (2000) 5 NWLR (Pt. 655) P. 159, P. 172 Paras. B-D. The learned counsel for the objector further submitted on the issue of improper record of appeal that the Appellants did not observe Order 8 Rules 7(b) & (c) of the Court of Appeal Rules in the compilation of the Record of Appeal. That there is no schedule of fee paid, thereby breached the Order 8 Rule 7(c) of the Court of Appeal Rules. In conclusion, he urged the Court to dismiss the appeal based on the grounds in the preliminary objection.

In response to the objector’s submission, the learned counsel for the Appellants submitted that the appeal was filed pursuant to Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and it is an appeal as of right and the Appellant does not require leave of either Court below or Court of Appeal. He cited the case of Enterprise Bank Plc. vs. Dan Dollars Oil (Nig.) Ltd. (2015) LPELR-24510 (CA) Page 17, Para C-D. He further submitted that the two Grounds of Appeal are grounds of law alone.

He referred to Pgs. 87-88 of the Record of Appeal and read as follows that the above ground of appeal qualifies as a ground of law going by the definition of a ground of law by the Supreme Court in the case of Fasuyi vs. PDP (2019) All FWLR (Pt. 972) 219 AT 240, Para E; “A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed.” The learned counsel for the Appellants contended that the law is now trite that the application and non-application of undisputed facts is a question of law.

He placed reliance on the case of Arinze vs. Afribank Plc. (2000) FWLR (Pt. 6) 1032 AT 1037, Paras. B-F, Ojemen & Ors. vs. Momodu & Ors. (1983) 3 S.C 173 and U.B.A Ltd. vs. Stahlbau Gmbh (1989) 3 NWLR (Pt. 110) 374 AT 399. On the issue of improper record of appeal, the learned counsel to the Appellants submitted that the instant appeal is an interlocutory appeal and so it is the Court of Appeal Practice Direction, 2013 which should regulate it by virtue of the Provisions of Item 2(c) of the said practice Direction.

That the compilation and transmission of Records of Appeal in respect of interlocutory appeals are guided by item 6(b) and (h) of the Court of Appeal Practice Direction, 2013. He cited the case of Martin Schroeder & Co. vs. Major & Company Nig. Ltd. (1989) All NLR 201 AT 208. RESOLUTION OF PRELIMINARY OBJECTION A preliminary objection is specie of objection which if sustained will render proceedings in the matter unnecessary. See APC vs. INEC (2015) 8 NWLR (Pt. 1462) 531.

The Respondent’s Preliminary Objection seeks to terminate the Appellants’ appeal in limine that the appeal was filed without the leave of the High Court or this Court, contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999; Section 14 of the Court of Appeal Act and the Record of Appeal also contravenes the Provisions of Order 8 Rule 7(b) and Order 10 Rule 1(c) of the Court of Appeal Rules, 2016.

I have carefully perused and deeply reflected on the respective submissions of parties on this preliminary objection, I have taken a particular countenance of the submissions made by the learned counsel for the Appellants in paragraph 3.3 of their Written Address in opposition to the Respondent’s Notice of Preliminary Objection that where the grounds of appeal are grounds of law alone, a party can appeal as of right without leave irrespective of the fact that the decision appealed from is interlocutory or final. See Enterprise Bank Plc. vs.

Dan Dollars Oil (Nig.) Ltd. (2015) LPELR-24510 (CA) Page 17, Paras.

C-D where the Court of Appeal held that: “Also by the Provisions of Section 241(b) where the Grounds of Appeal involves questions of law alone, the appeal is also as of right in decisions of the Federal High Court or the High Court of a State no matter whether Courts aforementioned sit as Court of first instance or the decisions are interlocutory or final.” In the instant appeal, I have visited the Grounds of Appeal enumerated in the Notice of Appeal at Pgs. 87-88 of the Record of Appeal and I am of the opinion that the Grounds of Appeal are purely grounds of law alone, which do not require the Appellants to seek leave of either the lower Court or Court of Appeal.

The criteria for distinguishing a ground of law alone from the one of mixed law and facts has been identified and settled by the apex Court for a long time now. The established principles for the purpose were restated by Muhammad, JSC in the case of Akinyemi vs. Odu’a Invest. Co.

Ltd. (2012) 17 NWLR (1329) 209 AT 230-1, as follows: (1) “The first and foremost is for one to examine thoroughly the grounds of appeal in the case concerned to see whether they reveal a misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted. (2) Where a ground complains of a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted, it is a ground of law…” Now, the Grounds of Appeal filed by Mr. O. J.

Irerhime, Esq., learned counsel for the Appellants are as follows: GROUNDS OF APPEAL 1. The learned trial Judge erred in law in holding that the Appellants’ motion for leave to amend did not comply with the provision of Order 24 Rule 3 of the High Court of Rivers State (Civil Procedure) Rule, 2010, when:… PARTICULARS OF ERROR i. The Defendant exhibited to the motion, the proposed amended Statement of Defence as required by the rules. ii.

A list of the additional witnesses, depositions on oath of the additional witness and a list as well as copies of the documents to be relied upon which Defendants filed simultaneously with the motion on 26/10/2018, complied with the provisions of Order 24, Rules 3 of the Rules of Court. 2. The learned trial Judge erred in law and thereby occasion a miscarriage of justice in dismissing the Appellants’ motion to amend for alleged failure to comply with the provisions of the rules, rather than striking it out, when:… PARTICULARS OF ERROR i.

By Order 5 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010, such non-compliance is a mere irregularity which can be corrected. ii. By Order 24 Rule 1 of the High Court (Civil Procedure Rules, 2010, a party can amend its pleading at any time before judgment. iii. The appropriate order to be made where there is a non-compliance with the rules is that of striking out. iv. If at all, there was non-compliance with the rules, the Claimant waived it when he joined issues with the Defendants on the motion to amend without raising the issue of non-compliance. 3.

Further grounds of appeal may be filed upon receipt of the records of appeal. Flowing from the above Grounds of Appeal and Particulars therein, are purely grounds of law alone, it is complain against the error of lower Court where it was held that motion for amendment of statement of defence does not comply with the Order 24 Rule 3 of the High Court Rules, 2010, as it was stated in the ruling of the lower Court as follows: “I have perused the Defendant’s Motion on Notice and the supporting documents; it does not comply with Order 24(3) Rules of High Court, 2010.

Prayers 2, 3, and 4 are most inappropriate.” In the case of Fasuyi vs. PDP (Supra) cited by the Appellants’ counsel where the Supreme Court defined grounds of law alone as: “A ground of law alone is a complaint against the lower Court’s misunderstanding of the law applicable to the facts which are either proved, admitted or undisputed.” I hold that the Appellants’ appeal was filed in total compliance with Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

Therefore, it is an appeal as of right and the Appellants does not require leave to appeal to this Court. In the light of this, the preliminary objection which the objector raised to terminate the Appellants’ appeal in limine is bereft of any morsel of merit. Accordingly, the preliminary objection is overruled and dismissed. CONSIDERATION OF THE APPEAL During the hearing of the appeal, learned counsel for the Appellants O. J. Irerhime, Esq., adopted the Appellants’ Brief of Argument filed on 05/12/2018 and Appellants’ Reply Brief filed on 24/12/2018.

He urged the Court to allow the appeal and set aside the ruling of the trial High Court. The Respondent’s brief was settled by Chief K. A Mbamara dated 13/12/2018 and filed on 14/12/2018 but deemed argued on 09/06/2022 in the absence of the learned counsel of the Respondent after hearing notice was served on him on 7th of June, 2022 but failed to appear.

In the Appellants’ Brief of Argument, he distilled one issue for determination to wit: “Whether the learned trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of Rivers State High Court.” (Based on Grounds 1 and 2 of the Grounds of Appeal) The Respondent in his Brief of Argument crafted two issues for determination to wit: 1) “Whether the learned trial Judge is not right in dismissing the application for amendment. 2) Whether the Appellants have made out any case to warrant grant of the prayers sought herein.” A careful look at the above sets of issues shows that they are identical in substance.

Indeed, the Respondent’s two issues can be subsumed under the Appellants’ issue. I therefore marry them together as one issue framed by the Appellants’ counsel. ISSUE ONE This issue one is predicated on whether the learned trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the Provisions of Order 24 Rule 3 of the High Court of Rivers State (Civil Procedure) Rules, 2010.

The Appellants’ counsel submitted that the grant or refusal of an application for leave to amend a party’s pleading is at the discretion of the Court and it is required to be exercised judicially and judiciously. He referred to the case of Mamman vs. Salaudeen (2005) 18 NWLR (Pt. 958) 478 @ 504, Paras.

B-E thus: “Generally speaking the law is that an amendment to pleadings for the purpose of determining the real issues in controversy between the parties ought to be allowed at any stage of the proceedings, including on appeal, unless such amendment will result in injustice or surprise or embarrassment to the other party or the applicant is acting mala fide or by his blunder the applicant has done some injury to the Respondent which cannot be compensated by way of costs or otherwise.

In short, a consideration by way of application for leave to amend pleadings involves the exercise of discretion by the Court and must not only act judicially but also judiciously. The discretion is therefore to be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of the particular case.” and the case of Jessica Trading Company Ltd vs. Bendel Insurance Company Ltd. (1993) 1 NWLR (Pt. 271) 538.

He further submitted that the reason given by the Lordship for the dismissal of Appellants’ motion for amendment of their statement of defence is stated by him at page 85 of the records as follows: “I have perused the Defendants’ Motion on Notice and the supporting documents, it does not comply with Order 24(3) Rules of High Court, 2010. Prayers 2, 3, and 4 are most inappropriate.” That His Lordship went further at page 86 of the records to hold as follows: “The application not been (sic) in compliance with the Rules of Court quoted above lacks merit.

This application is a mere delay tactics to frustrate proceedings in this matter.” The Appellants’ counsel contended that the Appellants’ motion to amend its statement of defence was filed on 26/10/2018. That to comply with the Provisions of Order 24 Rule 3 therefore, applicants need to file along, a list of any additional witness to be called, together with his deposition on oath and a copy of any document to be relied upon as a result of the amendment. That he submitted that the applicant complied fully with the above requirements thus: “a.

At page 55 of the records is an “Additional list of witness”. The stamp of the registry on it shows clearly that it was filed on 26/10/2018, the same date of filing the application to amend. b. At pages 56-62 are the witnesses statements (depositions) of witnesses to be called pursuant to the amendment. They bear the stamp of the lower Court registry date 26/10/2018 as the date they were filed. c. At pages 63-70 of the records is “additional list of documents” with the listed documents attached thereto.

The list and attached documents were also filed on 26/10/2018 as the stamp of the registry on them will testify.” Counsel for the Appellants also submitted that when a Court raises a point suo motu and basis his decision on it, he is duty bound to call on the parties, especially the party who would be adversely affected by the decision to address him on the point, otherwise the decision is a nullity for violation of the party’s right to fair hearing. He cited the case of Shasi & Ors. vs. Smith & Ors (2009) 18 NWLR (Pt. 1173) 330 AT 346, Para. B-C.

He argued further that the Courts have since moved away from technicality to ensure the doing of substantial justice. He placed reliance on the case of P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809 Para. F and Afolabi vs. Adekunle (1983) NSCC, Vol. 14, 398 AT 405, lines 25-29.

In conclusion, Appellants’ counsel urge the Court to allow the appeal, set aside the decision of the Court below dated 8th November, 2018 and grant the application to amend the statement of defence. ​ In response, learned counsel for the Respondent submitted that the application of the Appellants for amendment of statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of High Court Rivers State, 2010. He referred to the case of First Bank of Nigeria Plc. vs. Abraham (2008) 12 SC (Pt. 111) 108 AT 126 lines 1-6.

That what the said Order 24(3) require is to attach and file the motion on notice together with the affidavit, proposed amendment, list of any additional witness to be called, his written statement on oath and a copy of any document to be relied upon.

That in this case, the Appellants’ motion was filed separately with an affidavit, with the proposed amended statement of defence as the exhibit, while the Amended Statement of Defence was separately endorsed, initiated and assessed by the process registrar with the other documents such as list of document and witness deposition. ​ He contended that the party must obtain order for amendment first under Order 24 of the High Court (Civil Procedure) Rules before filing the amended process.

That it is not correct for the Appellants to say that the Court raised the issue of Order 24 of the High Court rules and the inappropriateness of prayers 2, 3, and 4 suo motu. He cited the case of Dalek Ltd vs. OMPADEC (2007) 29 Nigeria Supreme Court Quarterly Report 1706 AT 1740 and Ikenta Best Ltd vs. A.G Rives State (2008) 33 Nigeria Supreme Court Quarterly Report P. 1073 AT P. 1106, Ratio 3. On issue two of the Respondent’s Brief which is predicated on whether the Appellants have made out any case to warrant grant of the prayers sought in this Court.

That the Appellant have not shown the Court that they have met the conditions for amendment to warrant asking this Court to grant their application for amendment. He cited the case of Sabrue Motors Nig. Ltd. vs. Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 270 AT 282. Learned counsel for the Respondent submitted that the Appellants applied all manner of delay to delay and frustrate the trial of the case at the lower Court. That they filed their statement of defence almost one year after they were served with the claims and sought series of adjournment. He cited the case of Okon Udo Akpan vs.

The State (1991) 5 SCNJ 1 AT 13. He urged the Court to discountenance the argument canvassed by the Appellants and resolve the issues in favour of the Respondent. The Appellants’ Reply Brief is unnecessary because the Respondent did not raise any new issue that requires to be responded to. The essence of reply brief is to give the Appellants an opportunity to react to new issues in the Respondent’s Brief of Argument. In the instance case, the circumstance does not arise and therefore it is needless to consider the reply brief. It is discountenanced. See Eromosele vs.

FRN (2018) NWLR (Pt. 1629) 60. RESOLUTION OF ISSUES Having considered the arguments of the parties for and against the issue of whether the trial Judge is right in holding that Appellants’ application for amendment of the statement of defence did not comply with the provisions of Order 24, Rule 3 of the Rules of the Rivers State High Court, 2010, I am inclined towards the argument of the Appellants that the law is trite that a party can validly amend his process before a Court at any time before judgment.

That the Court would ordinarily grant such an amendment where it would allow the Court to effectively decide the dispute between the parties; that the amendment can even be made at appeal level, even at the Supreme Court. See Abah vs. Jabusco (2008) 3 NWLR (Pt. 1065) 526 AT 545. It is pertinent to note that an amendment of pleadings will be refused where if granting of it will entail injustice to the Respondent or where the Applicant is acting mala fide or whereby his blunder has done some injury to the Respondent that cannot be compensated by costs or otherwise. See Ojah vs.

Ogboni (1976) 1 NMLR 95 AT Pg. 96 Paras. C-D. There is nothing in the instant appeal to suggest that the grant of the application of the Appellants for amendment of statement of defence will entail injustice to the Respondent. There is therefore no basis for the trial Court to refuse the application of the Appellants to amend their pleading.

I have gone through the printed Record of Appeal transmitted to this Court that the only sole reason given by the learned trial Court in his ruling delivered on 18/11/2018 for the refusal and dismissal of the Appellants’ application for the amendment of their statement of defence, as can be seen at Pages 85-86 of the record as follows: “I have perused the Defendants motion on notice and the supporting documents; it does not comply with Order 24(3) Rules of the High Court 2010.

Prayers 2, 3 and 4 are most inappropriate.” From the foregoing therefore, I am of the opinion that the refusal and dismissal of the application of the Appellants by the trial Court was not right just because of mere irregularity. See P.H.M.B vs. Edosa (2001) FWLR (Pt. 41) 1799 AT 1809, Para F.

For the avoidance of doubt, below are the words of the Supreme Court on this issue: “…this Court is replete with multiplicity of decided authorities to the effect that a Court is entitled to grant an application brought under a wrong rule of Court or statute provided there is legal basis for it.” See Maja vs. Samouris (2002) FWLR (Pt. 98) 818 (2002) 9 NSQR 546 AT 567. In fact, this Court had this to say in Uchendu vs.

Ogboni (1999) 5 NWLR (Pt. 603) 337 AT 351 (1999) SCNJ 64 thus: “It is trite that a particular rule of Court or law under which a motion is brought is generally stated in the motion paper but failure to do this will not make the motion incompetent nor the order upon which the motion is granted invalid, so long as there exist a rule of law which can back up the motion.” Per Okoro JSC (Pp. 21-25, Para. F) in the case of Bode Thomas vs.

Federal Judicial Service Commission (2016) LPELR-48124 (SC) has this to say: “…where a Court has jurisdiction to make an order, the fact the power of the Court is involved under a wrong law or rule of Court is no reason for not making the order or where it is made, it is no reason for setting it aside. See also the cases of Salawu Oke & Ors. vs. Musilim Aiyedun & Anor (1986) 2 NWLR (Pt. 23) 548, Dr. Maja vs. Mr. Costa Samouris (Supra) and Witt & Busch Ltd. vs. Dale Power Systems Plc. (2007) LPELR-3499 (SC).” Generally, Orders and Rules of Courts are made to be obeyed.

However, a Court has the power to bend its rules, where such rules will cause injustice. Denying the case/application of a party over an issue that the Court has powers brought under a wrong order or Rules of the Court will do injustice. After all, clients should not be allowed to suffer due to mistakes of their lawyers. Justice should be above mere legal jargons and technicalities. This is part of the reasons why the effect of an application brought under a wrong order or rule of Court is that the application is valid and as good as one brought under a correct order of rules of Court.

Flowing from the above, I therefore hold that this appeal is meritorious and is accordingly allowed. Appellants had prayed for the grant of the motion for amendment of the Statement of Defence dated and filed on 26th day of October, 2018. In keeping with the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 & 4 of the Court of Appeal Rules, this Court has power to give any such relief that the trial Court was expected to give, which the justice of the case demanded.

Having held that the trial Court was wrong to have refused the application for amendment of the Statement of Defence by the Applicants, it is needful to set aside the ruling of the trial Court and to replace it with an order of grant of that application. Accordingly, the ruling of the trial Court is hereby set aside and the application of the Defendants/Applicants to amend their Statement of Defence in line with the proposed Amended Statement of Defence exhibited to the motion for amendment, filed on 26/10/2018 is hereby granted.

Defendants/Applicants shall file the said Amended Statement of Defence, forthwith, at the lower Court and serve same on the Respondent who shall be free to file a reply to the Amended Statement of Defence, if any, for the hearing of the suit on the merit. Parties shall bear their respective costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abdullahi, JCA. with nothing extra to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, J.C.A. His Lordship has exhaustively analyzed the two issues involved in the appeal. I completely agree with his reasoning and conclusion. ​ The appeal is meritorious and is allowed. I abide by the consequential orders made therein.

Judgment

ELFRIEDA OLUWAYMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment of the Enugu State High Court, Enugu, delivered by Hon. Justice C. O. Ajah on April 9th, 2019 wherein the Court found in favour of the Respondent (the Plaintiff at the Court below) and granted all the reliefs sought against the Appellant (the Defendant at the Court below).

Being dissatisfied with the decision of the Court, the Appellant has approached this Court with its Notice and Six (6) Grounds of Appeal as amended dated and filed July 15th, 2020 and deemed as properly filed and served on January 12th, 2022. At the Court below the following were the reliefs sought by the Respondent: “a. Declaration that the document executed between the Plaintiff and the Defendant over sub plot 479A, First Avenue Independence Layout Enugu and whatsoever grant, rights and interests thereby assigned or transferred by the Plaintiff to the Defendant is void. b.

DECLARATION that the grant made by the Plaintiff to the Defendant by virtue of the document executed between the Plaintiff and the Defendant over Plot was voided by the letter by the Plaintiff to the Defendant Dated 1/7/2013 voiding same. c.

DECLARATION that the Defendant is enjoined by law to observe all the town planning regulations of Enugu North Local Government and Enugu State Building Regulations over Plot 479A, First Avenue Independence Layout Enugu including not erecting any structure or building therein or on any part thereof except for residential purposes and not for hotel or industrial or commercial purposes. d.

DECLARATION that the redesign, construction, reconstruction and work done by the Defendant on Plot 479A, First Avenue Independence Layout Enugu, is not in conformity with the tenor of the Document executed between the Plaintiff and the Defendant over Plot 479A, First Avenue Independence Layout Enugu. e. DECLARATION that the Plaintiff is entitled to the forfeiture of Plot 479A, First Avenue Independence Layout Enugu, to the plaintiff by the defendant. f. AN ORDER of forfeiture of Plot 479A, First Avenue Independence Layout Enugu by the defendant to the plaintiff. Or alternatively g.

PERPETUAL INJUNCTION against the defendant, his heirs, agents, workmen, assigns, servants and successors-in-title restraining them from acts of trespass on Plot 479A, First Avenue Independence Layout Enugu. h.

An Order that the Defendant removes the illegal structures built on the Plot 479A, or pay for the removal of the structures.” The brief gist of what culminated into the case of the Respondent against the Appellant is that the Respondent assigned to the Appellant its property the unexpired interest in plot 479A, First Avenue Independence Layout Enugu in the sum of N46 Million on the condition that the Enugu State Government would approve the sublease.

The property by the Appellant is said to be 80% completed as at the time of assignment and was agreed to be used only as residential which was one of the terms of the agreement between the parties. It is the position of the Respondent that the Appellant breached the term of the agreement as there was no requisite government approval before it commenced massive alteration and reconstruction of the uncompleted structures on the property. The Appellant denied any breach by the structures it was erecting.

That the structures were not hotel or industrial buildings, but it was merely completing the uncompleted structures by the Respondent with minor and negligible modifications for which it had Enugu State Government’s approval. The Respondent’s position is that the property would be devalued, it would deface and degrade the entire area and therefore sought to set aside the transfer of its interest therein to the Appellant vide its Suit at the Court below. As required by the rules of this Court, parties filed and exchanged their briefs of argument.

The Appellant’s is dated and filed on July 15th 2020, deemed as properly filed and served on January 12th, 2022 and its Reply brief dated and filed on June 21st, 2022, which were both settled by M. V. C. Ozioko Esq., who urged that the appeal be allowed. The Respondent’s dated February 17th, 2022, filed May 25th, 2022 was deemed properly filed and served on June 23rd 2022 and was settled by O. N. Enechionyia Esq., who urged that the appeal be dismissed. ISSUES SUBMITTED BY PARTIES FOR DETERMINATION APPELLANT’S FOUR (4) ISSUES “i.

Whether the non-signing of the writ of summons by the Plaintiff/Respondent or its legal practitioner rendered the instant suit incompetent and deprived the trial Court of jurisdiction to entertain same (Ground IV). ii. Whether the trial Court was right in holding that the written agreement between the Appellant and the Respondent for the transfer of interest over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3) was void for lack of Governor’s consent to the transaction (Ground 1). iii.

Whether the trial Court was right in holding that the Appellant was in breach of the express covenant in Clause 7 of the written agreement between it and the Respondent over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3) (Grounds II, III, V and VI). iv. Whether the trial Court was right in granting in favour of the Respondent mutually inconsistent reliefs and/or reliefs claimed in the alternative (Ground VI).” RESPONDENT’S FOUR (4) ISSUES “1. Failure to sign a Writ of Summons effect where raised on appeal at the first instance. 2.

Breach of contract/agreement by a party to the said agreement THE EFFECT THEREOF. 3. On whom does the duty lie to evaluate evidence and/or to determine what credible evidence is? 4. Where a trial Court grants all reliefs sought even though some reliefs were sought in the alternative, THE EFFECT THEREOF.” I have carefully considered the two (2) sets of issues by the parties and having so done, I adopt the Appellant’s issues for the just and fair determination of this appeal. APPELLANT’S SUBMISSION The learned Counsel for the Appellant Dr. M. V. C.

Ozioko submitted that the Respondent’s Suit was incompetent as the Writ of Summons therein was not signed by the Respondent’s legal Practitioner as required by Order 6 Rule 2 (1), (2) and (3) of the Rules of the High Court of Enugu State 2006. That the incompetence robbed the Court below of its jurisdiction. In support, he cited the cases of BRAITHWAITE V. SKYE BANK PLC. 2013 5 NWLR PT. 1346 1, KIDA V. OGUNMOLA 2006 13 NWLR PT. 997 337, MADUKOLU V. NKEMDILIM 1962 2 NSCC 374 and MACFOY V. UAC CO. LTD. 1962 AC 152.

For that reason, he submitted that the entire proceedings culminating in the judgment of the Court was nullified and should be set aside and cited in support the cases of ADEFARASIN V. DAYEKH 2007 11 NWLR PT. 1044 89, SLB CONSORTIUM LTD. V. NNPC 2011 19 NWLR 317 and SAKA BURAIMOH V. TUNDE ALEJO 2014 LPELR 23203 CA. He submitted that the Respondent failed to specifically plead the ground that the contract between the parties was void as prescribed by Order 15 Rule 7 (2) of the Rules of the Court and therefore the Court was wrong to have concluded that it did.

In support, he cited the cases of AJAYI V. ADEBIYI 2012 ALL FWLR PT. 634 1 and ADIGUN V. AYINDE 1993 8 NWLR PT. 313 576. He contended that the agreement was in anticipation that the Governor’s consent thereto would be obtained and so the agreement could not be void particularly as the consent of the Governor was never applied for by the Respondent and denied. That even when the Suit was filed in 2013, by 2015 the Respondent was still making effort to secure the consent or approval of the Government.

He argued that by the provision of Section 22 (2) of the Land Use Act there must exist some form of agreement before the Governor’s consent can be sought in that regard and cited the case of AWOJUGBAGBE LIGHT INDUSTRIES LTD. V. CHINUKWE & ANOR. 1995 4 NWLR PT. 390 379. That the worst scenario is that the document between the parties was inchoate until consent is obtained or denied and cited the cases of AWOJUGBAGBE LIGHT INDUSTRIES LTD. V. CHINUKWE supra, OKONKWO V. CCB NIG. PLC 1997 6 NWLR PT. 507 408 and DOHERTY V. IGHODARO 1997 11 NWLR PT. 530.

Further that by virtue of Section 169 of the Evidence Act, the Respondent was estopped from contending that Exhibit 3, the agreement between the parties was void as it behoved it to apply and obtain the Governor’s consent and cited in support the cases of ADEDEJI V. NATIONAL BANK OF NIGERIA 1989 1 NWLR PT. 96 212 and UGOCHUKWU V. CCB NIG. LTD. 1996 6 NWLR PT.456 524. Therefore, the Court was wrong to have held that the transaction in Exhibit 3, was void.

It was also argued for the Appellant that there was no breach of the Covenant in Clause 7 as it was merely completing the uncompleted structure built by the Respondent with minor and negligible amendments for which it secured approval of the relevant government authority as contained in Exhibits 5A and 5. And that the finding to the contrary by the Court was perverse. He argued that for the Court to have gone ahead to find occurrence of breach after having held that Exhibit 3 was void is a clear case of approbation and reprobation.

He urged that the verdict of the Court be set aside as it is absurd. He asserted that there was no admission by the Appellant in paragraphs 8 and 12 of its amended Statement of Defence that it was turning the property into a hotel. Consequently, the Court’s conclusion is totally extraneous and out of speculation, without evidence in support. He submitted that the terms of Exhibit 3, the agreement, required that the property be used for residential purposes and there is nothing therein that restricted size or number of rooms or provision of other facilities on the property.

Further that there was no evidence to the effect that the government’s approval to the Appellant for the reconstruction was wrongful or invalid. The learned Counsel argued that the two (2) sets of the Respondent’s claims are in the alternative and therefore the grant of one completely excludes the other. Further that, given the inconsistent findings and holdings of the Court, all the reliefs granted by the Court cannot stand and should be set aside. In conclusion, he urged in consequence that this appeal be allowed and the judgment at the Court below set aside.

RESPONDENT’S SUBMISSION The learned Counsel for the Respondent, Mr. O. N. Enechionyia Esq., submitted that the Courts have moved away from the position that a suit is rendered nugatory because the legal practitioner failed to sign the writ as was held under BRAITHWAITE V. SKYE BANK PLC supra and rather now posits the contrary as held by the apex Court in the case of AJIBODE & ORS V. GBADAMOSI 2021 LPELR-53089 SC. Therefore the Appellant can no longer raise the issue at this appellate stage having acquiesced to the proceedings all through the trial at the Court below, he added.

It was argued that the agreement between the parties, Exhibit 3, the Deed of Assignment which was entered before the consent of the Governor was obtained, is not unknown to law and in support cited the case of AWOJUGBAGBE LIGHT INDUSTRIES LTD. V. CHINUKWE & ANOR. supra. He asserted that from the evidence before the Court, the Governor’s consent was sought but refused as contained in the testimony of the PW1 under cross-examination because the Appellant was in violation of the purpose Clause. In support, he cited the cases of MINAJ HOLDINGS LTD. V. AMCON 2015 LPELR-24650 CA, OLADEJO V.

NIGERIAN BREWERIES PLC 2007 LPELR160 and WEST AFRICAN PORTLAND CEMENT PLC. V. ODUNTAN & ANOR 2007 LPELR 9046. The purpose Clause as contained on page 4, paragraph 7 of Exhibit 3, the Deed of Assignment is that breach of covenant/contract is a ground for forfeiture and cited in support the case of UDE V. NWARA 1993 2 SCNJ 47. The Court was therefore correct when it held that the transfer of interest to the Appellant was void for lack of the consent of the Governor. The learned Counsel asserted that the Court carefully evaluated the evidence presented before reaching its conclusion.

Therefore, the Court did not err in its duty neither did it reach a perverse judgment and cited in support the case UMAR V. BAYERO UNIVERSITY 1988 4 NWLR PT. 86 85. With regard to the grant of all the reliefs in favour of the Respondent including those in the alternative, it was argued that the reliefs were not and could not be mutually inconsistent in any manner as the Court found the agreement between the parties void. He argued further that the Appellant failed to show that he suffered any wrong by the Court’s conclusion and in support cited the case of OGAR V. IGBE 2019 9 NWLR PT. 1678 543.

In conclusion, he urged that the appeal be dismissed as without merit. THE POSITION OF THE COURT I shall now proceed to consider the Appellant’s Issues already adopted in the determination of this appeal having very carefully gone through all the processes as well as the Record, before this Court. The issues which will be considered together are hereunder reproduced for ease of reference as follows: “i.

Whether the non-signing of the writ of summons by the Plaintiff/Respondent or its legal practitioner rendered the instant suit incompetent and deprived the trial Court of jurisdiction to entertain same. ii. Whether the trial Court was right in holding that the written agreement between the Appellant and the Respondent for the transfer of interest over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3) was void for lack of Governor’s consent to the transaction. iii.

Whether the trial Court was right in holding that the Appellant was in breach of the express covenant in Clause 7 of the written agreement between it and the Respondent over Plot 479A, First Avenue Independence Layout Enugu (Exhibit 3). iv.

Whether the trial Court was right in granting in favour of the Respondent mutually inconsistent reliefs and/or reliefs claimed in the alternative.” The Appellant before this Court has raised the issue of non-signing of the Respondent’s Writ of Summons either by the Respondent who was the Plaintiff at the Court below or a legal practitioner according to Order 6 Rule 2(1)(2) and (3) of the Civil Procedure Rules of Enugu State of 2006. He therefore submitted that the writ was incompetent and the Court was thereby robbed of its jurisdiction.

Consequently, the Respondent’s Suit was incompetent, the entire proceedings nullified and the judgment should be set aside he added. In considering this issue, it is pertinent to refer to relevant provisions of the Enugu State High Court Civil Procedure Rules 2006. Order 5 on Non-compliance is relevant.

I shall hereunder reproduce Orders 6 and 5 of the Rules thus: Order 6 Rule 2(1), (2) and (3) state as follows: “ISSUE OF ORIGINATING PROCESS 2. 1) The Registrar shall seal every originating process, whereupon it shall be deemed to be issued. 2) A Plaintiff or his Legal Practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the processes as there are defendants to be served plus extra copies for the Court and registry use. 3) Each copy shall be signed by the Legal Practitioner or by a plaintiff where, if a natural person, he sues in person, and shall be certified after verification by the registrar, as being a true copy of the original process filed.” Order 5 thereof with the title Effect of Non-Compliance.

“EFFECT OF NON – COMPLIANCE 1. Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein. 2.

The Court may on the ground that there has been such a failure as mentioned in Rule 1, and on such terms as to costs or otherwise as it, thinks just, set aside either wholly or in part, the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may make an order to rectify or regularize the proceedings, and may allow such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit. 3.

An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings after becoming aware of the irregularity.” It is on record that the Appellant filed its statement of defence in response to the Respondent’s claim, participated throughout to address stage and thereafter to the time judgment was delivered therein.

The Appellant did not raise any issue against the proceedings but went ahead with the trial and took “fresh step in the proceedings after becoming aware of the irregularity” only for it to now complain for the first time on appeal, after judgment was given in favour of the Respondent. In my considered view and humbly, based on aforestated provisions of Order 5, particularly Subrule (3) in pursuit of substantial justice, notwithstanding the non-signing of the Respondent’s process, the Appellant had bound itself to the proceedings having gone ahead with it.

It is now rather too late in the day for the Appellant to seek to nullify all that transpired at the Court below. One is instructed and fortified in this position given the firm and settled stance of the Courts, always demonstrated by the apex Court that, Courts pursue to do substantial justice and not technical justice. It is for the forgoing reasons that one finds against the Appellant on the first Issue which is consequently resolved in favour of the Respondent.

In the evaluation of the evidence presented, the Court below made the following findings along with which I shall consider Issues ii, and iii. ​ It is pertinent to note that from the Record, both parties accepted that Exhibit 3, the Deed of Assignment was binding on them, the contract as it were between both parties.

Contained in Exhibit 3, is Clause 7 which is referred to as the purpose clause and it provides thus: Clause 7 “The Assignee covenants that all that development on the property shall be for residential only and any violation of this purpose clause shall render this deed void.” The foregoing was agreed by both parties when they entered into the agreement. The Respondent’s Suit was hinged on the allegation or complaint that there was breach of the aforestated covenant by the Appellant.

The Appellant denied any breach and claimed that it was only carrying out or effecting minor and negligible alterations to the 80% uncompleted structures on the property in question. The Court found contrary to the position of the Appellant from paragraphs 8 and 12 of the amended statement of defence and Exhibits 5 and 5A the building plan approved for the Appellant by the Enugu Capital Territory Development Authority.

It stated thus on page 255 of the Record: “The Court cannot be deceived by the captioning of Exhibit ‘5A’ as PROPOSED AMENDMENT SCHEME OF AN APPROVED RESIDENTIAL SERVICE APARTMENT.” From the record and as contained in Exhibit 5A, the Court found that the existing structure by the Respondent showed the ground floor with a verandah, car port, entrance lobby, one large living room, a private lounge, a bar and lounge, a dinning room, a kitchen, two guest rooms and two toilets/bathrooms, the first floor has four 4 bedrooms, one master bedroom, upper sitting room, one study room and terrace with four balconies and three toilets/bathrooms attached to the rooms.

The amendment or alteration shows the “ground floor has a big hall, many rooms, many parlours, verandah, foyer, offices, reception, nooks etc. The first floor of the renovated edifice will have more than 30 rooms named differently and each room is ensuite, so many suites of a bedroom and a parlour with toilets and baths etc. …the second floor plan also with rooms and other facilities.” See page 256 of the Record. According to the Court as stated on page 256 of the Record: “Such alterations cannot be “minor and very negligible” as stated by the defendant.

The alterations are monumental and massive. It cannot be for residential purpose. It is meant for hotel or commercial purposes.” The Court therefore found and correctly in my humble view thus on page 259 of the Record: “I am therefore satisfied that the defendant is in breach of the express covenant contained in Clause 7 at page 4 of Exhibit ‘3’. Exhibit ‘3’ is the Deed binding the parties to this suit.

The trite law is that parties are bound by the terms of their agreement so long as it is not fraudulent or as a result of misrepresentation as to material fact.” Having found that the Appellant was in breach of Clause 7, the Court further found thus and correctly in my view with regard to Exhibit 3, the Deed of Assignment between the parties on page 260 of the Record: “…That being the case, Exhibit ‘3’ has become dead instantly. It has been rendered void on the agreement of the parties by the conduct of defendant, and the Court has no option but to pronounce so.

Exhibit ‘3’ is hereby declared void and of no effect whatsoever.” The finding of the Court accords with the terms of the agreement with which both the Appellant and the Respondent had bound themselves with respect to the purpose Clause which states that “any violation shall render this deed void”. Therefore, what the Court held in that regard was not outside the contractual terms of the parties.

It was clear and not in doubt from the record herein that as between the parties, what was assigned to the Appellant was the unexpired residue of the Respondent’s interest in the property in issue, plot 479A First Avenue Independence Layout, Enugu. In my view and humbly from both sides there is no doubt that they were both aware of the fact that perfection of the Assignment was conditional and dependent on the consent of Enugu State Governor and that it was the responsibility of the Respondent to pursue and obtain it.

The relevant Sections of the Land Use Act are Sections 22 (1) and 26 in respect of the parties agreement, liabilities and entitlement.

Section 22 (1) states as follows: “22 (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by assignment, mortgage transfer of possession, sublease or otherwise however, without the consent of the Governor first had and obtained.” “Section 26 Any transaction or any instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”

The Respondent was rightly referred to as the holder of the statutory right of occupancy over plot 479A. The Court found that the Respondent’s alienation of same without the consent was illegal as it was unlawful under the above quoted Section 22 (1) of the Land Use Act.

It is necessary to state that the Court’s analysis and evaluation was correct to the effect that Exhibit 3, the Deed of Assignment can be taken to meet the provision of Section 22 (2) of the Land Use Act, which allows the holder of statutory right of occupancy to enter into some form of negotiation, which may end with a written agreement for presentation to the Governor for his necessary consent, but such agreement as Exhibit 3 would not become effective, until the consent of the Governor was obtained.

Whereas herein, the Court found that there was no Governor’s consent in respect of the Assignment to the Appellant of plot 479A, it therefore correctly held as follows on pages 267-269 of the Record: “In the circumstance of the instant case, in the absence of the consent of the Governor of Enugu State being given to the plaintiff to assign the land in dispute, that is, plot 479A First Avenue, Independence Layout, to the defendant, I hold that the assignment vide Exhibit ‘3’ is invalid, null and void and did not transfer any title to the defendant.

The title to the land still resides in the plaintiff.” It therefore concluded correctly thus: “The combined effect of these two situations is that no matter how one looks at it, the Exhibit ‘3’ is null and void. It is either null and void by virtue of the operation of Clause 7 at page 4 of Exhibit ‘3’ in that the defendant has breached that of provision or that Exhibit ‘3’ is null and void under Sections 22 (1) and 26 of the Land Use Act 1978 because the Governor’s consent have (sic) not been obtained.

Since this is the situation, the Court is satisfied that the plaintiff have (sic) proved her (sic) case and is entitled to judgment. On the whole, I hold that the plaintiff have (sic) proved his case and is entitled to the reliefs it is claiming in this suit …” See pages 269-270 of the Record.

It is important to note that the finding of the Court on page 262 of the Record where it held thus: “I therefore hold that the fact of lack of Governor’s consent was sufficiently pleaded by the Plaintiff and sufficiently admitted by the defendant, and so was properly raised and canvassed by the Plaintiff.” is supported by the pleadings of both parties as contained in the Record. On the grant of all the reliefs sought including those in the alternative by the Respondent, issue iv, one is unable to agree with the position of the Court in that regard.

The Respondent sought reliefs a-f in the main and in the alternative, reliefs g and h. The law is trite that where the main claim of a party succeeds and is granted by the Court, there is no need to consider any alternative claim thereto. See the case of XTOUDOS SERVICES NIG. LTD & ANOR V. TAISEI WA LTD & ANOR. 2006 LPELR 3504 SC. In consequence, only the main reliefs granted shall stand, the Court was wrong to have gone ahead to grant the alternative reliefs. In the light of the foregoing, issues i, ii and iii are resolved against the Appellant save Issue iv in his favour.

In the result, this appeal succeeds in part as only the main reliefs a, b, c, d, e and f granted to the Respondent are affirmed. Reliefs g and h in the alternative are set aside as they should not have been granted. The judgment of the Enugu State High Court delivered by Hon. Justice C. O. Ajah on April 9th, 2019 is hereby affirmed save reliefs g and h which are hereby set aside.

HARUNA SIMON TSAMMANI, J.C.A.: I read in draft the judgment delivered by my learned brother, E. O. Williams-Dawodu, JCA. Having carefully studied the evidence on record and the submissions of learned counsel on this appeal, I agree that this appeal be allowed in part. On that note, I hereby affirm the judgment of the Enugu State High Court of Justice delivered on the 9th day of April, 2019.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance the draft copy of the leading judgment just delivered by Lord, Elfrieda Oluwayemisi Williams-Dawodu, JCA. I have gone through the reasoning and the conclusions reached therein to the effect that the appeal succeeds in part, and ought therefore, ought to be allowed in part. I agree! My Lords, I shall by way or contributing to the analysis in the leading judgment just say a word or two. I am aware that in law competence is fundamental to adjudication by a Court of law.

However, a Court of law must at all times and in all cases prefer and administer substantial justice over and far above mere technicality. Nevertheless, I have no doubts in my mind that adherence to technical justice may still have its adherents and apostles, but still the era of technical justice riding roughshod over and above substantial justice is long gone in our Courts.

Nowadays, the Courts have charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king and I choose to join my learned brother in the leading judgment to do substantial justice in this appeal to parties.

Decided authorities on this position of the law are legion and are replete in the law Reports, but suffice to refer to the following authorities, most of which decisions are my own decisions, since charity should begin at home. See Ganiyu V. Oshoakpemhe & Ors (2021) LPELR – 53222 (CA) AT Pp. 111 – 113, per Sir Biobele Abraham Georgewill JCA; Ikoya Properties V. Sowemimo & Ors (2016) LPELR-42238 (CA) pp. 35 – 37, per Sir Biobele Abraham JCA; Union Bank (Nig) Plc V. Koleoso (2017) LPELR – 42723 (CA) (g) pp. 26 – 27, per Sir Biobele Abraham Georgewill JCA; African Songs Limited & Anor V.

King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365 – 366, per Sir Biobele Abraham Georgewill JCA; Andrew Ize Iyamu V. Oshoakpemhe & Ors (2021) LPELR – 53228 (CA) pp. 119 – 121, per Sir Biobele Abraham Georgewill JCA. It is for the above comments of mine and for the fuller reasons set out in the leading judgment that, I too hold that the appeal succeeds in part and therefore, ought to be allowed in part. I therefore, join my learned brother in the leading judgment to allow the appeal in part.

I shall abide by the consequential orders made in the leading judgment, including the order as no cost.

Judgment

IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Judgment) : This appeal is against the Judgment of the High Court of Imo State in Suit No. HON/36/2012 delivered by Hon. Justice T. E. Chukwuemeka Chikeka on the 18th March, 2013. BRIEF FACTS OF THE CASE The Claimants commenced this action through originating summons against the Defendant on 8/10/2012 seeking the following reliefs- 1.

A DECLARATION that in view of the non-compliance with the mandatory provisions of CHAPTER 28 OF THE CONSTITUTION OF ABBA DEVELOPMENT UNION, 1999 it is unconstitutional, unlawful, unauthorized, null and void for the 1st defendant to purportedly amend the said Constitution to enact the Constitution of Abba Development Union, 2007. 2.

A DECLARATION that the enactment of laws governing the traditional ruler of Abba autonomous community, in deference to the laid down provision of the law, separating Town Union Constitution from that of the autonomous community, and furthermore, without the input of the traditional ruler, is unconstitutional, unauthorized, null and void. ​3. An Order of Court setting aside anything done under the said constitution of Abba autonomous community, 2004, including the purported general election of the Union conducted on the 31st of December, 2009.

At the end of the hearing, the Judge granted reliefs 2 and 3 of the claimants and refused to grant relief 1. Dissatisfied with the judgment the Defendant (Appellant) filed a Notice of Appeal on 6/5/2013. The Record of Appeal was transmitted on 17/01/14 and deemed on 3/3/14. ISSUES FOR DETERMINATION The Appellant’s brief of argument settled by John I. Nwoka Esq. was filed on 3/3/14 wherein the Appellant distilled five issues for determination as follows: a. WHETHER OR NOT ABBA DEVELOPMENT UNION WAS A NECESSARY PARTY IN THIS SUIT. b.

WHETHER OR NOT IN VIEW OF THE JUDGMENT OF 18TH MARCH 2013, WHETHER AN ORIGINATING SUMMONS WAS AN APPROPRIATE PROCEDURE FOR THE COMMENCEMENT OF THIS SUIT. c. WHETHER OR NOT THE LEARNED TRIAL JUDGE BREACHED THE APPELLANT’S RIGHT TO FAIR HEARING WHEN HE SUO MOTU RAISED THE ISSUE OF APPELLANT’S CONSTITUTION NOT HAVING CREDIBILITY AND BASED HIS DECISION TO GRANT RESPONDENTS’ CLAIM ON THAT POINT WITHOUT CALLING ON THE PARTIES AND OR APPELLANT’S COUNSEL TO ADDRESS HIM ON THE POINT. d.

WHETHER HAVING REGARD TO THE CONTENTS OF AFFIDAVIT OF THE PARTIES AND THE DISCOUNTENANCE OF EXHIBIT ‘F’, WAS THE TRIAL JUDGE RIGHT IN BASING HIS JUDGMENT ON FAILURE OF APPELLANT TO COMPLY WITH THE CONTENTS OF SAID EXHIBIT ‘F’ AND WAS THE LEARNED TRIAL JUDGE RIGHT IN REACHING THE CONCLUSION THAT APPELLANT’S CONSTITUTION LACK CREDIBILITY. e. WHETHER OR NOT THE SUIT WAS COMPETENT HAVING BEEN COMMENCED ON A NON-EXISTING LAW. The Respondents brief of argument settled by L. C.

Alinor (Jnr) Esq. was filed on 25/4/14 wherein a lone issue for determination of this Court was distilled and that is- “Whether the Respondents proved their case at the lower Court, and thus entitled to judgment against the Appellant”. I shall consider the submissions of both Counsel on all the issues as distilled by them and hereafter make by findings thereon. SUBMISSION OF THE APPELLANT ISSUE ONE- WHETHER OR NOT ABBA DEVELOPMENT UNION WAS A NECESSARY PARTY IN THIS SUIT.

Learned Counsel submitted here that failure to sue Abba Development Union (ADU) and its representatives rendered the action incompetent as there was no juristic person sued before the Court in the circumstances. He relied on the Supreme Court case of Onuekwusi v. R.T.C.M.Z.C. (2011) 6 NWLR pt. 1243, pg. 341 at 359-360 paragraphs C – F. Counsel also cited Ezionwu v. Egbo (2006) 5 NWLR, part 973, pg. 316 at 327 paragraphs C – E. Thus, Counsel was of the view that not suing the Union renders the suit incompetent.

ISSUE TWO- WHETHER OR NOT IN VIEW OF THE JUDGMENT OF 18TH MARCH 2013, AN ORIGINATING SUMMONS WAS AN APPROPRIATE PROCEDURE FOR THE COMMENCEMENT OF THIS SUIT. Here Counsel contends that originating summons ought not be used to commence the action, particularly in the circumstances where facts are in dispute. Counsel described such proceedings as hostile proceedings and that originating summon is not suitable for commencement of action thereon. He cited Owuama v. Obasi (2011) 1 NWLR pt. 1228 pg. 431 at 444 para C.

He added that the trial judge having found the suit to have been wrongly commenced by originating summons was to order pleadings so that the case can be heard on its merit. He cited Adeyelu II v. Ajangugbade (2007) 14 NWLR part 1053, pg. 1 at 8 para. D and Osunbade v. Oyewunmi (2007) ALL FWLR pt. 368, pg. 1004.

ISSUE THREE- WHETHER OR NOT THE LEARNED TRIAL JUDGE BREACHED THE APPELLANTS RIGHT TO FAIR HEARING WHEN HE SUO MOTU RAISED THE ISSUE OF THE APPELLANT’S CONSTITUTION NOT HAVING CREDIBILITY AND BASED HIS DECISION TO GRANT RESPONDENTS CLAIM ON THAT POINT WITHOUT CALLING ON THE PARTIES AND OR APPELLANT’S COUNSEL TO ADDRESS HIM ON THE POINT.

On the issue of credibility of the Constitution, it was neither raised by the Appellant nor the Respondent and that the trial judge raised the issue suo motu and did not afford the parties opportunity to say anything on it and he concluded that the Constitution made by the Appellant lacked credibility. This breached the Appellant’s right to fair hearing. He relied on Uzoho & Ors. V. National Council on Privatization (2007) ALL FWLR part 394 pg. 370 at 387 paragraphs F. ISSUE FIVE WHETHER OR NOT THE SUIT WAS COMPETENT, HAVING BEEN COMMENCED ON A NON-EXISTING LAW.

Counsel on this submitted that the finding of the trial judge at pages 223-226 of the Record of Appeal held thus – “The implication of the above is that what exists now as the present day Abba is existing without a Constitution and I so hold”. And that the Respondents’ relief 1 in the Originating Summon states; “1.

A DECLARATION that in view of the non-compliance with the mandatory provisions of CHAPTER 28 OF THE CONSTITUTION OF ABBA DEVELOPMENT UNION, 1999 it is unconstitutional, unlawful, unauthorized, null and void for the 1st defendant to purportedly amend the said Constitution to enact the Constitution of Abba Development Union, 2007.” Counsel therefore submitted that the Constitution of Abba Development Union having been rendered ineffective cannot form the basis of any judicial consideration by the lower Court. He relied on Adesanoye vs.

Adewole (2006) 14 NWLR Pt. 100 pg. 242 at 271 paragraphs E – F. Counsel went further to submit that where a plaintiff brought an action under a non-existing law, the action should be declared incompetent. See Mudashiru v. Persons Unknown, (2006) 8 NWLR pt. 298 pg. 267 at 279 para A – B.

SUBMISSION BY THE RESPONDENTS Learned Counsel for the Respondents distilled a single issue for determination viz:- “Whether the Respondents proved their case at the lower Court, and thus entitled to judgment against the Appellant.” I find it expedient to consider the response of the Respondents on the issues raised by the Appellant’s Counsel which according to the Respondents have not in anyway countered their proof of the case before the Court.

On the first issue, Counsel submitted in response to the Appellant’s submission that the Abba Development Union is not a necessary party to the case as failure to join a necessary party is an irregularity which does not affect the competency or jurisdiction of the Court to determine the matter before it. See Okoye v. Nig. Cons. & Furniture (1991) 6 NWLR pt. 199 pg. 501 at 532. Counsel also cited other cases on joinder or non-joinder of parties in a suit for instance – Uku vs. Okumagba (1974) 1 ALL NLR 475 at 495.

More so the Respondents were not contesting that the Union committed any act against the Respondents, but that the Appellant using his position as the President General of ADU was on a frolic of his own in enacting a constitution for the community when he had no authority to do so. On issue two as to the proceedings being ‘hostile proceedings’, counsel submitted that he who asserts has the burden of proving same and must fail if he does not succeed. He referred to Cardoso V. Daniel (1986) 2 NWLR Pt. 200 pg. 1 at 36.

He submitted that from the affidavit of the parties it is not disputed that the Appellant enacted a Constitution for the ADU and the Abba Autonomous Community. And that all the issues raised are issues of law which could be taken by way of originating summons, which as was held by the Supreme Court is indeed for construction and interpretation of Statutes. See NBN V. Alakija (1978) 9-10 SC, 59 at 71; Unilag vs. Aigoro (1991) 3 NWLR, pt. 179, 376 at 383.

Counsel submitted that originating summons was the proper procedure in the circumstances. ​As to issue three on fair hearing, counsel submitted that the trial judge did not breach the Appellant’s right to fair hearing as he never suo motu raised the issue of credibility of the Appellant’s Constitution. He submitted that it was indeed the Respondents that raised the issue of credibility of the Appellant’s Constitution in the 2nd relief of their originating summons. See page 5 (Para.

F – P) of the Originating Summons and para. 3 d and g of the better and further affidavit in response to the defendants’ (appellants’) counter. He added that the Appellant ought to have adduced credible evidence to show that he had the mandate of the ADU and or the Abba Autonomous Community which the 1st Respondent is the traditional ruler of to enact a constitution governing the ADU and the autonomous community. The Appellant failed to do this and cannot therefore accuse the trial judge of not giving him fair hearing.

And finally, on issue five which takes care of issue four, counsel submitted that the suit was competent going by the claim before the lower Court. He submitted that success under one head of claim is not affected by failure under another head of claim. And that the 2nd relief having been upheld by the lower Court, the issues between the parties had been determined. And that on the authority of Adesanoye v.

Adewole (Supra) at pg. 271, since the Government white paper Exhibit ‘F’ had not been revoked by the Government or any Court of competent jurisdiction, the lower Court was right to have set aside the 2007 Constitution enacted by the Appellant as offending this law. Counsel finally submitted that the Appellant having contravened the Government white paper Exhibit ‘F’, which is an extant law of Imo State, clothed his actions with illegality as such his actions should be set aside for being a nullity. Counsel urged the Court to dismiss the appeal.

Resolution Issue One On the issue of a necessary party, I am fortified by the holding of the judge at page 224 of the Record of Appeal where he held thus- “The defendant raised the issue of the necessary parties not before the Court. There is evidence before me that the defendant is the President General of Abba, though he was sued in his personal capacity due to the fact that the claimants perceived that the Constitution of Abba Development Union is well aware of this suit.

It has been severally held that a party who knows that he will be or is likely to be affected by the decision of a Court and watches while the matter goes on without applying to be joined will be bound by the decision of that Court.” ​What more, the Appellant was the President of the Union and stood idle by without taking any necessary step to join the union as a party in the action cannot now turn round to make a case for the Union as a necessary party. Issue one is resolved against the Appellant.

Issue Two I find here that in view of the disputes between the parties regarding the Constitution of the ADU and Abba Autonomous Community, originating summons is the best form of procedure to be adopted. And as rightly submitted by Counsel for the Respondents that the Appellant did not raise the issue of impropriety of commencing this action by originating summons at the lower Court but is raising it for the first time at the Appellate Court. This is not allowed save on exceptional grounds. See Sken Consult vs. Ukey (1981) 1 SC 4 at 10.

Above all, it was held by the apex Court that where a wrong procedure has been used in commencing an action, and was not objected to by the opposite party as in this case, the proceedings based on it is valid. See Adebayo v. Johnson (1969) 1 ALL NLR, 176 at 190 – 191.

Issue two is resolved against the Appellant. ​Issue Three As to the credibility of the Appellant’s Constitution this is one of the reliefs sought by the Respondents and throughout the length and breadth of the judgment of the trial Court, I have not seen where the judge raised the issue suo motu without affording the parties an opportunity to state their position. The Appellant indeed failed to show the mandate given to him to enact a new constitution for ADU and that being the case, his argument cannot stand in the circumstances that he was denied fair hearing.

Issue three is equally resolved against the Appellant. Issue Five Issue four is subsumed in issue five for purpose of resolving the impasse and this relates to the action of the Appellant of enacting a Constitution for ADU and Abba Autonomous Community in clear violation of Exhibit ‘F’ an extant law of Imo State which still has the force of law having not been revoked or declared null and void by any competent law, it only goes to show that the Appellant acted illegally and therefore the so called Constitution is a nullity and must be set aside as rightly done by the trial judge.

The holding of the trial judge in the circumstances is apt and I see no reason to depart therefrom. Accordingly, I find and hold that the suit is competent having been commenced by originating summons and the action of the Appellant of enacting a Constitution is null and void. Issue five and also issue four are resolved against the Appellant as well. In the result, the issues raised by the Appellant in this appeal having been resolved against him, the appeal is baseless and must fail. I accordingly hereby dismiss same. The judgment of the lower Court in Suit No. HOW/36/2012 is affirmed.

Costs of N100,000.00 (One Hundred Thousand Naira only) are awarded against the Appellant.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the leading judgment just delivered by my brother, IBRAHIM W. JAURO, JCA. I agree with his reasoning and conclusions. I dismiss the Appeal. I abide by the consequential order made as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, IBRAHIM W. JAURO, JCA, where the facts and contentions of Counsel to the parties have been set out and determined. ​It is pertinent to state, on the contention of the Appellant that this suit was commenced using a wrong procedure, that is, by Originating Summons rather than via a Writ of Summons, that a party who condoned an irregularity at the trial, waives his right to object or protest against the irregularity or process and cannot be heard to do so on appeal.

See – Bureau of Public Enterprises v Dangote Cement Plc (2020) 5 NWLR Part 1717 Page 322 at 347-348 Para G-A per Eko JSC. Furthermore, an issue, as in the instant case, which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. A fresh issue cannot be taken up on appeal without the leave of the Court. See Idufueko v.

Pfizer Products Ltd (2014) 12 NWLR part 1420 Page 96 at 122 Para A per Galadima JSC; Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC. Suffice it to say that where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, an Appeal Court will not disturb the findings arrived at by the trial judge – Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC.

As held by my learned brother and which I agree with, the lower Court rightly evaluated the evidence before it. There is thus no reason to interfere with the decision of the lower Court. ​For these and the fuller reasons given by my learned brother, I also find this appeal without merit and dismiss it. The judgment of the lower Court delivered by T. E Chukwuemeka Chikeka in HON/36/2012 is accordingly affirmed. I subscribe to the orders for costs made by my learned brother.

Judgment

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): By this application dated the 9th of August, 2021, and filed on the 13th of September, 2021, applicant seeks for the following reliefs: – i. An order of this Honorable Court granting leave to the Applicants to appeal as interested parties against the judgment delivered on 19th July, 2010 but signed on 14th October, 2010 by the High Court of the Federal Capital Territory, Abuja Judicial division Honorable Justice A. A. I. Banjoko in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors. ii.

AND for such further or other orders as this Honorable Court may deem fit to make in the circumstances. ​The grounds for the application are as follows:- ​i. The applicants became aware of the judgment delivered on 19th July, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Or’s. By the Honorable Justice A. A. I.

Banjoko of the High Court of the Federal Capital Territory Abuja judicial division in December, 2010 when the 1st Respondent sought to execute the judgment and the Applicants immediately filed a Motion on Notice on 16th December, 2010 to set aside the aforesaid judgment. ii. In its ruling delivered on 12th April, 2011, the lower Court granted the reliefs sought by the Applicants and set aside the judgment delivered on 19th July, 2010 but signed on 14th October, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors. iii.

The 1st Respondent thereafter appealed to this Honorable Court in appeal no. CA/A/405/2011: Dr. Alex U. Akpa v. M. Audu-Bida Mohammed & 3 Ors. Against the aforesaid ruling. iv. The decision of this honorable Court in the said appeal no: CA/A/405/2011 Dr. Alex U. Akpa v. M. Audu-Bida Mohammed & 3 Ors. And consequently, set aside the ruling of the lower Court delivered on 12th April, 2011. v.

The decision of this Honorable Court in the said appeal no: CA/A/405/2011 was that the lower Court was functus officio and lacked the jurisdiction to entertain the Applicant’s motion on notice dated 16th December, 2010 which was granted on 12th April, 2011. vi. Based on the aforesaid decision of this honorable Court, the applicants, through their erstwhile counsel, Femi Akinbunu, Esq., applied to this honorable Court for leave to appeal on 17th June, 2013 but due to incompetence of the application, same was withdrawn and accordingly struck out on 25th February, 2014. vii.

The aforesaid erstwhile counsel filed another application on 23/06/2015 before this honorable Court but it suffered the same fate on 12th April, 2016 to take over the prosecution of their appeal. viii. The applicants briefed the firm of F. O. Fagbohungbe & Co. in March 2021. ix. While making efforts to get the relevant Court processes relating to the matter, the Judiciary Staff Union of Nigeria (JUSUN) embarked on nationwide strike that lasted over 2 months. x.

The applicants’ new counsel was not able to obtain the relevant processes until 25th June, 2021 and immediately commenced the preparation of the application afterwards. xi. The applicants are the bona fide owners of the property at No. 3 Kabwa Close off Constantine Street, Wuse zone 4, Abuja, the subject matter of suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors. But were not joined all through the proceedings at the lower Court. xii. The applicants are necessary and proper parties that should have been joined in the suit before the lower Court. xiii.

The non-joinder of the Applicants was highly prejudicial to the interest of the Applicants. xiv. The applicants are interested in the subject matter of the suit no: FCT/HC/CV/143/2006 and dissatisfied with the decision of the lower Court delivered on 19th July, 2010 but signed on 14th October, 2010 in the suit. xv. Leave of this honorable Court is required to appeal against the judgment of the High Court of the Federal Capital Territory, Abuja Judicial division, contained in the judgment of honorable Justice A. A. I.

Banjoko delivered on 19th July, 2010 but signed on 14th October, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors. xvi. The proposed notice of appeal filed by the Applicants against the said judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division, contained in the judgment of honorable Justice A. A. I. Banjoko, delivered on 19th July, 2010 but signed on 14th October, 2010 in suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa v. The Federal Government of Nigeria & 4 Ors.

Contains grounds of appeal which are substantial, competent, recondite and arguable. xvii. The present application is imperative to enable the Applicants challenge the decisions of the lower Court which was heard and determined without their joinder. The application is predicated on Sections 36 and 243 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 15 and 30 of the Court of Appeal Act, 2004, Order 6 Rule 1 and 9 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court.

Also attached to the application is an affidavit of 40 paragraphs deposed to by one Muritala Rasaki, the 2nd Applicant in the application. Applicants also filed a written address on 7/12/2021. Upon receipt of the 1st Respondents’ Counter-affidavit and written address, applicants filed a reply on points of law on 24/2/2022. In opposing the Application, the 1st Respondent filed a counter-affidavit on the 29/10/2021 deposed to by Professor Alex U. Akpa, the 1st Respondent in person, and hinged on the counter affidavit is a written address filed on the 15th of October, 2021.

On the 14/3/2022, being the scheduled hearing date, parties duly represented by counsel identified the processes filed, adopted the same and urged the Court to grant their respective prayers. Whereas the applicants pray that they be granted leave to appeal the decision of the lower Court as interested parties, the respondents urged the Court to refuse the application being an abuse of the process of Court.

Moving the application, the learned counsel for the applicant, summarized the facts, and raised a sole issue for resolution, which is: Having regard to the material facts before this honorable Court, whether the interested parties are entitled to be granted leave as interested parties against the judgment delivered on 19th July, 2010 but signed on 14th October, 2010 by the High Court of the Federal Capital Territory Abuja per Banjoko J, as he then was. ​The hallmark of the applicant’s argument is that he was not joined as a party in the judgment delivered by the FCT High Court which judgment grossly affected his interest in the subject matter.

Accordingly, applicant now prays that he be allowed to appeal the decision as a party interested. Contrariwise, the 1st respondent opposes the application on two fronts: i. Whether considering the circumstances of this case the applicants could be held to be interested parties wherein the Court of appeal could grant leave to appeal judgment of the Court below, and ii. Whether considering the circumstances of this case the applicants’ application for leave is not an abuse of the Court below.

The position of the 1st respondent is that the applicants have no interest whatsoever in the subject matter of the application, as they have no legal right in the subject matter of the application, and on the second leg, learned counsel states that the applicants’ application constitutes or is an abuse of the Court’s process having filed the same application seven times. He contends that the application was filed malafide and thereby lacking in merit.

I note that whereas the other respondents defaulted and/or have not filed any process, the applicants herein duly replied to the 1st respondent’s address on points of law. ​My understanding of the present application is that applicants are seeking for the leave of this Court to appeal the judgment of the FCT High Court in suit with No. FCT/HC/CS/143/2006, said to have been delivered on the 19th day of July 2010 but signed on the 14th October, 2010.

The application is brought principally pursuant to Section 243 (1) (a) of the CFRN 1999, as amended which provides as follows: 243 “Any right of appeal to the Court of Appeal from the decision of the Federal High Court, or a High Court conferred by this Constitution shall be: (a) exercisable in the case of civil proceedings at the instance of the party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…” Clearly, the provision created two classes of persons who can exercise the right of appeal against the decision of a Federal High Court or a High Court, and they are: (a) a party to the action; and (b) any other person having an interest in the matter. ​The applicants not being parties to the hearing of the matter before the Federal High Court, necessitated the applicants, having fallen into the second category requiring the leave of this Court to appeal, for which purpose this application has been brought before this Court as the condition precedent to the exercise of their right of appeal.

The term “Leave” simply means permission, and the consideration of an application for leave calls for the exercise of discretion as stated in the case of Olumegbon v. Kareem (2002) FWLR (Pt. 107) 1145 AT 1151 that: “Whenever leave of the Court is a condition precedent for a right, the discretion of Court is implied. Hence, in an application for leave to appeal, the appellate Court is duty bound to look at the application of the “the person having interest in the matter” in order to confirm whether the appeal sought to be filed is frivolous or vexatious.”

It is now trite that the discretion of the Court must be exercised judiciously and judicially, and a Court called to exercise its discretion cannot be fettered by extraneous facts or issues. The Court is to place reliance on the facts presented by the parties and to do justice thereupon. See Bello vs. Yakubu (2008) ALL FWLR (Pt. 429) 4 75. In United Bank for Africa Vs.

GMBH & Co. (1989) 3 NWLR (Pt. 110) 374, Oputa JSC, goes further to state that: “Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision”. It is trite law that anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings.

The reason which makes it necessary to make a person a party to an action is so that he could be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectively and completely settled unless he is a party. See Okelue Vs. Medukam (2011) 2 NWLR (Pt. 1230) p. 176. See also Rinco Construction Co. Ltd. Vs.

Veepee Industries Ltd. (2005) 9 NWLR (Pt. 929) 85. ​In an effort to convince the Court that appellant qualifies as that party interested in the case, appellants filed an affidavit of 40 paragraphs deposed to by Muritala Rasaki the 2nd Interested Party/applicant, material to the application are the following paragraphs: 9.

It was in December, 2010 that I became aware through one of my staff while on a business trip to Lagos, that Court officials and policemen had come into my premises at No. 3, Kabwe Close, Off Constantine Street, Wuse, Zone 4, Abuja, ostensibly to levy execution on the property in consequence of a Court judgment. 10. The above information came to me as a rude shock as neither me nor the former owner (1st Applicant) had any inkling of a Court action with regard to the property or any controversy with the title documents of the said property. 11.

At my behest, my mother, who lives in Abuja, rushed to the property in issue on the day of the purported execution, only to be shown a writ of possession issued by the High Court of the Federal Capital Territory, Abuja, pursuant to a judgment delivered by the Honourable Justice A. A. I. Banjoko on 19/07/2010 but signed 14/10/2010. Now shown to me is a certified true copy of the aforesaid judgment which is attached hereto and marked as Exhibit F. 12.

The 1st Respondent who is the judgment creditor is aware that the property in issue was not vacant at any time during the pendency of the suit at the High Court of Federal Capital Territory, Abuja and was equally aware that I was in effective possession of the premises. 13. In a further move to ensure that the 1st Applicant and I were blissfully unaware of the pendency of Suit no: FCT/HC/CV/143/2006: Dr. Alex U. Akpa Vs. The Federal Government of Nigeria & 4 Ors.

Before the lower Court in respect of the property in issue, the 1st Respondent deliberately sued the 6th Respondent herein as the person in possession of the subject property. 14. Contrary to the impression created by the 1st Respondent before the lower Court, I am the person in possession of the subject property. 15. The 6th Respondent herein, Mr. A. O.

Sole, who was sued by the 1st Respondent at the lower Court was an illegal occupant of the premises long before the said suit was instituted at the High Court of the Federal Capital Territory, Abuja by the 1st Respondent and had been long properly evicted from the premises by the 1st Applicant. 16. The antics of the 1st Respondent in surreptitiously procuring the 6th Respondent as purportedly in possession of the premises several years after the said 6th Respondent, Mr. A. O.

Sole, was evicted from the premises was merely aimed at achieving the sinister motive of getting judgment behind my back. 17. A minimal effort and/or even a solitary visit to the premises in issue would have immediately revealed the fact that I am in occupation of same as the premises has been converted into a guest house with a very bold sign board that reads: “Mimah Suite” conspicuously at the front wall of the property. 18. The 1st Respondent concealed material facts from the lower Court that the 1st Applicant was indeed the winner of the bid relating to the sale of the property. 19.

The status of the 1st Applicant was revealed by DW1 in open Court when he testified that the 1st Applicant won the bid and the property was sold to him. ​Appellants also exhibited documents, i.e. exhibits A, B, C, and D to show that the 1st interested party won the bid to the property in contention, commenced the necessary processes which he concluded on the 23rd of February, 2007 and thereafter transferred his interest to the 2nd interested party who had been in possession thereof.

Applicants also depicted that the 1st respondent who filed the suit before the lower Court, but failed to join the interested parties, rather preferring to sue the 6th respondent who is a squatter on the property. Applicants also submitted that the 1st respondent was fully aware of the interest of the 1st interested party to the subject matter of the suit as indicated from the record, and relying on Okonkwo & Anor vs. Uba (2011) 47 NSCQR 33 AT 47, Oseni-Yekini & Anor vs. Otegbade (2014) LPELR-41101 (CA) and Asuquo vs.

Asuquo (2009) 16 NWLR (pt. 1116) 225 of the position that applicant having satisfied the Court that he is an interested party, ought to be allowed to appeal the decision of the lower Court. With respect to appeal with number CA/A/405/2011, the learned counsel for the applicants contended that that appeal was in respect to a ruling, whereas the instant application is to appeal the judgment.

To the 1st respondent’s contention that 1st applicant had no legal interest in the subject matter in dispute, it was contended that, the 1st respondent had shown from the record that he won the bid to the property, and further that his application does not amount to an abuse of the process of Court. ​I have therefore examined and accorded serious consideration to the submissions of the learned counsel on the issue in contention, and my understanding of the instant application is for the leave of this Court seeking for leave to appeal the judgment of the lower Court, consequent upon the ruling of this Court which set aside, the earlier ruling of the trial Court setting aside its decision on the grounds that proper parties were not before it.

This Court had on the issue alluded to that fact at page 23 of its judgment, but being of the view that the trial Court was functus officio, and therefore could not rightly make the order setting aside its judgment for reasons stated therein, of the view that the rights claimed by the 1st and 2nd respondents, who are now the 1st and 2nd applicants could only be examined before a competent Court of law.

To that extent, the submission by the 1st respondent to the effect that applicants had no legal interest in the matter in contention is to my mind premature at this stage as rightly contended, since that issue appears to be the bone and substance of the complaint upon which a competent Court ought to hear the parties, and to determine after hearing all the necessary parties on the issue. ​Lastly, can we rightly say that the consideration of the instant application would amount to an abuse of the process of the Court? I am not inclined in so thinking.

The history of the case shows that applicants on becoming aware of the judgment of the lower Court promptly applied for the setting aside of the said judgment on the ground that necessary parties were not joined. That the trial Court heard the application and granted the same, only to be turned back by this Court on appeal citing the lower Court’s lack of jurisdiction being functus officio in the determination of the application.

That his erstwhile counsel failed to properly approach this Court with the application to appeal as interested parties, and thereby had to brief a different counsel who now perfected the instant application. All I am saying therefore is that owing to all the circumstances of the case, this present application cannot be said to qualify as an abuse, and the decision of my learned brother Pemu, JCA, in Lasaco Ass. Plc vs. Deserve Savings and Loans Ltd (2012) 2 NWLR (pt. 1283) 95 AT 117, relied upon by the learned counsel for the 1st respondent clearly inapplicable to the circumstance.

The net result is that I hold the view that the interest of justice dictates that applicants be allowed to appeal the decision of the lower Court being parties interested and I so hold. In the event, order of this Court is hereby granted, granting leave to the applicants to appeal the judgment of Honorable Justice A.A.I. Banjoko in suit No. FCT/HC/CV/143/2006: Dr Alex Ukpa vs. The Federal Government of Nigeria & 4 Ors delivered on the 14th day of October, 2010 by the High Court of the Federal Capital Territory Abuja, 14 days granted to the applicant to file his Notice of Appeal.

Orders granted as prayed, and I make no order as to costs.

PETER OLABISI IGE, J.C.A.: I have had the privilege of reading the ruling just delivered by my learned brother BARKA, JCA. I agree with the finding and conclusion of my noble Lord. I adopt them as mine. Order of this Court is hereby granted, granting leave to the Applicants to appeal the judgment in Suit No. FCT/HC/CV/143/200 delivered by Honourable Justice A. A. I. Banjoko on the 14th day of October, 2010 by the High Court of the Federal Capital Territory, Abuja. There is no order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I read in advance, the draft of the ruling delivered by my learned brother, HAMMA AKAWU BARKA, JCA. I concur with the reasoning expressed and the conclusion reached in granting leave to the applicants to appeal the judgment of the Hon. Justice A. A. l. Banjoko in Suit No: FCT/HC/CV/143/2006: Dr. Alex Ukpa vs. The Federal Government of Nigeria & 4 Ors. delivered on the 14th day of October, 2010 by the High Court of the Federal Capital Territory, Abuja. I agree with my learned brother that the application has merit and same is hereby granted.

I abide by the consequential orders made in the lead ruling.

Judgment

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment) : This is an Appeal against the Ruling of the Awka Division of the Anambra State High Court, presided over by D. A. Onyefulu, J,. The Judgment was delivered on the 5th day of February, 2018 in Motion No A/1602M/2017. The Respondents herein as Defendants at the Court below had filed a Motion challenging the competence of the Suit on the ground that the Writ of Summons was neither signed by a Legal Practitioner nor the Plaintiff himself.

In a considered Ruling the learned trial Judge upheld the objection of the Respondents and struck out the Suit for being incompetent and for want of jurisdiction to entertain the Suit. This Interlocutory Appeal is predicated on the said Ruling. Even though Counsel for the Respondents Emeka Ejike Esq. raised a Preliminary Objection at pages 3 – 4 of his brief, he did not mention it while adopting his brief. The said Preliminary Objection is therefore deemed abandoned.

The Appellant’s brief which was filed out of time is hereby ordered by this Court as having been properly filed and served on the 1st day of February, 2022. Learned Counsel for the Appellant E. C. Uzoka Esq. distilled two issues for determination as follows: i. “Whether the trial Court was right in striking out the Suit on the mere allegation that neither the Plaintiff nor his Counsel signed an alleged Writ of Summons not exhibited. ii.

Whether this case can subsist or exist on the originating process as Writ of Summons as shown on pages 6 to 15 of Record of Appeal.” Learned Counsel for the Respondents Emeka Ejike Esq on the other hand distilled a sole issue thus: “Whether the Court below was right in striking out the Suit for lack of jurisdiction to entertain same due to non-signing of the Writ of Summons by the Plaintiff or his Counsel.” I will make use of this sole issue in the determination of this Appeal. The submissions of both Counsel are as argued in their respective briefs. I do not intend to reproduce same here.

Jurisdiction is the authority by which Courts and Judicial Officers take cognizance of and decide cases. The conditions under which a Court can assume jurisdiction to entertain a matter are clearly spelt out in S. P. D. C. (NIG) LTD V. AGBARA (2016) ALL FWLR (PT. 825) PG. 85. They are: 1. That the subject matter of the case is within its jurisdiction. 2. That there is no feature in the case which prevents the Court from exercising its jurisdiction. 3.

That the case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Again the High Court (Civil Procedure) Rules of Anambra State provided answers to the issue now on Appeal.

ORDER 6 RULE 1 of the High Court (Civil Procedure) Rules Anambra State, 2006 provides: “Originating process shall be prepared by a Plaintiff or his Legal Practitioner and shall be clearly printed on Opaque A4 paper of good quality.” ORDER 6 RULES 2(3) of the same Anambra State High Court Civil Procedure Rules provides: “Each copy shall be signed by the Legal Practitioner or by a Plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.” (underlining mine for emphasis) ​The said Writ of Summons the subject matter of this Appeal is at pages 1-3 of the Record of Appeal.

A look at the said Writ shows clearly that it was neither signed by the Plaintiff nor his Legal Practitioner. The penalty for failure to comply with the said Rules is provided for in ORDER 5 RULE 1 (1) of the same High Court Civil Procedure Rules.

It provides: “Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify proceedings.” Since the validity of the originating process in a proceeding is a sine qua non to the legitimacy of any Suit, the failure in the instant case by the Plaintiff (Appellant herein) or his Legal Practitioner to sign the said Writ in the manner required by the Rules as reproduced above, has fundamentally affected the validity of the Appellant’s Suit at the Court below and has resulted in fatal consequences.

It has therefore robbed the lower Court of jurisdiction. This is because the jurisdiction of the Court has not been activated ab initio. The Supreme Court in OKARIKA V.

SAMUEL (2013) NWLR (PT. 1353) PG 585 stated in very lear terms that: “Once the initiating process, be it Writ of Summons or Notice of Appeal is not signed or authenticated either by the litigating party or the Legal Practitioner on his behalf, then that process is invalid and the jurisdiction of the Court is ousted, the defect is taken as incurable.” In the premise, the sole issue is resolved against the Appellant and in favour of the Respondents. This Interlocutory Appeal is unmeritorious and is hereby dismissed. The Ruling of D. A.

Onyefulu J, of Awka Division of the Anambra State High Court, delivered on the 5th day of February, 2018 in Motion No A/1602M/2017 is hereby affirmed. I make no order as to costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, CHIOMA E. NWOSU-IHEME, PhD-JCA and I am in agreement with the reasoning and conclusions in disallowing the Appeal as completely lacking in merit. I subscribe to the consequential orders made thereto.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read before now the lead judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA. I agree with the reasoning and conclusions contained therein.

Judgment

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment of the High Court of Delta State delivered in suit no. AG/9/2014 on 24/3/2020.

In his Further Amended Statement of Claim, the respondent who was substituted for his late father, Okoro Osademe, the original claimant sought for declaration of title to a parcel of land lying and situate along Odeh Street, Ogbeisogban, Igbogili Abavo in Ika South Local Government Area bounded by Moses Ojeifo, Adanamigho Ikotu, Safa Nase, Jegbefume, Adagbonye Asemota, Odogwu Agwuhia, Okoh Ogbezuwa, Felix Edugie, Odeh Street, N50,000,000.00 (Fifty Million Naira) as special and general damages for trespass and an order of perpetual injunction restraining the defendants, their agents, servants and privies from committing further acts of trespass on the respondent’s land. ​The case of the respondent was that Modia, great grandfather of Osademe Okoro deforested the land in dispute many years ago and farmed on it till his death.

After Modia’s death, his son Gege inherited the land and he too farmed on the land till his death. Upon the death of Gege, his son Okoro inherited the land and continued farming on the land. Osademe Okoro grew up to meet his father, Okoro on the land and he joined him in farming on the land. Upon the death of Okoro, Osademe Okoro inherited the land. He planted palms, cashew, rubber, mango trees, peers and bamboos and was harvesting the crops without any disturbance from anybody. In February 2013, the appellants unlawfully broke into the land, damaged the economic crops and set them ablaze.

The matter was reported to the police but after their investigation, the police ruled that the matter was a civil matter. The appellants’ case was that the land in dispute known and called Eku Ugbo Ogbe situate behind Modern School (now Institute of Continuing Education, I.C.E) off Igbogoli/Ogbe Idibou Road, Igbogili, Abavo has from time immemorial been and is still the communal land of Ogbeisogban Community, Igbogili Quarters, Abavo in Ika South Local Government Area of Delta State. The respondent has never been in possession and is not the owner of the land in dispute.

The appellants grew up and met their fathers farming on the land and they joined their fathers in farming on the land. The appellants successfully defended the community’s title in suit no 123/52 instituted against Mr. Okocha and Mr. Okoh. The appellants’ community normally maps out some acres of land from the said reserved communal land for farming every four years. The area of the land so mapped out is usually rented out to some members of the community. In the year 2000, eighteen acres of the land was mapped out at N1,000 per acre which every person renting the land paid.

Okoro Osademe rented one acre out of the said eighteen acres mapped out. Surprisingly instead of paying rent, he instituted Suit No. ADCC/21/2000 against one Igbodo Ojeifor and two other persons who are indigenes of Ogbeisogban Community, Abavo for allegedly setting fire to his farm. In re-action, the appellants’ community, Idumu-Isogban now Ogbeisogban filed a fresh Suit No. ADCC/24/2000, Okoh Ogbezuwa & 3 Ors V. Osademe Okoro wherein they claimed damages for trespass against Osademe Okoro. The parties later met and resolved the matter out of Court.

Terms of settlement was filed in Court wherein it was clearly stated that the land in dispute in the two cases is communal land belonging to the appellants’ community.

According to the appellants, there has never been any person in Abavo called Mordia who deforested any land which eventually got to the respondent through chains of inheritance. The Late Osademe Okoro testified as the claimant. He called the respondent herein as CW1 and one other witness as CW2. The 1st appellant and two other witnesses testified for the defence and tendered documents which were admitted as Exhibits D1-D5. Written addresses were exchanged and adopted by counsel to both parties.

The Court in its considered judgment entered judgment in favour of the respondent and against the appellants as follows: “Having found that the claimant has established his claim to the land in dispute on a balance of probability and therefore entitled to a statutory right of occupancy in respect of same and that the defendants did trespass into the land in dispute, the claimant is also entitled to the 3rd relief which is perpetual injunction against the defendants.

The 2nd issue is answered in the affirmative and judgment is accordingly entered for the claimant as follows:- 1) A declaration that the claimant is entitled to the grant of statutory right of occupancy of all that piece and parcel of land lying and situate along Odeh Street, Ogbeisogban, Igbogili, Abavo in Ika South Local Government Area within jurisdiction bounded by Moses Ojeifo, Adanamigho Ikotu, Safe Nase, Jegbefume, Adagbonye Asamota, Odogwu Agwuhia, Okoh Ogbezuwa, Felix Edugie, Odeh Street as shown in the litigation plan. 2) The sum of N2,395,000.00 (Two Million, Three Hundred and Ninety-Five Thousand Naira) only as special damages. 3) The sum of N1,000,000.00 (One Million Naira) only as general damages for trespass. 4) An Order for Perpetual injunction, restraining the defendants, their agents, servants, privies from committing further acts of trespass on the claimant’s land.” The appellants filed a notice of appeal containing nine grounds of appeal against the judgment on 19/6/20.

The appellants’ brief of argument was filed on 25/3/21. It was deemed as properly filed and served on 30/9/21. The respondent’s brief of argument was filed on 1/11/21. The appellants formulated the following issues for determination: 1. Whether the non-joinder of Ogbeisogban Community as defendant in the suit does not in any way affect the competence of the suit and jurisdiction of the trial Court to adjudicate on the matter with no proper defendant considering the nature of Late Mr. Osademe Okoro’s claims and the state of appellants’ pleading (Ground 9) 2.

Whether from the facts and circumstances of this case, Late Mr. Osademe Okoro could be regarded as someone who made a written statement on oath which he could rely on in proof or in support of his case as required by the High Court of Delta State (Civil Procedure) Rules, 2009 (Ground 8). 3. Whether His Lordship properly evaluated available evidence before coming to the conclusion that Late Mr. Osademe Okoro proved his ownership of the land in dispute by traditional evidence (Grounds 1, 2, 3, 4, 5) 4. Whether His Lordship is justified in coming to the conclusion that Late Mr.

Osademe Okoro proved his claim of special damages (Ground 6) 5. Whether the award of general damages against the appellants is justified in the circumstances of the case (Ground 7). ​ The respondent did not formulate his own issue. He responded to all the issues formulated and argued by the appellants. On issue 1 which I re-formulate as follows: Whether the non-joinder of Ogbeisogban Community as a defendant in the suit affect the competence of the suit and jurisdiction of the trial Court to adjudicate on the matter?

On this issue, the appellants’ counsel submitted that the lower Court had no jurisdiction to adjudicate on the respondent’s claim because the Ogbeisogban Community that owned the land in dispute and were parties to suit no. ADDCC/24/2000 which suit was denied by the respondent but which the Court accepted exists was not joined as a defendant in this case. He referred to PLATEAU STATE V. A.G. FED (2006) 137 LRCN 1400 AT 1483 (RATIO 2). LSBP CORPORATION V. P.T (NIG.) LTD (2012) 214 LRCN 144 AT 171-174 (RATIO 7). U.O.O. (NIG.) PLC V. OKAFOR (2020) 302 LRCN 56 AT 80 (RATIO 2).

Counsel argued that in the absence of the Ogbeisogban Community, the finding that the appellants did not plead how the community came to own the land in dispute is not appropriate because it is only when the community is made a party to the case that it becomes necessary to plead how the community came to own the land. He contends that non-joinder of Ogbeisogban Community as a defendant is fatal to the respondent’s case.

The respondent’s counsel in his response submitted that the appellants are the ones laying claim to the land in dispute and not the community and the respondent did not mention the community as the trespasser nor seek any relief against the community. RESOLUTION Order 13 Rules 3 and 8(1) of the High Court (Civil Procedure) Rules, 2009 of Delta State provide that: 3. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.

Judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment. 8. (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him. The law is settled that it is the cause of action as endorsed on the originating process that determines the proper parties that should be before the Court. See AG FEDERATION V.

AG OF ABIA STATE & ORS (2001) LPELR-631(SC) AT 95 (B-C), BAKARE & ORS V. AJOSE-ADEOGUN & ORS (2014) LPELR-25024(SC) AT 47 (A-B), (2014) ALL FWLR (PT.737) 611. It is fundamental to adjudicatory competence for a Court to first examine the basis of dispute, that is, what led to instituting the suit which is otherwise called ‘Cause of Action’. See NWORIKA V, ONONEZE & ORS (2019) LPELR-46521(SC) AT 15-20(B-E).

A careful look at the averments in the Further Amended Statement of Claim reveals that the cause of action in this case is the unlawful entry and destruction of the respondent’s crops on the land in dispute by the appellants in February, 2013. All the reliefs sought by the respondent stated earlier in this judgment are against the appellants. No relief was sought against Ogbeisogban Community. The basis of the respondent’s claim is that the land in dispute belonged to his ancestor through whom the land devolved on him and that the land is not a community land.

It is the appellants that claimed that the land is a community land. The decision in AWONIYI & ORS V. THE REG. TRUSTEES OF AMORC (NIG) (2000) LPELR-655 AT 8 (D-E). (2000) 10 NWLR (PT.676) 522 relied on by the appellant is that parties against whom complaints are made in an action must be made parties to such action. There is no complaint against the community in this case. The law is settled that the Court cannot compel a claimant to sue a party against whom he has no complaint or has no desire to sue.

See IN RE: MOGAJI (1986) LPELR-1891(SC) AT 17 (AOB), (1986) 1 NWLR (PT.19) 759, AYORINDE & ORS. V. ONI & ANOR (2000) LPELR-684 (SC) AT 27 (D-F). The contention of the appellants that the community ought to have been joined is based on the fact that the respondent instituted suit no. ADCC/21/2000 against Igbodo Ojeifor & 2 Ors while the Community instituted suit no. ADCC 24/2000 against the respondent. The two suits were settled out of Court and the terms of settlement were made judgment of the Court. The land in dispute in the two cases was clearly identified in Exhibit D3.

The identity of the land in dispute in the present case was pleaded in paragraphs 2 and 18 of the Further Amended Statement of Claim. The appellants in paragraph 3 (C) of their 2nd Further Amended Statement of Defence admitted that the boundaries of the land in dispute are as stated by the respondent. The lower Court at pages 295-296 of the record of appeal compared the identity of the two lands and held that the land in dispute in Exhibit D3 and the land in dispute in the present case are not the same.

The Court concluded that: “Having found that the parties in Exhibit D3 and the present case are not the same and that the land in dispute in Exhibit D3 and the present case are the same (sic) the plea of estoppels per rem judicatam cannot avail the defendants. Same fails. Having failed this Court has the jurisdiction to entertain this suit.” The finding of the lower Court that the land in dispute in the previous suits and the land in dispute in this case are not the same is unassailable in view of the clear identification of the boundaries of the two lands.

The law is trite that before the doctrine of estoppels can operate, it must be shown that the parties, issues and subject-matter in the previous suit are the same as those in the action in which the plea of estoppels is raised. Since the land in dispute in this case is not the same as the land in the previous suits and the respondent has no complaint or claim against the community, the finding of the lower Court that the plea of estoppel per rem judicatam cannot avail the appellants is in consonance with the law.

The contention of the appellants that the suit is not properly constituted for failure to join the Ogbeisogban Community is misconceived in law. Issue 1 is resolved against the appellants. Issue 2 is whether from the facts and circumstances of this case, Late Mr. Osademe Okoro could be regarded as someone who made a written statement on oath which could be relied on in proof or in support of the respondent’s case as required by the High Court of Delta State (Civil Procedure) Rules, 2009.

On this issue, the appellants’ counsel argued that since the late Osademe Okoro, the original claimant denied making and signing the statement made on 9/6/16 in the previous proceedings the lower Court was in error to hold that the Court could rely on the statement because the said Late Osademe Okoro adopted the statement as his evidence in the trial which started de novo. He submitted that the case of BABATUNDE V. P.A.S. & T LTD (2007) 13 NWLR (PT.1050) 113 AT 147 cited by the lower Court is not applicable to the present case.

He also submitted that the particular statement adopted by late Osademe Okoro is not known as he did not state which of his statements he adopted as his evidence before the Court. The respondent’s counsel in his response submitted that it is a clear principle of law that once a process has been duly amended, it is replaced by the amended version. He referred to RTSLBC VS NNIKOL RES LTD (2015) 14 NWLR PT 1479 PG 393 RR2.

He argued that the appellants’ counsel cannot claim ignorance of the particular statement on oath adopted by late Osademe Okoro as his evidence before the Court because the appellants’ counsel cross-examined him based on the statement on oath and the same counsel clearly identified the statements on oath adopted by the various parties and their witnesses in his final address at the lower Court.

RESOLUTION The parties agreed that the extant pleading of the respondent upon which evidence was adduced in support of his case and upon which the Court based its judgment is the Further Amended Statement of Claim which was accompanied by an amended statement on oath of late Osademe Okoro deposed to on 9/6/2016. It is a settled principle of law that once a Court process is duly amended by the order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. See NAGOGO V.

CPC & ORS (2012) LPELR-15521(SC) AT 24-26(B-A), (2013) 2 NWLR (PT.1339) 448, OFORISHE V. NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC) AT 16-17 (E-B), (2018) 2 NWLR (PT. 1602) 35. The amendment of late Osademe Okoro’s statement on oath is akin to amendment of pleadings or any other Court process. See REV. KING v. STATE (2016) LPELR-40046(SC) AT 37-38 (E-A), (2016) 6 NWLR (Pt. 1509) 529.

The Amended Statement of Claim was further amended sequel to an application filed on 9/6/16 and granted on 10/6/16. Therefore, the valid statement on oath of late Osadebe Okoro is the amended statement on oath filed along with the Further Amended Statement of Claim contained on pages 158-163 of the record of appeal. Any statement on oath of late Osademe Okoro filed before the amended statement on oath is immaterial in the determination of the issues in this case and cannot be considered as the basis of the respondent’s case.

It is not indispute that the only valid statement of Osademe Okoro as at 17/12/17 when he testified and adopted his statement on oath is the amended statement on oath filed along with the Further Amended Statement of Claim.

The appellants cannot be heard to say that they do not know the statement that was adopted by him. In Exhibit D2 which was tendered by the appellants through him, he identified the statement made on 9/6/16 as his statement and adopted same as his evidence before the Court. His evidence under cross-examination in Exhibit D2 can only be used for the purpose of testing his credibility as it is settled law that evidence of a witness taken in earlier proceedings is not relevant in a later trial except for the purpose of discrediting such witness on cross-examination and for that purpose only.

See SANYAOLU v. COKER & ORS (1983) LPELR-3012(SC) AT 17-21(E-C), EZE V. ENE & ANOR (2017) LPELR-41916(SC) AT 26-30(A-D). The lower Court cannot rely on the evidence in the aborted proceedings to conclude that late Osademe Okoro did not make the statement adopted by him as his evidence in chief in a trial that started de novo and upon which he was cross-examined by the opposing party.

Even if the statement of late Osadebe Okoro is discountenanced as canvassed by the appellants but there is no reason to so do, there is the statement of CW1 deposed on 16/2/2016 which he adopted as his evidence before the Court and on which he was extensively cross-examined. It is not the law that a party must testify in his own case if he can prove his case by calling other witnesses. See EZE V. NWANKWO & ORS (2015) LPELR-40666(CA) AT 26-27 (B-A), ASUQUO & ANOR v. OMOLE & ANOR (2019) LPELR-47867(CA) AT 41-42(E-B). In any case, CW1 is now the respondent in this appeal.

The contention of the appellants’ counsel that the statement adopted by late Osademe Okoro is unknown and the respondent’s pleading is deemed to have been abandoned is misconceived in law. Issue 2 is resolved against the appellants. Issue 3 is whether the lower Court properly evaluated the available evidence before coming to the conclusion that the respondent proved his ownership of the land in dispute by traditional evidence.

On this issue, the appellants’ counsel submitted that late Osademe Okoro and the respondent did not satisfy the provisions of Section 115 (3 and 4) of the Evidence Act, 2011 as to the source of the information that Mordia defrosted the land in dispute and the lower Court ought not to have acted on the evidence. He referred to MAJA V. SAMOURIS (2002) 95 LRCN 341 AT 356.

He also submitted that the late Osademe Okoro who relied on evidence of traditional history ought to have led evidence from other sources by calling an independent witness to make his traditional history convincing, credible and in satisfaction of Section 131(1) of the Evidence Act, 2011. He referred to OYEBANJI V. A.G. OSUN STATE (2005) 1 FWLR 363 AT 377-378 (RATIO 1). Counsel referred to the entire evidence of both parties.

He contends that if the lower Court had properly evaluated the evidence, it would not have made the finding that the land in dispute is surrounded by individual lands and that the individuals inherited their lands. In his response, the respondents’ counsel submitted that the evidence adduced by the respondent fulfilled the requirements for a successful reliance on traditional history. He referred to EWO V. ANI (2004) 3 NWLR (PT.861) 611 AT 619 (RATIO 15), NWABUEZE V. NWAIGWE (2001) 19 NWLR (PT. 199) 714 (RATIO 6).

He embarked on an extensive analysis of the entire evidence adduced by both parties. He submitted that the lower Court made impeccable findings which are supported by evidence and arrived at a sound conclusion that the respondent established his claim to the land in dispute which findings cannot be disturbed. RESOLUTION The contention of the appellants’ counsel on the non-compliance with the provisions of the Evidence Act is untenable.

First, there is a plethora of cases by which it has been settled that witness statement on oath which should accompany a writ of summons by virtue of the High Court (Civil Procedure) Rules of Delta State is not the same as an affidavit and needs not comply with the provisions of the Evidence Act, 2011. Once an affidavit is deposed to as required by law, it becomes evidence on which the Court can rely and reach a decision in appropriate cases. A statement on oath does not become evidence until the maker/deponent adopts same as his evidence after being sworn as a witness before the Court.

See ABUBAKAR V. ALI & ORS (2015) LPELR-40359(CA) At 45-46 (D-E), TAR & ORS V. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-44216(CA) AT 31-32 (C).

Secondly, it is accepted that traditional history is evidence of historical fact transmitted from generation to generation by word of mouth. It is by its nature hearsay evidence because the witnesses cannot speak from their personal knowledge. They only repeat the story which their ancestors had passed down from generation to generation.

What the law requires a party relying on evidence of traditional history as his root of title to do is to plead and proof the following: (1) The name of the person who founded the land (2) How he founded the land, and (3) The intervening owners on whom the land devolved from its founder to the last successor without leaving gaps or creating mysterious linkages which cannot be explained. See AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC) AT 48 (B-F), (2015) 3 NWLR (PT.1447) 578. PADA V. GALADIMA (2018) 3 NWLR (PT. 1607) 436 AT 456 (C-F).

Late Osademe Okoro by pleadings and evidence and the evidence of CW1 now the respondent traced the history of his root of title from Mordia who deforested the land to himself unlike the appellants who merely pleaded vaguely that the land in dispute is a communal land of Ogbeisogban Community and the community has been in exclusive possession of the land from time immemorial without stating how the community came to own the land. Osademe Okoro grew up and farmed with his father on the land in dispute. He was at a vantage position to talk about ownership of the land.

It is not enough to assert that the land is a community land. A party who asserts communal ownership of land must plead and prove by cogent and credible evidence the name of the common ancestor who found the community. How the land in dispute became communal land and how the land has devolved from generation to generation till the present generation in the community. See ECHI V. NNAMANI (2000) 5 SC 62 at 78, OSUKPONG & ORS V. EDUOIKA & ANOR (2015) LPELR-24641(CA) AT 5-6 (E-D), ATALOYE & ORS V. JUMOKE (2016) LPELR-41317(CA) AT 16-17 (F-A), OBU & ANOR V.

OKIGWE & ORS (2018) LPELR-43938(CA) AT 14-15(E-C). The appellants failed to plead and adduce evidence of how the community was founded and how the community became seized of the land in dispute. The lower Court carried out a detailed analysis and evaluation of the evidence adduced by both parties and held at pages 299-300 that if there is any communal land in Ogbeisogban Community, it is definitely not the one in dispute in this present suit as the defendants failed to state how the Ogbeisogban Community came to own the land in dispute. I have perused the entire judgment.

I agree with the respondent’s counsel that the learned trial judge did an excellent job as regards the appraisal and evaluation of the evidence adduced by both parties. It is the primary duty of a trial Court to evaluate evidence adduced before it and make definite findings on such evidence. Where the trial Court has properly performed its duty by ascribing the correct probative value to the evidence and make impeccable findings as the learned trial judge did in this case, the Court of appeal has no power to interfere with the judgment of the trial Court. See MEKWUNYE V.

W.A.E.C.(2020) 6 NWLR (PT.1719).

The traditional evidence of the respondent is cogent and credible while that of the appellants fell far short of the requirements of the law. It is settled that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. It would be sufficient to support a claim or declaration of title to land. See DIKE & ORS v. OKOLOEDO & ORS (1999) LPELR-946(SC) AT 13 (A-C), (1999) 10 NWLR (PT.623) 359, SOGUNRO & ORS V. YEKU & ORS (2017) LPELR-41905(SC) AT 17-19(B-A). Based on the foregoing, issue 3 is resolved against the appellants.

Issues 4 and 5 are whether His Lordship is justified in coming to the conclusion that the respondent proved his claim of special damages and whether the award of general damages against the appellants is justified in the circumstances of the case. On these issues, the appellants’ counsel submitted that special damages must be strictly proved with sufficient evidence. He further submitted that unchallenged ipse dixit is not an automatic proof of special damages. He referred to U.B.N PLC V. NWANKWO (2020) 300 LRCN 223 AT 236. He urged the Court to set aside the award of damages as late Mr.

Osademe did not state how he came about the monetary value he attached to the items for which special damages was awarded. Counsel argued that having awarded special damages for the damaged crops, award of general damages amount to double compensation. The respondent in his response submitted that the respondent pleaded the names, the numbers and the market value of the economic trees destroyed by the appellants. The appellants did not debunk those facts in their statement of defence and the evidence was not challenged under cross-examination.

He submitted that assessment of the quantum of general damages is at the discretion of the Court and the award would only be altered or varied if it is shown to be manifestly too high or too low which is not the appellants’ complaint here. RESOLUTION Trespass is an unwarranted or unjustifiable entry or intrusion by one person upon land in possession of another. It is settled that trespass is actionable per se without proof of actual damage. See AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358(SC) AT 38-39 (G-A), (2000) 6 NWLR (PT.659) 92, STIRLING CIVIL ENGINEERING (NIG) LTD V.

YAHAYA (2005) LPELR-3118(SC) AT 23(E). However, where a claimant has suffered specific loss on account of trespass committed on his land, he is entitled to claim special damages for the loss suffered apart from the general damages for trespass. See NBC PLC V. UBANI (2013) LPELR-21902(SC) AT 31-32 (B-A).

The lower Court at pages 304-305 of the record of appeal held that the appellants having failed to cross-examine late Okoro and CW1 on the number and the value of the particular crops destroyed by the appellants, the Court is entitled to accept and act on the evidence in support of the claim for special damages. The law requires that special damages must be strictly proved with cogent and credible evidence. In OSHO & ANOR v.

FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC) AT 52-53 (G-A), the Supreme Court held that in an action for damages for trespass, special damages must be pleaded and strictly proved, the value pleaded being normally a reflection of the prevailing market prices. In the instant case, the respondent pleaded and adduced evidence through late Osademe Okoro in support of his claim for special damages but failed to state how he came about the amount claimed for each crop. An estimate of the value of each crop is different from the market value of the crop.

The submission of the respondent’s counsel that the value is the estimated market value of the crops is not supported by the pleadings or the evidence on record. The submission is an attempt to smuggle in a piece of evidence not before the Court in the guise of a final address. The law is trite that an address no matter how brilliant cannot take the place of evidence.

Unchallenged evidence, without more, can constitute sufficient proof of special damage but a claimant who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible. Claim for special damages based on mere estimates or estimation of the claimant is not precise. See ENEH V. OZOR & ANOR (2016) LPELR-40830 (SC) AT 14-16 (E-A), (2016) 16 NWLR (PT.1538) 219, AJIGBOTOSHO V. RCC (2018) LPELR-44774 (SC) AT 29-30 (D-E).

I am of the view that the respondent having failed to plead and adduce evidence of the facts upon which he based the cost of the crops claimed by him, the lower Court wrongly exercised its discretion in awarding the special damages. For this reason, issue 4 is resolved in favour of the appellant. Issue 5 is resolved against the appellant. The result is that this appeal succeeds in part and in respect of the special damages only. For avoidance of doubt, judgment of the lower Court in respect of title to land, general damages for trespass and order of injunction is hereby affirmed.

The award of special damages in the sum of N2,395,000.00 (Two Million, Three Hundred and Ninety-Five Thousand Naira) only as special damages is hereby set aside. Parties shall bear their own costs.

JOSEPH EYO EKANEM, J.C.A.: Where a party relies on traditional history to prove title to land, he is required to plead and prove: (1) Who founded the land (2) How he founded the land. (3) Successive persons to who the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. Traditional evidence just like any other evidence is subject to evaluation by the Court. To attract credibility, it must be total in narration.

Partial or overtly incomplete or abridged history of past events leaves doubt about the true nature of such history embedded in secrecy. See Osu v. Nwadialo (2009) 12 NWLR (Pt. 1155) 286, 303 – 304, Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553, 573 and Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822) 237, 275 – 276. The late original claimant’s evidence of traditional history as pleaded and testified to by him satisfied the above requirements. The burden therefore shifted to the appellants to disprove the case of the respondent. What did the appellants offer?

Their case was that the land in dispute is a communal land of Ogbeisogbo Community and that the community had been in exclusive possession of the land from time immemorial. This plea vague as it is, is far below the standard required of traditional history. In the case of Adebo v.

Omisola (2005) 2 NWLR (Pt. 909) 149, 168, it was held that an averment that a family is the original owner of land does not bring the case within the purview of proof by traditional evidence unless there is evidence that the family has become established owners through an ancestor whose name has always been associated with ownership of the land. The case of the appellants fell far short of the above standard and so the traditional evidence on the part of the respondent stood alone with no competing story. It was therefore bound to succeed. See Akanbi v.

Salawu (2003) 13 NWLR (Pt. 838) 637, 649 – 650. Since the respondent did not prove special damages by sufficient evidence, the same ought not to have been awarded by the trial Court. In the light of what I have stated above and the more comprehensive reasons in the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, I also allow the appeal in part by setting aside the award of the sum of N2,395,000.00 and affirming the decision of the trial Court in respect of the other reliefs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the honour of reading before now the judgment just read by my Lord, MISITURA OMODERE BOLAJI-YUSUFF JCA, and I entirely agree with the well thought out reasoning and conclusion therein. He has covered the field and I have nothing to add.

Judgment

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is a judgment against the decision of the High Court of Justice, Benue State (hereafter the lower/trial Court) presided over by Hon. Justice M. A. Ikpambese, J., delivered 22nd December, 2017 in suit No.

MHC/136/17. ​ The plaintiff at the trial Court who herein is the respondent, had by a writ of summons issued 22nd March, 2017 and statement of claim filed same day claimed, as follows against the defendant who is the appellant herein: 23. (a) A DECLARATION that the blockage of the plaintiff’s MTN line, 08036361204 which the plaintiff obtained from the defendant sometimes in the year 2005 or 2006 and which he has been using consistently since then except for the eight days he travelled to Cameroun was based on negligence. ​(b) A DECLARATION that the welcoming and ceding of the plaintiff’s MTN line, 08036361204 which the plaintiff obtained from the defendant sometimes in the year 2005 or 2006 and has been utilizing to an unknown person by the defendant without confirming the data in their systems constitutes grave negligence and insensitivity to the duty of care owed the plaintiff, an esteemed customer. (c) A DECLARATION that the blocking of the plaintiff’s MTN line 08036361204 which the plaintiff obtained from the defendant sometimes in the year 2005 or 2006 and using its network to withdraw the funds in the account of the plaintiff and sending the alert into the unknown number welcomed by the defendant constitutes a breach of care and kingship status of a customer in the world of business. (d) AN ORDER of the Honourable Court compelling the defendant to refund the sum of two hundred thousand, four hundred and twenty thousand naira negligently or fraudulently withdrawn from the plaintiff’s fidelity account using the network of the defendant. (e) AN ORDER of perpetual injunction restraining the defendant from further tempering (sic) with the account of the plaintiff or from doing anything negligently to the MTN line of the plaintiff. (f) SPECIAL DAMAGES of Two Hundred and Fifty Thousand [N250,000] Naira only representing legal consultancy fees and the advanced payment for the prosecution of this suit. (g) GENERAL DAMAGES of Twenty Million Naira [N20,000,000.00] only on punitive and exemplary footing for the psychological trauma, commercial stagnation, erosion of reputation and societal disgrace the plaintiff suffered as a result of the defendant’s unwarranted, mischievous, negligent blocking of the plaintiff MTN line and ceding it to another. (h) THE COST of prosecuting this suit assessed at 20% of the judgment sum. (i) AN ORDER of 10% post judgment interest until the judgment sum is defrayed. (See pages 7 – 8 of the record of appeal).

On 10th April, 2017, the defendant filed a Notice of Preliminary Objection No. MHC/761M/17 pursuant to Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (the Constitution), Section 138 of the Nigerian Communications Act (NCA), Chapter N97 Laws of the Federation of Nigeria, 2004, and Order 6 Rule 2(3), Order 39 Rule 1 of the Benue State (Civil Procedure), praying the Court for: AN Order striking out this Suit for want of Jurisdiction. ​The Grounds for the Objection include: 1. The Writ of Summons issued is fundamentally defective and therefore incompetent. 2.

By virtue of Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, Chapter C23 Laws of the Federation of Nigeria, 2004 (the 1999 Constitution) and Section 138 of the Nigerian Communications Act, Chapter N97 of the Laws of the Federation of Nigeria (the NCA), the Benue State High Court lacks the jurisdictional competence to hear and determine this Suit. Particulars 1.

By Section 251(1) of the 1999 Constitution the Federal High Court can, by an Act of the National Assembly, be conferred with the exclusive Jurisdiction to hear and determine any subject matter not listed in the said Section 251(1)(a) to (s). 2. Section 138 of the NCA confers on the Federal High Court “exclusive Jurisdiction over all matters, suits and cases howsoever arising out of or pursuant to or consequent upon…” the NCA. 3.

The subject matter of this Suit being complaints relating to connectivity and the network service provided for the Plaintiff/Respondent arises from the NCA. (See pages 24 – 25 of the record of appeal). The defendant/objector also filed his written address in support of the preliminary objection, while the learned counsel for the plaintiff filed their written address in opposition to the objection on 10th May, 2017.

In his considered ruling/judgment delivered 22nd December, 2017, the learned trial Judge dismissed the defendant/objector’s Notice of Preliminary Objection. (See pages 49 – 51 of the record of appeal). Dissatisfied with the decision, the defendant/objector (hereinafter the appellant), filed a Notice of Appeal against the ruling at the lower Court on 7th February, 2019. (See pages 52 – 56 of the record of appeal). ​ The record of appeal was compiled and transmitted to this Court on 15th March, 2019. Appellant’s brief of argument settled by Ndubuisi Ogbonnaya, Esq., was filed 11th April, 2019.

Despite service of the said brief of argument on the plaintiff/respondent through one Joel Tatyogh, Esq. on 12th April, 2019, they failed to file respondent’s brief of argument. Consequently, the appeal was heard and determined solely on the appellant’s brief of argument. From the 6 (six) grounds of the Notice and Grounds of Appeal, the appellant formulated the following two issues for determination: 1.

Whether having found that the Writ of Summons in this suit was not signed, the lower Court was right in holding that the error/failure was a mere irregularity and in further directing the Plaintiff’s Counsel to sign the writ of summons? (Grounds 1, 2 and 3). 2. Whether the subject matter in this suit falls within the exclusive jurisdictional purview of the Federal High Court in view of the express provisions of Section 138 of the NCA. (Grounds 4, 5 and 6).

ISSUE 1 (ONE) Whether having found that the Writ of Summons in this suit was not signed, the lower Court was right in holding that the error/failure was a mere irregularity and in further directing the Plaintiff’s Counsel to sign the writ of summons? ​In arguing this issue, the appellant while relying on some cases, submitted that failure to sign the Writ of Summons as duly confirmed by the lower Court is not a mere irregularity that can howsoever be cured. See Order 5 Rule (1) and (2) and Order 6 Rule 2(3) of the Benue State High Court (Civil Procedure) Rules, 2007.

Learned counsel contended that only omissions as to time (like filing out of time) or omissions as to place (like filing in the wrong Judicial division), or manner (like adopting the wrong procedure or approach), or form (like bringing a suit by summons which ought to have been brought by Writ or like noncompliance with standard forms), will constitute an irregularity. Counsel canvassed that nothing in the said rules would indicate that a failure to sign a writ of summons or any other originating process by the Plaintiff or his Counsel can be treated as a mere irregularity.

RESOLUTION OF ISSUE 1 (ONE) It was the clear findings of the lower Court that: It is not in doubt that the plaintiff or his counsel did not sign the writ. However, the application for writ of summons and the statement of claim are signed by Emmanuel Ominyi, Esq., on 21st day of March, 2017. The issue here is whether the plaintiff or his counsel and not whether his name is on the Supreme Court Roll. Emmanuel Ominyi readily supplied his number in the Supreme Court Roll as SCN065441.

It is agreed that counsel affixed his practice seal/stamp on the first page of the writ of summons but did not sign in the signature column of page 1 of the writ of summons. The case of Okafor vs. Nweke (2007) NWLR Pt. 1043, pg. 521 where a process was signed and under the signature was written “J. H. C. Okolo SAN & Co.” does not apply to the set of facts in the instant case. This is because J. H. C. Okolo SAN & Co. is not a legal practitioner and cannot practice by filing processes. In the instant case, Emmanuel Ominiyi, Esq. omitted to sign the writ and the objection is timeously raised.

It is, however, an irregularity since the application for the writ of summons and statement of claim are signed.​ In the light of the above, the plaintiff’s counsel, Emmanuel Ominiyi, Esq. shall sign the writ of summons which is the last column/line in page 1 of the originating process.[(See page 50 of the record of appeal). Underlining supplied for emphasis]. The mere fact that the writ of summons as duly found by the learned trial Judge, was not signed ab initio, is enough reason for the trial Court to strike out the writ of summons.

This is in view of the mandatory provisions of Order 6 Rule 2(3) of the Benue State High Court (Civil Procedure) Rules, 2007 which reads thus: (3) Each copy shall be signed by the Legal Practitioner or by a plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed. (Underlining mine for emphasis).

Given the underlined word “shall” in the foregoing, it is clear that there are no two ways about it that the writ of summons must be signed by counsel or plaintiff at the point of issue and not in the open Court as the learned trial Judge out of his magnanimity allowed to happen. Signing the writ of summons inside the Court hall as ordered by the learned trial Judge, and behind the Registrar is contrary to the foregoing Order 6 Rule 2(3) (supra).

This is because the Registrar would be shut out of his responsibility of verification and certification of the process as prescribed by the said Order 6 Rule 2(3) supra. The word “shall” as it appears therein, makes it obligatory for counsel or the plaintiff as the case may be, to sign and the Registrar to verify and certify the signature on the writ of summons to be that of the signatory. Since the writ of summons was not signed in the presence of the Registrar, there is no way he can vouch or certify that the said signature is that of the learned Emmanuel Ominyi, Esq. of counsel.

The failure of counsel to sign the writ of summons, irrespective of the fact that he signed the statement of claim as found by the lower Court does not bring it within the ambit of mere irregularity. As rightly submitted by the learned counsel for the appellant, it is unheard of that a process already issued, filed and served is returned to the plaintiff for any form of alteration without a proper application and/or a concurrence of both parties in the suit.

This is in sync with the provisions of Order 5 Rule 1(1) of the Benue State High Court (Civil Procedure) Rules, 2007 which states as follows: Where in beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, the failure shall nullify the proceedings.

The issuance of an originating process such as a writ of summons, is the beginning of the proceedings and where by reason of failure by counsel or the plaintiff, as it were, to sign the said writ of summons, the failure shall nullify the proceedings. ​As to what would constitute an irregularity, the same Order 5 Rule 1(2) of the Benue State High Court (Civil Procedure) Rules, 2007 provides thus: Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings.

The Judge may give such direction as he thinks fit to regularize such steps. Failure to sign signature cannot equate to be failure as to time, or place, or manner or form as to be treated as an irregularity. Rather, the failure to sign the writ of summons being the originating process is at the heart of any action. As an originating process, the writ of summons is meant to bring into being an action or a suit. If the said originating process is incapacitated by act of non-compliance with the mandatory pre-conditions of the law, then the action it will throw up will be nothing but a stillbirth.

Therefore, the writ of summons has to be duly signed by the appropriate person id est the counsel or plaintiff and the signature duly verified and certified by the Registrar. The writ of summons herein in issue which was signed behind the Registrar, amounted to an alteration and or change effected to same without the necessary action to be performed by the Registrar. In SLB Consortium Ltd. vs. N.N.P.C. (2011) 9 NWLR Pt. 1252, pg. 317, 332, para.

E., our revered Onnoghen, JSC., did enjoin Courts as follows: It has been argued that non-compliance with the provisions of Order 26 Rule 4(3) supra is a mere irregularity which had been waived as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu vs. Nkemdilim (supra). That apart, the provisions of the Legal Practitioners Act, 1990, are statutory and therefore matters of substantive law which cannot be waived.

The provisions of the Rules of Court involved herein are, by the wordings, mandatory not discretionary. See also the authorities of Okafor vs. Nweke (2007) 10 NWLR Pt. 1043, pg. 521; and Min. of Works & Transport, Adamawa State vs. Yakubu (2013) 6 NWLR Pt. 1351, pg. 481, where the apex Court held that failure to sign an originating process renders same fundamentally defective, and legally non-existent which defect cannot even be cured by an amendment.

The position in the instant appeal is quite distinguishable from where the writ of summons was signed however, by a person whose name has not been enrolled at the Supreme Court to practice law in Nigeria as was the case in Okafor vs. Nweke (supra). Of importance in this regard is the decision of this Court in Buhari vs.

Adebayo (2014) 10 NWLR Pt. 1416, pg. 560, per my noble brother Akeju, JCA., where he held as follows: The writ of summons that originated the appellant’s suit was not properly signed by a legal practitioner known to law and it is properly struck out by the learned trial Judge, the immediate consequence of which is that the foundation of the action does not exist and so the suit was properly struck out based on the principle that no one can place something upon nothing, MacFoy vs.

UAC (2006) 16 WRN 185 (sic); the totality of which is that appellants’ suit lacks competence having not been initiated by due process of law, Madukolu vs. Nkemdilim (1962) 1 All NLR 357, (1962) 2 SCNLR2 41. The bottom line of this appeal is that the writ of summons preceding the action that yielded the instant appeal was not signed at all, neither the name and/or mark of a Legal Practitioner visible on the face of it. Also, the fact that counsel affixed his stamp/seal on the said writ of summons does not cure the apparent defect of the process.

Thus, the attempt by the learned trial Judge to amend the totally fractured process with the fact that Emmanuel Ominyi, Esq. of counsel was properly enrolled at the Supreme Court does not arise. At the end of the day, the question whether having found that the Writ of Summons in the suit was not signed, the lower Court was right in holding that the error/failure was a mere irregularity and for which he further directed the Plaintiff’s counsel to sign the said Writ of Summons in the face of the lower Court, is answered in the negative.

The Writ of Summons had by that omission become invalidated or voided for being incurably defective. The lower Court was bereft of the necessary jurisdiction to meddle with the Writ of Summons by trying to cure such an incurable defect. Being a dead process on arrival, all that the learned trial Judge had to do in the circumstances, was to strike out the Writ of Summons.

Be that as it may, our revered Nweze, JSC., in the case of Dr. Okey Ikechukwu vs. Fed. Rep. of Nigeria & 2 Ors. (2015) 7 NWLR Pt. 1457, pg. 1 at 21, paras. D-G., has enjoined as follows in the leading judgment: As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues.

In this case the Court of Appeal upheld the 1st Respondent’s Preliminary Objection to the competence of the appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the argument in support of the issues for determination distilled by the parties to the appeal. [F.M.H. vs. C.S.A. Ltd. (2009) 9 NWLR Pt. 1145, pg. 193; Brawal Shipping (Nig.) Ltd. vs. F. I. Onwadike Co. Ltd. (2000) 11 NWLR Pt. 678, pg. 387; Adeogun vs. Fasogbon (2011) 8 NWLR Pt. 1250, pg. 427; Ovunwo vs. Woko (2011) 17 NWLR Pt. 1277, pg. 522; F.C.D.A. vs.

Sule (1994) 3 NWLR Pt. 332, pg. 257; Ifeanyi Chukwu (Osondu) Co. Ltd. vs. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR Pt. 656, pg. 322; NEPA vs. Ango (2001) 15 NWLR Pt. 737, pg. 625; Uwazurike vs. A-G., Federation (2007) 8 NWLR Pt. 1035, pg. 1 referred to.]

Regarding the proper order to make where the Court finds it lacks jurisdiction, the apex Court went on in Dr. Okey Ikechukwu (supra) to hold thus:

Where a Court finds that it lacks jurisdiction, the appropriate order it should make is one striking out the matter. In this case, the Court of Appeal was right when it refused to consider the issues formulated by the parties, and struck out the appeal after it upheld the 1st respondent’s preliminary objection to its jurisdiction. [Hambe vs. Hueze (2001) 4 NWLR pt. 703, pg. 372; Onyemah vs. Egbuchulam (1996) 5 NWLR pt. 448, pg. 255; NEPA vs. Ango (2001) 15 NWLR Pt. 737, pg. 627 referred to.)

Leaning on the foregoing authority and taking cognizance of the fact that the lower Court failed to do the needful, which is to strike out the action for non-compliance with a veritable pre-condition, I shall pursuant, to the provisions of Section 15 of the Court of Appeal Act (as amended), order that the Writ of Summons issued 22nd March, 2017 in suit No. MHC/136/2017 shall be struck out and it is so struck out. Furthermore, issue 2 (two) as raised for determination is hereby rendered otiose and of no moment. Issue 2 (two) is likewise struck out.

The resultant effect is that the appeal by the defendant/appellant is imbued with merit and therefore allowed. On the whole the ruling of the High Court of Benue State in suit No. MHC/136/2017, per Hon. Justice M. A. Ikpambese, J., delivered 22nd December, 2017 is hereby set aside. Appeal succeeds.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother Hon. Justice C. Ifeoma Jombo-Ofo, JCA, I have nothing to add to the well researched Judgment which I adopt as mine. The resultant effect is that the appeal by the Defendant/Appellant is imbued with merit and therefore allowed.

MUSLIM SULE HASSAN, J.C.A.: I read in advance the lead judgment of my learned brother CORDELIA IFEOMA JOMBO-OFO, JCA, just delivered whose reasoning and conclusion therein I hereby adopt as mine in allowing the appeal. This appeal is meritorious and is hereby allowed, the judgment of the lower Court delivered on 22nd day of December, 2017 is hereby set aside.

Judgment

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is consequent upon the judgment of the High Court of Kano State delivered by Hon. Justice Ahmad Tijjani Badamasi on the 23rd September, 2016. The judgment of the lower Court was in favour of the plaintiffs. The plaintiffs/respondents claimed against the defendant/appellant at the Court below as follows: 1.

A declaration that both the house as well as the plot of land lying and situated at Na’ibawa Quarters in which Madarasatul Ulumiddini Islamiyya Na’ibawa carried out its school activities belong to the Madaratul Ulumiddini Islamiyya Na’ibawa. 2.

A perpetual injunction restraining the defendant, his heirs, agents, privies or any person deriving authority, or power, from the defendant, or any person acting through the defendant for themselves or for the defendant from disturbing/obstructing the quiet and peaceful engagement of the Madaratul Ulumiddini Islamiyya Na’ibawa on the house and plot of land laying and situate at Na’ibawa, Kumbotso Local Government Kano. 3. N500,000.00 (Five Hundred Thousand Naira) damages for police intimidation on the Parent Teacher Association members at their meeting on the 10th of August, 2014. 4.

Cost of this action. The defendant in his amended statement of defence counter-claimed against the plaintiffs in their individual capacity, jointly and severally as follows:- 1. A Declaration that the purported instrument of gift dated 30/5/1996 is concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal. 2. A Declaration that the purported instrument of sale dated 15/2/1999 is a concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal. 3.

A Declaration that the insinuation and forgery or concoction by the plaintiffs/respondents have succeeded in damaging the reputation image, prestige and philanthropic character of the counter – claimant which he has been building for more than 40 years now. 4. An order against the plaintiffs/respondents for payment of N2,500,000:00 to the counter–claimant as damages. 5. An order against the plaintiff for payment of N250,000:00 as cost of appearing and defending this suit.

Before the lower Court, the plaintiffs called a witness and tendered exhibits. The defendant called 4 witnesses and also tendered exhibits. After hearing and considering the evidence adduced and addresses of counsel, the lower Court gave judgment to the plaintiffs/respondents. The counter–claim was dismissed. Aggrieved by the decision, the defendant/appellant filed his appeal. The amended Notice of Appeal was filed on the 19th/12/17 and has 6 grounds: 1.

The learned trial judge erred in law by refusing to advert the Court’s mind to contents of the instrument of gift/waqf: Exhibit “A” &”A1″ which unambiguously showed and show a competent gift/waqf being created and which is outside the jurisdictional competence of the Court as provided by Section 277 of the Federal Republic of Nigerian Constitution 1999 (As amended). 2.

The learned trial judge erred in law by merging all ‘issues raised by the Defendant/Appellant and omits to digest, that and hold on all the sacrosanct issues, backed by facts and evidence of fraud, pleaded and led by the defendant/appellant and thereby arriving at the decision not based on the facts, evidence and issues before the Court. 3. The learned trial judge erred in law when he held that Madarasatul Ulumuddini Islamiyya Na’ibawa is an incorporated trustee and a competent legal personality under the Common Law when no evidence whatsoever was pleaded, led or admitted thereon. 4.

The learned trial judge, with respect, erred in law when the Court granted damages of N500,000 to the Plaintiffs/Respondents regarding an alleged fact which was never properly pleaded nor proved. 5. The trial judge erred in law when the Court dismissed all the counter-claim of the defendant/counter-claimant. 6. The lower Court erred in law when it decided the matter which falls within the ambit of Islamic Personal Law as enshrined under Section 277 (2)(c) of Nigerian Constitution 1999 as amended. All the grounds have particulars of error. The appellant sought for the following reliefs: 1.

AN ORDER allowing the appeal. 2. AN ORDER setting aside the judgment of trial Court. The appellant’s amended brief of argument was filed on the 21st/10/21 and deemed properly filed on 25/10/21. He filed a reply brief equally on 25/10/21. Both were settled by M.A.Abdullahi Esq. Four (4) issues were distilled for the determination of the appeal from the adopted brief: – 1.

Whether or not the lower Court has jurisdictional competence to entertain a matter pertaining gift or waqf made to an Islamiyya school known as Madarasatul Ulumiddini Islamiyya Naibawa, Kano, the matter which rests squarely under Islamic’ personal law as enshrined under the provision of Section 277 of the Constitution Federal Republic of Nigeria 1999 (as amended). 2.

Whether or not considering the parties, subject matter, history, pleadings, testimonies, documents exhibited and the circumstances of this case learned trial Judge was right in holding that the plaintiff shave proved their case as per writ and the defendant failed to prove his counter-claim? 3. Whether or not the respondents have proved the necessary prerequisites in law to be entitled for the damages in the sum of N500,000.00. 4. Whether or not the errors complained of in this Appeal constitutes the ground that will warrant this Court to overturn the decision of the lower Court?

The respondent’s learned counsel S. J. Gani Esq., settled the Respondent’s amended brief of argument that was deemed properly filed on 12th/10/21. The respondents also distilled four (4) issues as follows: – 1. Whether considering the circumstances of this case, the lower Court has the jurisdiction to entertain this matter. 2. Whether considering the circumstances of this case the learned trial judge was right in holding that the plaintiffs have proved their case as per the writ and the defendant failed to prove his counter-claim. 3.

Whether the learned trial judge was right when he awarded damages against the defendant in favour of the plaintiff. 4. Whether the errors complained of in this appeal constitute the ground which will warrant this Court to interfere with the decision of the lower Court. In my view, the issues formulated by the learned counsel to the respondent are better couched. Though the issues tally, they are more apt. Let me from the outset observe that the reply brief contain repetition of issues already discussed in the main brief. The same issues were re-argued and/or re-emphasized. In IDAGU Vs.

STATE (2018) LPELR – 44343 (SC), it was inter alia held: A reply brief is limited to finding answers to the questions raised in the respondent’s brief, which the appellant has not addressed or dealt with in the main brief. It is not the forum for the appellant to strengthen his main brief by repeating and expanding the argument contained therein. In this case, all the arguments in violation of this principle in the reply brief will be discountenanced. The reply brief is accordingly discountenanced.

Arguing the appeal before us on the 11th/11/21, the learned appellants’ counsel on issue no. 1 submitted that the claim before the lower Court had to do with gift/endowment made by the appellant per paragraphs 3 and 4 of page 40 of the record of appeal. Counsel submitted that Exhibits A and A1 the Hausa and English translated version of the memo of the gift/waqf were tendered in evidence on page 36 of the record (copies on pages 347 and 349). It was submitted that the appellant made clear his intention and that had not been contradicted even during cross-examination.

Counsel referred to page 261 – 262, paragraph 8 wherein the appellant made the averment in his statement on oath. The learned counsel contended that any matter involving Islamic Personal law as provided by S. 277 (2) of the Constitution (as amended), the Sharia Court of Appeal is vested with the jurisdiction to hear and determine the issue. That where the issue involved is land, as in the present circumstance, Sub-section (2) (c) covers issues of waqf or gift of land. He referred to MANDARA Vs. AMIN (2004) ALL FWLR (Pt. 239) 1022 AT 1035 – 1036.

Counsel submitted that Section 39 of the Land Use Act has not tempered with the issue of Islamic Personal law regarding land matters. He relied on ZANGINA Vs. COMMISSIONER OF WORKS & HOUSING BORNO STATE (2001) FWLR (Pt. 79) 1368 AT 1391. As regards the appropriate Court to be, the learned counsel relied on USMAN Vs. KAREEM (2006) ALL FWLR (Pt. 314) 363 AT 378. Counsel urged the Court to hold that the claim before the High Court is pertaining Islamic Personal Law which is outside the jurisdiction of the lower Court.

On issue no. 2, counsel submitted that it was not in dispute that the subject matter before the lower Court, a house and plot originally belonged to the appellant. That the Ulumuddini Islamiyya represented by the plaintiffs is an Islamic Organization for the entire Muslims of the area not subject to personal ownership. That the appellant was in the Upper Sharia Court for proper determination of that purpose when the respondents rushed to the lower Court to restrain the Upper Sharia Court from making a pronouncement in accordance with Islamic Law that governs the transaction.

The learned counsel submitted that the matter/suit had no competent plaintiffs. That in a representative capacity action, the parties must have common interest in both the proceedings and the subject matter, NSIMA Vs. NNAJI & ORS (1961) ALL NLR 441 and AMAJIDIOGU Vs. ONUNAKU (1988) 2 NWLR Pt. … That from the heading of the case, the persons suing the appellant in representative capacity have no capacity to sue and they did not satisfy the condition placed by law to be able to bring representative action.

Counsel submitted that the plaintiff cannot represent those having the same interest in the proceedings if he himself has no such instant. See BENSON Vs. ASHIRU (1967) 1 ALL NLR 184. Counsel made submissions regarding the identity of the land. That the plaintiffs failed to prove the identity of the land, therefore, the claim of the plaintiffs ought to be dismissed, AUTA Vs. IBE (2003) 11 MJSC 128. Counsel raised the issue that the witness of the plaintiffs made contradictory testimonies. That the witness during cross-examination mentioned School Board of Trustees.

Counsel submitted that nowhere in the pleadings was School Board of Trustees mentioned. That it was not before the Court that the Islamiyya School was registered under Part C of Company and Allied Matters Act (CAMA). But that in the judgment of the lower Court, the school was said to be represented by its Trustees.

Counsel raised issue of contradictions in the evidence of the plaintiffs in his brief but failed to indicate where to locate the contradictions in the record. ​ On the subject matter of the suit allegedly sold to the school, the learned counsel submitted that the onus is on the party that claims title to certain lands which was originally vested in a rival party to prove how such rival party had divested his title to the portion of the land in dispute in his favour.

Counsel submitted that property donated to be used for the sake of Allah is not subject to any purpose except for the sake of Allah. Where deviation occurs, the property reverts to the constituted authority or to the owner. To determine whether there is deviation from the purpose, is an issue for the Sharia Court to determine. That the appellant suspected that deviation and that was why he went to Upper Sharia Court but the respondents went to the lower Court which restrained the Upper Sharia Court from determining the deviation.

He urged the Court to hold that the claim filed by the plaintiffs before this Court (sic) is wholly a matter pertaining to Islamic Personal Law which is outside the competence of the High Court to determine. Counsel urged the Court to look at Exhibits tendered and the signature of the appellant on them to ascertain which belongs to the appellant and which did not. That to ascertain forgery of the documents, the Court shall look at the 2 documents per APC Vs. PDP & ORS (No proper citation provided). That the Court below granted the reliefs of the plaintiffs wrongly.

Counsel now raised issues to do with prove of title to land (declaration of title to land) relying on WACHUKWU Vs. OWUNWANNE (2011) 14 NWLR (Pt. 1266) 1 @ 6. That plaintiff must succeed on the strength of his case per KANO Vs. MAIKAJI (2011) 17 NWLR (Pt. 1275) 139 @ 143. On claim for declaration of title to land, he relied on ADESANYA Vs. ADERONMU (2002) 2 SCNQR 1180. Now, on issue no. 3, counsel submitted that the respondents failed to prove the necessary requirements to be entitled to the award of damages of N500,000:00 granted to them.

That the sole witness of the plaintiffs/respondents did not prove damages as claimed. He continued that claim for damages can only be awarded for a wrong in contract or tort. That even where loss was incurred but without wrong on the defendant, no damages shall be awarded, FAGGE Vs. TUKUR (2007) ALL FWLR (Pt. 387) 876. That no parameter was used for the assessment of the damages was shown by the lower Court. That damages was not proved. He urged the Court to hold that there was no evidence sufficient enough to warrant the award of damages to the respondents.

Learned counsel on issue no. 4, submitted that mere irregularity does not warrant the appellate Court to temper with the lower Courts’ finding except if miscarriage of justice is occasioned. See DAGACI OF DARE Vs. DAGACI OF EBWA (2006) ALL FWLR (Pt. 306) 802, where the Supreme Court held how it will void concurrent findings of the lower Courts. Counsel submitted that the learned trial judge violated principles of law and procedure, that his findings will not stand and he urged the Court to so hold. Counsel urged the Court to set aside the decision of the lower Court because: – i.

The matter which was tried and determined by the lower Court is one pertains to Islamic Personal Law which falls within the jurisdictional competence of Sharia Court. ii. The decision of the High Court on the subject matter of this appeal is made without jurisdiction. iii. The award of N500,000 made by the lower Court in favour of the respondents is made without proof of any loss incurred or wrong suffered from the Appellant’s acts to entitle any amount of award of damages.

Learned counsel to the respondents on issue no. 1 started with the jurisdiction of the Courts as conferred by the Constitution or Statute. He referred to A.G LAGOS STATE Vs. A.G FED (2014) 4 SCNJ 374 AT 407: “It must be stressed that the jurisdiction of all Courts are provided for by the Constitution and/or relevant legislation. Jurisdiction remains a question of law and a necessary requirement in all proceedings.” That jurisdiction is a creation of statute, per Onnoghen, JSC (as he then was) later CJN in ANPP Vs.

GONI (2012) 2 SCNJ 255 AT 281 wherein he held inter alia: “I am compelled by circumstances beyond my control to state, without fear of contradiction as same has been settled by a long line of authorities, that jurisdiction is a creation of Statute or the Constitution …” See also JAMES Vs. INEC (2015) 3 SCNJ 170 AT 213. Counsel continued that Section 270 of the Constitution created the High Court of Kano State. Section 272 provides for its jurisdiction.

It says:- 272(1) “Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

Counsel submitted that the state High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of rights, power, duties or interest are involved. That S. 39 (1) Land Use Act, 1978 vests on State High Courts exclusive jurisdiction involving declaration of title to land. Counsel submitted further that the lower Court is vested with exclusive jurisdiction to entertain declaration of title to land.

Counsel contended that in determining the subject matter of any proceedings with respect to the jurisdiction of the Court, the claim of the plaintiff as contained in the statement of claim is to be examined. See SOCIETY BIC Vs. CHARZIR (2014) 2 SCNJ 85 AT 11 6 and JAMES Vs. INEC (2015) 3 SCNJ 170 AT 2233. Counsel went back to their claim against the appellant and submitted that their main claim before the lower Court is for a declaration that the house and the plot of land in dispute belong to the Madarasatul Ulumiddini Islamiyya Na’ibawa.

That Kano State High Court has jurisdiction Per Section 272 of the Constitution and S. 39 (1). Land Use Act, 1978. See also CBN Vs. RAHAMANIYYA GLOBAL RESOURCES LTD (2020) LPELR – 10815 (SC) and AHMED Vs. AHMED (2013) 7 SCNJ 274 AT 321. Counsel now proceeded to submit that the arguments of the appellant with respect to S. 277 (2) (a) – (c) of the Constitution does not vest on the Sharia Court of Appeal with original jurisdiction.

That the cases cited and relied upon do not suggest that Sharia Court of Appeal has original jurisdiction even on proceedings involving questions of Islamic Personal Law let alone declaration of title to land. Learned counsel clarified the issue of gift referred to in their amended statement of claim at pages 138 – 142 of the record.

That the subject matter before the lower Court, the house and plot of land were owned by Madarasatul Ulumuddini Islamiyya Na’ibawa through exchange and outright purchase respectively; paragraph 16 – 22 of the amended statement of claim in pages 140 -141 of the record and Exhibits C and C1, D and D1 in pages 355- 358. Counsel concluded on this issue that exchange and outright sale are simple contract that falls with the original jurisdiction of State High Court. He urged the Court to so hold.

On issue no. 2, the learned counsel submitted that both the house and the plot of land belonged to the appellant, but that the appellant divested himself of the ownership and transferred the same to Madarasatul Ulumuddini Islamiyya Na’ibawa as required by law, paragraphs 10, 12, 13, 14, 15, 16 and 17 of the amended statement of claim in pages 139 – 140 of the record. Counsel submitted further that having pleaded that the appellant divested himself of ownership and transferred the same to the respondents in their pleadings, the burden is on them to prove their claim per OBAWOLE Vs.

COKER (1994) 6 SCNJ (Pt. 1) 20 AT 34, MULIMA Vs. USMAN (2014) 4 SCNJ 592 AT 623. That to further prove their case, they tendered in evidence Exhibits C and C1, D and D1 being memorandum of exchange and sale agreement respectively. That their pieces of evidence were not contradicted and unchallenged and uncontradicted evidence are deemed admitted and the Court in enjoined to use same.

On the competence of the respondents ”suing for and on behalf of Madarasatul Ulumuddini Islamiyya Na’ibawa,” counsel referred to their writ of summons at pages 1 -15 and their amended statement of claim at pages 138 – 139 of the record and submitted that a group of persons that share common interest or purpose can institute an action in representative capacity to defend such interest once they are identifiable per ELF PETROLEUM Vs. UMAH (2018) 1 SCNJ 1 AT 51 and ADEDIRAN Vs. INTERLAND (1991) 12 SCNJ 27 AT 46.

He submitted that the appellant dealt with the respondents as representatives and executive council members of the Parent Teachers Association of the school per Exhibits A and A1, B and B1, C and C1, D and D1, pages 347 – 378 of the record. That unregistered body and association may appoint persons as representatives or trustees, ANYAEGBUNAM Vs. OSAKA (2000) 3 SCNJ 1 AT 10. Counsel concluded that the appellant cannot be heard to complain having entered into various agreements with the school through its representatives. That this had not been controverted or contradicted by the appellant.

He urged the Court to resolve the issue in favour of the respondents. As regards the identification of the house and plot, counsel referred to paragraphs 17, 18, 21 and 22 of their amended statement of claim on pages 140 and 141 of the record. That the appellant did not controvert their evidence, DANLADI Vs. DANGIRI (2014) 11 SCNJ 155 AT 197. On the credibility of a single witness, counsel submitted that they are under no obligation to call prescribed number of witnesses. That what is required is quality of evidence, ONOWHOSA Vs. ODIUZOU (1999) 1 SCNJ 13 AT 23.

That evaluation of evidence vests on the trial Court that saw and heard the witnesses, UKEJE Vs. UKEJE (2014) 4 SCNJ 1 AT 24 and SA’ED Vs. YAKOWA (2012) 2 SCNJ 404 AT 434. That the evidence of their lone witness was neither contradicted nor dislodged. He urged the Court to so hold. On whether the exhibits were legally executed, the learned counsel submitted that the parties have executed the documents tendered and admitted as exhibits.

That parties are bound by their agreement and where such agreements are reduced into writing, no extrinsic evidence is admissible to vary or alter the content of written agreement, OGUNDEPO Vs. OLUMESAN (2011) 12 SCNJ 89 AT 99. That the appellant and respondents reduced the agreement into writing and that the documents were tendered and admitted as Exhibits A and A1, B and B1, C and C1, D and D1 that nowhere in those documents did the appellant and the respondents contemplated waqf or Hubusi and none was contemplated in the documents.

He urged the Court not to allow the appellant “to add to, vary, subtract from or contradict the terms of” their written agreement. He relied on OGUNDELE Vs. AGIRI (2009) 12 SCNJ 141 AT 153. On the submission of the appellant that the documents were obtained by fraud without pleading the particulars of fraud and leading evidence to establish the same as required by law, counsel submitted that the appellant affirmed that the documents were genuine and admissible having equally relied on them. See paragraphs 6 and 7 of the amended statement of defence in pages 256 – 257 of the record.

Counsel further submitted that the appellant did not make out any relevant case before the trial Court. He reproduced the reliefs sought by the appellant’s in his counter-claim. He continued that the claim of the appellant bordered on forgery. That forgery being a crime ought to be proved beyond reasonable doubts, UKEJE Vs. PDP (2015) 4 SCNJ AT 51 and Sections 135 (1) and 38 of the Evidence Act 2011. That appellant did not prove forgery, counsel urged the Court to so hold.

On issue no. 3, on award of damages, counsel submitted that award of general damages is within the discretion of the trial Court per OKWEJIMINOR Vs. GBAKEJI (2008) 1 SCNJ 481 AT 499 and KOPOLATI Vs. MTN NIG COMMUNICATIONS LTD (2020) ALL FWLR (Pt. 1040) 882 AT 905. That such discretion are rarely tempered with by the appellate Court being general as opposed to special damages, that needs not be proved. See UNION BANK Vs. CHIMAEZE (2014) 4 SCNJ34 AT 57. He urged the Court not to temper with the award of damages of the sum of N500,000.00 against the appellant.

On issue no. 4, the learned counsel submitted that ordinarily, an appellate Court does not interfere with the finding of facts by a trial Court except where the conclusion reached was perverse, ODOM Vs. PDP (2015) 2 SCNJ 58 AT 88 and OBIDIKE Vs. THE STATE (2014) 3 SCNJ 208. Counsel submitted that the findings of the lower Court were based on the pleadings and evidence adduced by the parties. See OLEKSANDR Vs. LONESTAR (2015) 4 SCNJ 235 AT 272. Counsel finally concluded that the lower Court was right to assume jurisdiction to entertain the case and to award the damages against the appellant.

He urged the Court to dismiss the appeal with cost. RESOLUTION OF THE ISSUES The first issue for determination has to do with the jurisdiction of the lower Court. The position of the appellant remained that the suit before the lower Court is one that ought to be before the Sharia Court of Appeal. See paragraph 5.2 of the amended appellant’s brief of argument. He cited and relied on many authorities I earlier credited to him.

Counsel also heavily made submissions to the effect that the issues before the lower Court concern Islamic Personal Law and therefore outside the jurisdiction of the lower Court. From the submission of both learned counsel, they are unanimous that jurisdiction is conferred on the Courts by the constitution and/or by statutes. Where they parted ways has to do with the stand taken by counsel to the respondents that the issue before the lower Court has nothing to do with Islamic Personal Law.

He drew the attention of the Court to look at the claim of the plaintiffs to ascertain the subject matter before the lower Court.

In a suit where the parties filed pleadings, it is expected that each party shall formulate his case in his own way. Both the parties and the Court are bound by the pleadings. The purpose is bringing certainty as each party becomes aware of what his adversary presented before the Court and therefore the expectations on him to counter or accept. Evidence that is not in support of pleaded facts becomes of no moment. None is expected to adduce evidence in proof of issues agreed upon. See OSHODI Vs. EYIFUNMI (2000) 3 NSCQR 320 and METROPOLITAN ESTATES Vs. UNION BANK (2018) LPELR – 43989 (CA).

It is trite and settled that no Court grants a relief that is not sought/claimed. The plaintiff claim reliefs through his writ of summons and/or statement of claim. The defendant does through a counter-claim. See NIGERIA AIRFORCE Vs. SHEKETE (2002) 12 SCNJ 35 AT 52, DABUP Vs. KOLO (1993) 9 NWLR (Pt. 317) 674 and EDOSOMWAN Vs. IDUGBOE (2019) LPELR – 46423 (CA). At the lower Court, the defendant/appellant filed a counter-claim.

It is known that a counter-claim is a separate and independent action. For purposes of convenience however, and to avoid delay, or save cost and waste of judicial time and to fundamentally avoid multiplicity of action, the main claim and the counter-claim are tried together. See JOS ELECTRICITY DISTRIBUTION PLC Vs. MUHAMMED (2015) LPELR – 24461(CA) and OGBONNA Vs AG IMO STATE (1992) 2 SCNJ (Pt. 1) 26 and AG LAGOS STATE Vs. AG FED (2004) 12 SCNJ 1 @ 39.

It is trite law that the measures for determining whether a Court has jurisdiction over a matter in a suit before it, is the statute that established that Court and the subject matter of the litigation which can be determined by the plaintiff averments in the statement of claim. See NNPC Vs. IBRAHIM & ORS (2014) LPELR – 23999 (CA). The determinants of jurisdiction are: 1. The statute that established the Court, in this case, Sections 270 – 274 of the Constitution (as amended) that creates State High Courts. 2.

The subject matter to be litigated upon which is usually determined by the claim of the plaintiff. KOTOYE Vs. SARAKI (1994) 7 NWLR (Pt. 357) 414 and F.G.N. Vs. OSHIOMHOLE (2004) 3 NWLR (Pt. 860) 305 where the Court inter alia held: “It is the claim before the Court, particularly the reliefs being sought by the plaintiff that determine the jurisdiction of the Court.” To get to the root of the issues in this appeal therefore is to review the record of appeal to examine the claim before the lower Court.

For the accordance of doubt, this Court or any Court at all has the right to look at its record and proceedings on any matter before it and to take judicial notice of their contents although they may not be formally brought before the Court by the parties, Per Ba’aba, JCA (of blessed memory) in ADO Vs. MEKARA (2009) 9 NWLR (Pt. 1147) 491. See also FUMUDOH Vs. ABORO (1991) 9 NWLR (Pt. 214) 210 AT 229. From the record particularly pages 138 – 142, the amended claim of the plaintiffs are: A.

A DECLARATION that both the house as well as the plot of land lying (sic) and situate at Na’ibawa Quarters in which Madarasatul Ulumiddini Islamiyya Na’ibawa carries out its school activities belong to the Madarasatul Ulumiddini Islamiyya Na’ibawa. B.

A PERPETUAL INJUNCTION restraining the defendant, his heirs, agents, privies or any person deriving authority, or power, from the defendant, or any person acting through the defendant for themselves or for the defendant from disturbing/obstructing the quiet and peaceful enjoyment of the Madarasatul Ulumiddini Islamiyya Na’ibawa on the house and plot of land laying and situate at Na’ibawa, Kumbotso Local Government Kano. C. N500,000.00 (Five Hundred Thousand Naira) damages for police intimidation on the Parent Teacher Association members at their meeting on the 10th day of August, 2014. D.

Cost of this action. These reliefs/claims I dare say do not in my view fall within the per view of Islamic Personal Law. In addition, the decision/cases relied upon as authority by the appellant are distinguishable from this. The counter-claim filed by the defendant/appellant in my view did not help the case of the defendant regarding the Court that has jurisdiction on his claims. In the amended Defendant’s statement of claim/counter-claim on pages 256 – 260, the defendant counter-claims as follows: 1.

A Declaration that the purported instrument of gift dated 30/5/1996 is a concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal. 2. A Declaration that the purported instrument of sale dated 15/2/1999 is a concoction and has been forged by the plaintiffs/respondents and therefore invalid and illegal. 3.

A Declaration that the insinuation and forgery or concoction by the plaintiffs/respondents have succeeded in damaging the reputation, image, prestige and philanthropic character of the counter – claimant which he has been building for more than 40 years now. 4. An Order against the plaintiffs/respondents for payment of N2,500,000.00 to the counter-claimant as damages. 5. An Order against the Plaintiff for payment of N250,000.00 as cost of appearing and defending this suit.

Going through the claims of the appellant before the lower Court, I do not see anything that call in the jurisdiction of the Sharia Court of Appeal.

The jurisdiction of the Sharia Court of Appeal is donated by Section 277 of the Constitution. Section 277.

“The Sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law which the Court is competent to decide in accordance with the provisions of Subsection (2) of this Section. (2) For the purposes of Subsection (1) of this Section, the Sharia Court of Appeal shall be competent to decide – (a) any question of Islamic personal law regarding a marriage concluded in accordance with that law, including a question relating to the validity or dissolution of such a marriage or a question that depends on such a marriage and relating to family relationship or the guardianship of an infant. (b) where all the parties to the proceedings are muslims, any question of Islamic personal law regarding a marriage, including the validity or dissolution of that marriage, or regarding family relationship, a foundling or the guardianship of an infant. (c) any question of Islamic personal law regarding a wakf, gift, will or succession where the endower, donor, testator or deceased person is a muslim. (d) any question of Islamic personal law regarding an infant, prodigal or person of unsound mind who is a muslim or the maintenance or the guardianship of a muslim who is physically or mentally infirm;

or (e) where all the parties to the proceedings, being muslims, have requested the Court that hears the case in the first instance to determine that case in accordance with Islamic personal law, any other question.” Clearly, the Sharia Court of Appeal is not the right Court to determine the issues raised by both the appellant and the respondents in the Court below.

The High Court of the other hand has its jurisdiction donated by Section 272 of the Constitution: Section 272 “Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. (2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction. (3) Subject to the provisions of Section 251 and other provisions of this Constitution, the Federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a State, a Governor or Deputy Governor has ceased or become vacant.

Issue no. 1 is therefore resolved in favour of the respondents. On issue no. 2, which has to do with proof. The appellant in his counter-claim alleged that the plaintiffs concocted documents to the effect that the instrument of gift dated 30th/05/1996 and instrument of sale dated 15th/02/1999 were forged. In his statement on oath paragraph 12 on page 262 of the record, the appellant agreed that he gave 9 shops to the school which he later exchanged for/with a house.

However, when cross-examined as DW4, the appellant said “I have never had any relationship with Madarasatul Ulumiddini Isamiyya.” The learned trial judge in his judgment held that a counter-claim is a separate action. For clarity, the portion of the judgment are hereunder presented: – “The 2nd issue for determination is whether the Defendant has proved his counter-claim to entitle him reliefs. The law is that a counter-claim, is a separate actions on it’s own to be established on the preponderance of evidence in a suit. See USMAN Vs. GARKE (2003) 14 NWLR (Pt. 840) 216.

The Defendant in his counter-claim alleged that the Plaintiffs concocted and made a false document purported to be a sale agreement between him and the Respondents and they circulated a story that he (the Defendant) is a trouble maker which story tarnished his image within his community. The 1st issue as per the Defendant counter is that of forgery. Forgery is criminal offence. It is the law that before a party can legally rely on fraud or forgery, that fact must not only be pleaded but particulars thereof must be provided in the pleadings. See EYA Vs. OLOPADE (2011) 5 SCNJ 98 AT 118.

I have closely ran through the counter-claim of the Defendant, I have not seen where the particular of the forgery was provided.

This state of affair means that the Defendant has not validly raised the issue of forgery to even be eligible to prove it and I so hold. The other issue raised by the Defendant/counter-claim is fabricating and spreading a story that he (the Defendant) is a trouble maker. The Defendant in his adopted deposition in chief that the Plaintiffs widely circulated the story that he is a trouble maker and is not keen on peaceful co-existence with the people of Naibawa Qtrs. And this has damaged his reputation.

This piece of evidence is a mere ipse dixit the Defendant which requires further proof as was held by the SC in the case of EGESIMBA Vs. ONUZURUIKE (2002) FWLR (Pt 128) 1386 AT 1410 – 1411. The Defendant/counter-claimant did not lead evidence from another person to confirm that the plaintiffs actually circulated the story which led to damaging the Defendant’s reputation. I do not therefore ascribe any weight to Defendant in that regard. (2) on the whole, I hold that the Defendant/counter claimant has not by credible evidence proved his counter-claim to entitle him his reliefs.

Consequently, his counter-claim is hereby dismissed.

Conversely, the Plaintiffs have by credible evidence proved their claim on preponderance of evidence. Consequently, judgment is hereby entered for the Plaintiffs against the Defendant as per that writ.” After the lower Court had reviewed the evidence before it, held that the testimony of PW1 in chief and during cross-examination were in line with their pleadings. That the witness was not shaken and he did not contradict himself. The lower Court held that evidence not challenged during cross-examination is a tacit acceptance so it held.

The lower Court found that the exchange of the 9 shops for the house of the defendant and the sale of 50 X 48 plot to the plaintiffs by the defendant were fully documented, in EBEM & ANOR Vs. NSEYEN (2016) LPELR – 40122 (CA), this Court held: “Documentary evidence is the best form of evidence because they are not only assailable but are more authentic than oral evidence.” In AIKI Vs.

IDOWU (2006) ALL FWLR (Pt. 293) 361, the Court re-echoed that: “Documents when tendered and admitted in evidence are like words uttered and do speak for themselves, they are more reliable and authentic than words from the word of an as they are neither transient or subject to distortion and misinterpretation but remains permanent and indelible through the ages.” For the words of wisdom supra, I am in agreement with the lower Court that where documents are tendered in a suit and the parties are represented by counsel.

The counsel to a party raised no objection when the opposition tendered the document and the Court admits the document, then such a party shall not be heard on the authenticity of such document. In the Court below, Exhibits A and A1, B and B1, C, D and D1 were pleaded and were all admitted in evidence without objection. The lower Court in my view was right to give weight to such pieces of evidence. On issue no.3, that has to do with award of damages for police intimidation. In paragraph 22 and 23 of the statement on oath of PW1 the witness avers: “22.

That on the 10th day of August, 2014, the defendant instigated same Police Offices to harass the Parent Teacher Association members of the Madarasatul Ulumiddini Islamiyya Na’ibawa. While holding a meeting at about 9:00pm. 23. That the harassment by the Police Officers on the said 10th August, 2014 resulted in same parents and the neighboring residents losing confidence in the Madarasatul Ulumiddini Islamiyya Na’ibawa thereby occasioned loss to the school reputation and finance.” The above averments were the reasons for the award of N500,000 against the appellant.

The respondent’s counsel addressed the issue as general damages. General damages per Rhodes–Vivour, JSC in CAMEROON AIRLINES Vs. OTUTUIZU (2011) LPELR – 827 (SC): “ … are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved.” Similarly, in UBN PLC Vs. ALHAJI AJABULE & ANOR (2011) LPELR 8239 (SC) Fabiyi, JSC held: “General damages are said to be damages that the law presumes and they flow from the type of wrong complained about by the victim.

They are compensatory damages for harm that so frequently results from the tort for which a party has sued, that the harm is reasonably expected and need not be alleged or proved. They need not be specifically claimed. They are also termed direct damages; necessary damages.” In the present circumstance, the award according to the learned trial judge was for Police intimidation.

On page 412 of the record, the lower Court inter alia held: “Consequently, judgment is hereby entered for the plaintiffs against the defendant as per that writ.” Paragraph C of the writ on page 2 of the record provides: C. N500,000.00 (Five Hundred Thousand Naira) damages for Police intimidation on the Parent Teachers Association members of Madarasatul Ulumiddini Islamiyya Nailbawa at their meeting on the 10th day of August, 2014. According to the cases cited supra, this award cannot be for general damages. Here, it was asked for and the purpose specified.

In my view therefore, having pleaded it, the respondents ought to justify the award. I have earlier quoted paragraphs 22 and 23 of PW1’s witness statement on oath. In his evidence in chief before the Court, PW1 needed to justify the claim. In his deposition, he averred that the appellant instigated same Police Officers to harass the Parent Teachers (sic) Association members while holding a meeting at about 9:00pm.

Here the deponent ought to mention venue of the meeting. During cross–examination, PW1 said: “I cannot recall the date the incident happened. I recall that we were holding a PTA meeting when we saw Police van in front of the defendants (sic) house I then told the gathering to close the meeting. The meeting was taking place inside the school, the school is fenced.” No tear gas was fired by the police. No police officer touched the gate of the school. No police officer even spoke with any member of the PTA yet members of the PTA were harassed.

The police van he saw was not even in front of the school. Yet, the school was alleged to have suffered loss of reputation and finance. In my view, the respondents needed to do more than what they did to earn that sum of money. It would have been different if evidence is adduced to justify it, having been specifically claimed. Section 40 of the 1999 Constitution (as amended) provides for right of peaceful assembly and association. If the police had tempered with this right, the respondents may be entitled to compensation. In addition, loss to the school ought to be proved.

An instance is if it can be shown that the presence of Police van in front of the appellant’s house had caused some of the pupils to leave the school. But none was even mentioned to justify the award. The trial judge was speculative to have awarded that sum just like that.

A suit is speculative if it is based on speculation. A suit is speculative if it is not supported by facts or very low on facts but very high on guesses. As Courts of law are not established to adjudicate on guesses but on facts, such actions are struck out. See A.G PLATEAU STATE Vs. A.G FEDERATION (2006) 3 NWLR (Pt. 967) 346 AT 419. For these reasons given, the award is set aside. Finally, let me re-emphasize that the appellate Court is only concern with decision of the trial Court. Once the decision is right, the appellate Court has no business with wrong reasons once decision is right.

See SOWUMI Vs. ALHAJI SOMS & ORS (1982) 17 ANLR (Pt. 1) 19. I am satisfied that the decision of lower Court is based on the evidence adduced. The matter before the lower Court did not involve Islamic Personal Law, therefore the lower Court rightly assumed jurisdiction. The counter-claim of the defendant/appellant borders on allegation of forgery. This had not been proved. The award of damages of N500,000.00 had not been proved. It is therefore set aside by me. Appeal partly allowed. Judgment of the lower Court affirmed. No order as to cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Usman Alhaji Musale, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion and the final orders made therein. The first issue raised by the parties for resolution in the appeal is whether the lower Court, the High Court of Kano State, possessed the jurisdictional competence to hear and determine the claims and the counter-claim of the parties.

Counsel to the Appellant is of the view the lower Court did not possess jurisdiction as the subject matter of the action is in respect of gift or waqf of land and that it was the Sharia Court that had jurisdiction. Counsel to the Respondent maintained otherwise and contended that the matter is in respect of ownership of land that it is the lower Court that had jurisdiction.

It is settled law that it is the case of the claimant as endorsed on the writ of summons and elaborated in the statement of claim or as endorsed on a counter-claim and elaborated in the statement of defence that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274.

And in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142.

Reading through the claims and the counter-claims of the parties and as elaborated in their pleadings, it is clear that the dispute in the present case was over the ownership of the land and building lying, being and situate in Na’ibawa Quarters in Kumbotso Local Government Area of Kano wherein the Madarasatul Ulumiddini Islamiyya carries out its activities.

The law is settled beyond peradventure that by the provisions of Section 39 of the Land Use Act and Section 272 (1) of the 1999 Constitution, the High Court has exclusive jurisdiction in all matters relating to land located within the areas designated as urban areas and subject to a statutory right of occupancy granted by the State Government while it shares concurrent jurisdiction with the customary Courts, the area Courts and other Courts of such equivalent jurisdiction in respect of all parcels of land located in the areas designated as rural or non-urban areas and subject to a customary right of occupancy granted by a Local Government – see for example, Aseimo Vs Abraham (1994) 8 NWLR (Pt 361) 191, Oyeniran Vs Egbetola (1997) 5 NWLR (Pt 504) 122, Adisa Vs Oyinwola (2000) 10 NWLR (Pt 674) 116, Akanbi Vs Salawu (2003) 13 NWLR (Pt 838) 637, Okonkwo Vs Okonkwo (2004) 5 NWLR (Pt 865) 87, Attorney General, Rivers State Vs Ohochukwu (2004) 6 NWLR (Pt 869) 340, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, The Minister of Works & Housing Vs Shittu (2007) 16 NWLR (Pt 1060) 351, Odetayo Vs Bamidele (2007) 17 NWLR (Pt 1062) 77, Adetayo Vs Ademola (2010) 15 NWLR (Pt 1215) 169, Ikenne Local Government Vs West African Portland Cement Co. (2011) 12 NWLR (Pt 1261) 223.

The lower Court thus possessed jurisdiction to entertain the matter. The second complaint of the Appellant was against the evaluation of evidence carried out by the lower Court, that the lower Court did not properly evaluate the oral and documentary evidence led by the parties in making its findings and conclusions.

The law is trite that it is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

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

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

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

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

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

This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” Reading through the submissions of Counsel to the Appellant on his complaints vis-à-vis the notes of the evidence led before the lower Court, I am in total agreement with the lead judgment that Counsel to the Appellant did not make out a case showing any perversity in the findings and conclusion reached by the lower Court on the evidence led on the ownership of the land and house in dispute.

This Court thus has no reason to tamper with them. The third complaint of the Appellant was against the award of the sum of N500,000.00 made in favor of the Respondents by the lower Court. The Respondents claimed the sum of N500,000.00 as damages for police intimidation of the members of the Parents Teachers Association of Madarasatul Ulumiddini Islamiyya at their meeting of the 10th of August, 2014.

Now, damages may be defined as the disadvantage which is suffered by a person as a result of the act or default of another. It may also be defined as a loss or deterioration caused by the negligence, design or accident of one person to another, in respect of the latter’s person or property. Damages are the pecuniary recompense given by the process of law to a person for the actionable wrong that another has done. It is compensation in money for loss or damage.

Thus, an injury produces a right in them who have suffered any damage by it to demand reparation of such damage from the authors of the injury. In other words, damages is a pecuniary compensation or indemnity which may be recovered in the Courts by any person who has suffered loss, detriment or injury, whether to his person, property, or right through the unlawful act or omission or negligence of another. It is a sum of money awarded to a person injured by the tort of another.

It is money compensation sought or awarded as a remedy for a breach of contract or tortuous acts – Borno State Urban Planning & Development Board Vs Bams Investment (Nig) Ltd (2017) LPELR-43290(CA), Aero Contractors Co. (Nig) Ltd Vs Oguine (2018) LPELR 46764(CA).

It is settled law that he who asserts must prove –  University of Agriculture, Makurdi Vs Sugh (2021) LPELR-54211(CA). In other words, the party who claims damages must lead credible evidence to prove the alleged act of the adversary that caused him injury. The Respondents thus had the onus to prove by cogent evidence the nature of the police intimidation that they suffered by reason of the action of the Appellant and the attendant injury to them to warrant the award of the sum of N500,000.00 claimed as damages.

I am in concurrence with the lead judgment that the Respondents led no such evidence and that they were therefore not entitled to the award of damages claimed.

The lower Court did not follow established legal principles in making the award of damages and this Court is empowered to interfere in such circumstances – Erebor Vs Erameh (2020) LPELR-49671(CA), Shmo Vs Abuul (2020) LPELR-49947(CA). The award is liable to be set aside. I agree that the appeal has some merit and it succeeds in part.

I too affirm the judgment of the High Court of Kano State delivered in this suit by Honorable Justice Ahmad Tijjani Badamasi on the 23rd of September, 2016, save for the portion that awarded N500,000.00 as damages in favor of the Respondents and which portion I hereby set aside. I abide by the order on costs in the lead judgment. ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, USMAN ALHAJI MUSALE, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit.

I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

Judgment

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant instituted this appeal against the decision of the High Court of the Federal Capital Territory Abuja; delivered by L. H. Gummi (RTD CJ); on 13th December, 2011; in SUIT NO: FCT/HC/CV/363/2008. The brief fact of the case is that the Appellant and the 3rd Respondent were at different times granted Statutory Right of Occupancy by the 1st and 2nd Respondents over Plot No. 256, Cadastral Zone B05, Utako District Abuja.

While the grant to the Appellant was made on 11th December, 2006 and for the purpose of a Petrol Filling Station, the grant to the 3rd Respondent, on the other hand, was made on 25th March, 2006 and for Residential purpose. ​It was contended that the original land use for the said plot of land is for residential purpose and that the 1st Respondent set up a Committee on review of cases of revoked titles in the FCT. Part of the committee’s recommendation was that all lands in the FCT be returned to their original land use as provided in the FCT master plan.

Consequent upon the work of the above mentioned committee and the recommendations made therein, Plot No. 256, Cadastral Zone B05, Utako District, Abuja was reverted to its original purpose which is residential and reverted to the 3rd Respondent to whom the land was allocated initially for residential purpose.

The trial Court in its judgment refused the claims of the Appellant; but instead granted the Counter-Claim of the 3rd Respondent as follows: “(1) That the purported grant to the Plaintiff/Defendant the Counter-Claim as evidenced by the offer of Statutory Right of Occupancy dated 11th day of December 2006 is illegal, null and void- in view of the Counter-Claimant’s prior and subsisting title, Rights and interest in and over all that property known as Plot No. 256 situated at Cadastral Zone B05, Utako District, Abuja measuring 5,435.96m2. (2) That the Plaintiff (in the Counter-Claim) is the beneficial owner and therefore entitled to the exclusion of any other person whatsoever and how-so-ever to all that property known as Plot 256 situated at Cadastral Zone B05, Utako District, Abuja measuring 5,435.96m2.” ​The Appellant was dissatisfied with the decision of the trial Court and has approached this Court relying on an Amended Notice of appeal filed on 14th August, 2012 and deemed properly filed and served on 25th June, 2014.

Counsel on both sides filed relevant processes as required by the rules of the Court and the appeal was heard on 29th November, 2021. O.J. ABOJE Esq. with T.A.

OSAJI Esq., appeared for the Appellant, adopted and relied on the Appellant’s brief of argument filed on 30th September, 2016; but deemed properly filed and served on 4th December, 2017; the Appellant’s reply to the 1st and 2nd Respondents brief of argument filed on 5th February, 2021 and deemed properly filed and served on 29th November, 2021; the Appellant’s reply brief of argument to the 3rd Respondent’s brief of argument filed on 5th February, 2021 and deemed properly filed and served on 29th November, 2021 in urging the Court to allow the appeal. F.S. JIMBA ESQ., with B.W.

SEKPE ESQ., and FRANK ACHILIKE ESQ., appeared for the 1st and 2nd Respondents; adopted and relied on the 1st and 2nd Respondent’s Brief of Argument filed on 15th April, 2019; but deemed properly filed and served on 19th October, 2020; in urging the Court to dismiss the Appeal. ​MALLAM MOHAMMED SHUAIB Esq., with E.F. ABAH Esq., appeared for the 3rd Respondent; adopted and relied on the 3rd Respondent’s brief of argument filed on 8th March, 2018 and deemed properly filed and served on 19th November, 2018 in urging the Court to dismiss the appeal. In the Appellant’s brief of argument settled by O.

J. Aboje Esq., the Appellant formulated 5 issues for determination as follows: 1. Whether the trial Court did not fail to evaluate Exhibit “D5” which could have proved that the 3rd Respondent’s title in Plot 256, Cadastral Zone B05, Utako District, Abuja was withdrawn/revoked without any complaint from the 3rd Respondent thus making Exhibit “O3” irrelevant in the face of the Appellant’s grant evidenced by Exhibit “P3” and “04”? 2.

Whether the 3rd Defendant having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked 3.

Whether Exhibits “P6”, “PSi”. and “P10” (Search Reports/File Views) duly admitted in evidence at the trial can be said to be fake or lack probative value because it was not shown that they were applied for by the Appellant and the legal fees paid to obtain them? 4. Whether a document, including a Site Map (Exhibit 07), not signed by any person, in other words not made by any person, is admissible in evidence? 5.

Whether because the Court below determined that the title of the 3rd Respondent is prior in time to that of the Appellant relieves the Court of the bounden duty to determine that a document, Exhibit 06 – revocation letter to the Plaintiffs was made or not made lis pendens which issue was properly raised in the Final Argument of the Plaintiff/ Appellant. F. S.

Jimba Esq., in the 1st and 2nd Respondent’s brief of argument raised a sole issue for determination thus: Whether given the facts and circumstances of this case, the lower Court was right to have entered judgment dismissing the claim of the Appellant and declaring title to Plot No. 256, cadastral Zone BOS, Utako District, Abuja in favour of the 3rd Respondent. ​Mallam Mohammed S.

Shuaib Esq., in the 3rd Respondent’s brief of argument submitted 4 issues for determination as follows: a) Whether the learned trial Judge suo motu raised any fresh issue on the basis of which he entered judgment for the 3rd Respondent? b) Whether in view of the mandatory provisions of Section 28 of the Land Use Act 1978, the Third Respondent’s title in and over the property in dispute can be said to have been revoked having regards to the pleadings and evidence adduced before the lower Court, particularly EXHIBIT D5? c) Whether EXHIBITS P6, P9, P10 & D7 are weighty or sufficient enough to invalidate the 3rd Respondent’s title over the property in dispute? d) Whether EXHIBIT D6 was made during the pendency of the case?

I have read carefully the issues formulated by the parties respectively. The Appellants’ 5 issues cover his grouse and will be adequate in the determination of this appeal; however the Appellant’s issues 1, 3 and 4 are interwoven and I chose to resolve the issues as follows: Issues 1, 3 and 4 as issue 1 thus: Whether in the circumstance of this case, the trial Court properly evaluated the documentary evidence in the suit.

Issue 2 as issue 2 thus: Whether the 3rd Defendant having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked And issue 5 as issue 3 thus: Whether because the Court below determined that the title of the 3rd Respondent is prior in time to that of the Appellant relieves the Court of the bounden duty to determine that a document, (Exhibit 06 – revocation letter to the Plaintiffs was made or not made lis pendens which issue was properly raised in the Final Argument of the Plaintiff/Appellant.

SUBMISSIONS ON ISSUE 1 Whether in the circumstance of this case, the trial Court rightly admitted and properly evaluated the documentary evidence in the suit. O. J. Aboje in the Appellant’s brief of argument contended that the trial Court did not evaluate the content of Exhibit D5 which is the Executive summary of the revocation committees’ decision; but only proceeded on the footing that the said Exhibit is irrelevant in the eyes of the law. He relied on the cases of: CHUKWU CONST. CO. LTD V. UWECHIA (2000) 2 NWLR (PT. 643) P. 92 PP. AT 100 PARA A; 102 PARAS B-C ATTAH V.

STATE (2009) 15 NWLR (PT. 1164) P. 284 PP 308-309 PARAS. H-A.; EKONG V. OTOP (2014) 11 NWLR (PT. 1419) P. 549 PP AT 573 – 574 PARAS F-A; EYO V. INYANG (2001) 8 NWLR (PT. 715) P 304 PP AT 328 PARA. F.

The learned counsel in support of his argument elaborately demonstrated the content of Exhibit D5 and submitted that as at the date of Exhibit D5 which contained the advice of the 1st and 2nd Respondents’ Revocation Committee, the title of the 3rd Respondent in the disputed Plot was no longer subsisting on the ground that it had been withdrawn by the 1st Respondent and granted to the Appellant on 11th December, 2006 without any complain from the 3rd Respondent who was allocated another plot. ​The Appellant’s counsel contended that Exhibits P6, P9 and P10 are original copies of Search Reports/File Views issued by the 1st and 2nd Respondents to the Appellant; he submitted that these Exhibits show that the disputed plot is not encumbered by any other allottee including the 3rd Respondent except the Appellant.

He further submitted that the trial Court was wrong to have treated the said Exhibits with a pinch of salt on the reason that there is doubt on the way the documents were generated. The learned counsel submitted that Exhibit D7 is inadmissible documentary evidence on the ground that same was not signed by any person and as such has no origin as to its maker. He cited the cases of: OMEGA BANK PIC V. O.B.C LTD (2005) 8 NWLR (PT. 928) P. 547 PP AT 576; JINADU V. ESUROMBI-ARO (2009) 9 NWLR (PT. 1145) P. 55 PP AT 81 PARAS A-C; ABEJE V. APEKE (2013) 43 WRN P. 127 PP 145.

The learned counsel urged the Court to resolve this issue in favour of the Appellant. ​The learned counsel for the 1st and 2nd Respondents on this issue submitted that there is no evidence from the record of appeal to show that the Appellant filed a reply on the averments of the 3rd Respondent that his right and interest over the disputed plot of land which was prior to that of the Appellant was never revoked.

He added that by the provision of Section 123 of the Evidence Act, 2011, the fact of the non-revocation of the title of the 3rd Respondent over Plot No. 256, Cadastral Zone B05, Utako District, Abuja is deemed admitted, established and requires no further proof. He cited the cases of: ANDONY VS. AYI II & ORS. (2004) ALL FWLR (PT. 227) 444 AT 482, ELENDU VS. EKWOABA (1995) 3 NWLR (PT. 386) 704 AT 747 AND OLALE VS. EKWELENDU (1989) 7 SCNJ (PT. 2) 62 AT 102.

The 1st and 2nd Respondents’ counsel contended that the trial Court was right when it held that lis pendens does not apply to this case in terms of Exhibit D6 because no interest or title was acquired by any person whatsoever in relation to the disputed land by means of Exhibit D6. Mr. Shuaib in the 3rd Respondent’s brief of argument contended that the trial Court properly evaluated Exhibit D5; he continued that the said Exhibit was not signed or served on the 3rd Respondent contrary to Section 28 (7) of the Land Use Act.

He referred the Court to paragraphs 1 and 2 of page 232 of the Record of Appeal and relied on the case of: OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) LPELR-2636; in arguing the effect of unsigned document. The learned counsel submitted that there is no appeal against the pronouncement of the trial Court that there is no revocation in the mandatory terms of Section 28 of the Land Use Act.

In reply to paragraph 5.04 of the Appellant’s brief of argument, the learned counsel for the 3rd Respondent submitted that the Appellant misconceived the fact in this issue; he added that what should be in contention is not whether the documents are admissible in the light of how they were obtained or whether probative value has been attached to them as argued by the Appellant but rather how much weight was attached to the documents admitted in evidence. He cited the cases of: BURAIMOH V. KARIMU (1999) 9 N.W.L.R. PART 618 AT PAGE 321 PAR F; A.G OYO STATE V.

FAIR LAKES HOTELS (NO 2) (1989) 5 N.W.L.R (PART 121) 255 AT 292; ASUQUO V. EYO (2014)5 N.W.L.R (PT. 1400) 247, I.M.B (NIG) LTD V. DABIRI (1998)1 N.W.L.R (PT. 533) 284 in further submitting that the fact that P6, P9 and P10 were admitted in evidence in the proceedings does not mean that such documents must be acted upon or that they must be given the heaviest of weights. The learned counsel submitted that the trial Court was right and acted within the provisions of Section 34 of the Evidence Act.

He urged the Court to dismiss the appeal. ​RESOLUTION OF ISSUE 1 The settled principle of law is that evaluation of evidence and ascription of weight thereto remains the province of the trial Court which heard and observed the demeanor of the witnesses and is consequently in a better position to form an opinion as to the credibility of the said witnesses. See: EMMANUEL EGHAREVBA V. FEDERAL REPUBLIC OF NIGERIA & ORS (2016) LPELR-40045 (SC).

It is the contention of the Appellant that Exhibit D7 was not signed; in other words the same was not made by any known person and therefore inadmissible in evidence. On the legal effect of unsigned document, the general rule is that unsigned document is worthless and does not have a legal status. It does not matter whether the document in question was tendered by an alleged maker. The maker who allegedly made a document must sign it for it to be examined by a Court of law. Where a document tendered in evidence as primary evidence is not signed, it cannot be relied upon. See: MR.

LABARAN MAKU V. ALHAJI UMARU TANKO AL-MAKURA & ORS (2016) LPELR-48123 (SC); IN OMEGA BANK (NIG.) PLC. V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964 AT 1993-1994, (2005) 8 NWLR (PT. 928) 547; GLOBAL SOAP & DETERGENT IND. LTD V. NAFDAC (2011) ALL FWLR (PT. 599) 1025 AT 1047 where the Supreme Court held thus: “It is my considered view that Exhibit P20 not being a signed document by the maker thereof, has no weight whatsoever.” Exhibit D7 as seen at page 38 of the records of appeal is an unsigned survey map certified at Abuja Geographic information systems.

On the effect of such unsigned survey plan, the Supreme Court in ALHAJI A. ALIYU V. DR JOHN ADEWUNMI SODIPO (1994) LPELR-423 (SC) held as follows: “The requirements for countersignature relate to matters of evidence and the production of the document in evidence and a non-compliance, at any rate at that stage, with the Survey Act does not render the plan void or useless.

I need add that where a plan is tendered per se but does not conform with the requirements of Section 3 (b) of the Survey Law (or Act), it may nevertheless be admitted in evidence “if good cause (is) shown to the Court” for non-compliance.” The Supreme Court also in ASHAKACEM PLC V.

ASHARATUL MUBASHSHURUN INVESTMENT LIMITED (2019) LPELR-46541 (SC) held thus: “The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible.” The Survey Act of the FCT in Section 3 (1) (b) provides as follows: 1.

No map, plan or diagram of land. a) … b) If prepared after 16th May 1918, shall except for good course shown to the Court, be admitted in evidence in any Court unless the map, plan or diagram i. Has been prepared and signed by a Surveyor or is a copy of a map, plan or diagram so prepared and signed is certified by a surveyor as being a true copy; And: ii.

Has been examined by the surveyor Department and bears the counter-signature of the Director. ​From the authorities referred to above and the Survey Act of the FCT in Section 3 (1) (b); it is the position of the law that the mere fact that a document and a plan as in this case was not signed does not automatically make it inadmissible in law; it is only where there is no shown good course or oral evidence clarifying the document and its authorship that the plan and/or document will be inadmissible in evidence.

Consequently, the mere fact that Exhibit D7 was not signed will not outrightly make it inadmissible unless there was no oral evidence clarifying the authorship of Exhibit D7. Exhibit D7, though an unsigned survey map, was certified at Abuja Geographic information systems. This means the 1st and 2nd Respondents by the certification clarified that the referred exhibit emanates from them and is authentic. In the circumstances of the case therefore; the trial Court was right in admitting Exhibit D7 in evidence.

On whether Exhibit P6, P9 and P10 admitted in evidence can be said to lack probative value, for failure to present fees paid to obtain them. There is a difference between the admissibility of a document and the probative value to be attached to it. Admissibility is based on relevance, while probative value depends not only on relevance but also on proof. Evidence is said to have probative value if it tends to prove an issue. See: ACN V. LAMIDO (2012) 8 NWLR (1303) 560; BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246; BELGORE V. AHMED (2013) 8 NWLR (PT.1355) 60 AT 100 E-F; WIKE EZENWO NYESOM V.

HON. (DR.) DAKUKU ADOL PETERSIDE & ORS (2016) LPELR-40036 (SC). In considering the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement. See: BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246. The Appellant contended that Exhibits P6, P9 and P10 are original copies of search reports/file views issued by the 1st and 2nd Respondents.

The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist. See: Section 131 (1) of the Evidence Act, 2011; SHARING CROSS EDUCATIONAL SERVICES LIMITED V. UMARU ADAMU ENTERPRISES LIMITED & ORS (2020) LPELR-49567(SC); HERITAGE BANK LIMITED V. DON & CHYKE NIGERIA LIMITED & ANOR (2020) LPELR-52423(CA).

The 3rd Respondent in his Statement of Defence contested the validity of the referred Exhibits on the ground that they were acquired fraudulently; were not signed and proper procedure was not followed for conducting search at AGIS as prescribed fees was not paid nor formal application made. Parties to a civil suit have the option of shifting the burden of proof by adducing cogent, concrete and credible evidence to contradict the content of an exhibit. In civil suits, unlike criminal cases, the burden of proof keeps oscillating among the parties. See: UNITY BANK PLC V.

COLONEL BELLO MOHAMMED AHMED (RTD) (2019) LPELR-47395(SC); UNIVERSITY OF ILORIN & ORS V. DR (MRS.) AIZE IMONOKHOME OBAYAN (2018) LPELR-43910 (SC). ​The burden of proving the legality of the mode of acquisition of Exhibits P6, P9 and P10 swung back to the Appellant to adduce further evidence on the allegation of fraud made by the 3rd Respondent.

I agree with the position of the trial Court that the allegation of the 3rd Respondent does not affect the admissibility of Exhibits P6, P9 and P10 but will affect the weight to be attached to the said Exhibits as there is doubt on the authenticity of the documents following the failure of the Appellant to make available application for search and payment of prescribed search fees at AGIS.

On whether the trial Court properly evaluated Exhibit D5; I have painstakingly examined the records of appeal and it is not in dispute that both the Appellant and the 3rd Respondent were allocated the disputed land. It is equally clear that the 3rd Respondent’s title came earlier before that of the Appellant. However, the Appellant’s contention is that Exhibit D5 is a proof that the use of the land in dispute was changed to commercial and therefore means that the 3rd Respondent’s grant over the disputed land was withdrawn/revoked after the use of the plot was changed by the Hon.

Minister of FCT. Section 28 (6) and (7) of the Land Use Act 1978, deals with revocation and it provides as follows: “(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder. (7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this Section or on such later date as may be stated in the notice.” (underlined emphasis is mine).

The wordings of the above reproduced statute are clear and unambiguous and should be given its plain or ordinary meaning. See: SKYE BANK PLC V. VICTOR ANAEMEM IWU (2017) LPELR-42595 (SC). Flowing from the above Section of the Land Use Act; before a right of occupancy is deemed revoked notice shall be given to the holder of such right.

In exercising the Governor’s/Minister’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of legal notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor/Minister. See: NIGERIA TELECOMMUNICATION LTD. V. CHIEF OGUNBIYI (1992) 7 NWLR (PT. 255) 543.

The Appellant placed heavy reliance on Exhibit D5, the said Exhibit is seen at page 38 of the records of appeal and it is the Executive Summary of the Revocation Committee’s decision; in the last paragraph it was resolved thus: “Plot 256 Utako measuring 5538.57sqm was allocated to Arab Autayada (pl. 20221) on 25/03/2006 for residential development. The allocation for Auta Yadam was replaced with Plot 89 Utako on 07/07/2006 and Plot 255 Utako was then Re allocated to Na’Adade Petroleum limited (misc 85624) on 12/11/2006 for petro filling station.

The replacement made to Arab Auta Yadam, Plot 89 Utako is also a plot that has a case of multi allocation (the Festus Porbeni case) which has been resolved by the committee in favour of Abubakar Garba being the first Allottee (on 23/03/2006) Note that the land Use for Plot 256 Utako is Residential before it was changed to Commercial Arab Auta Yadam is requesting that his title to Plot 256 Utako be retained by him.” ​Let me state here that Exhibit D5 is not a revocation Notice and did not pretend to be one; it was not issued by or on behalf of the FCT Minister in compliance with Section 28 of the Land Use Act.

There is no proof in the record of appeal that revocation Notice was ever issued or served on the 3rd Respondent; Although it is correct that the use of the disputed land was residential when it was allocated to the 3rd Respondent, and was re allocated to the Appellant for commercial use. The question that comes to mind is; can the 1st and 2nd Respondents legally re-allocate land with a subsisting and valid right of occupancy without revocation of the title of the previous holder? I answer the above question in the negative.

Where a right of occupancy is involved, either in the nature of a statutory or customary right of occupancy upon the issuance of a right of occupancy or through a deemed right of occupancy by operation of Sections 34(2) and 36(4) of the Land Use Act, a later grant of a right of occupancy under Section 5 (1) cannot ipso facto, by operation of Section 5 (2) extinguish the earlier right already vested. It will be necessary first to revoke that earlier right of occupancy for overriding public interest or for any of the other reasons as specified under Section 28 of the Land Use Act.

See: OLOHUNDE V. ADEYOJU (2000) 10 NWLR (Pt. 676) 562 at 597; ALHAJI AMINU DANTSOHO V. ALHAJI ABUBAKAR MOHAMMED (2003) LPELR-926 (SC). Although, all land within the FCT can be validly revoked by the Minister of FCT; but such revocation shall be done in compliance with Section 28 of the Land Use Act. In NIGERIAN ENGINEERING WORKS LTD V.

DENAP LTD (2001) 18 NWLR (PT. 746) P. 741, the Supreme Court held that pursuant to Section 44 of the Land Use Act, ​the requisite notice of revocation shall be effectively and validly served as provided under Section 44 (a)-(e) of the Act, and that failure to serve the same renders any purported revocation null and void. See also: THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN, SANNI ABACHA V. EKE-SPIFF (2009) 1 NWLR (PT. 800) P.114; ONONUJU V. A.G. ANAMBRA STATE (1998) 11 NWLR (PT. 573) P. 320-322; CIL RISK & ASSET MANAGEMENT LIMITED V. EKITI STATE GOVERNMENT & ORS (2020) LPELR- 49565 (SC).

In the absence of notice of revocation of the right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorized by the Governor is ineffective. See: A-G BENDEL STATE V. AIDEYAN (1989) 4 NWLR. (PT 118) 645; NIGERIA ENGINEERING WORKS LTD V. DENAP LIMITED (1997) 10 NWLR (PT. 525) 481; USMÄN KAYODE OLOMODA V. MR. OLANIYI MUSTAPHA & ORS (2019) LPELR-46438 (SC). ​I have said in this judgment that there is no proof of service of revocation Notice on the 3rd Respondent and that Exhibit D5 does not amount to a revocation Notice.

Where there are two contending titles over a plot of land; the Supreme Court in ALHAJI UBAN KARI V. ALHAJI ISA ABBA GANARAM & ORS (1997) LPELR-1666(SC) held that: “Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st Respondent has no effect Whatsoever on its authenticity.” See also: EMMANUEL ILONA V.

SUNDAY IDAKWO & ANOR (2003) LPELR-1496(SC); ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737 (SC); DZAWUA V. ANDZA & ORS (2019) LPELR-47619 (CA). From all I have said so far, I fail to fault the decision of the trial Court; I hold that the trial Court properly evaluated Exhibit D5 and was right in his conclusion on this issue. I resolve this issue in favour of the Respondents and against the Appellant.

SUBMISSIONS ON ISSUE 2 Whether the 3rd Defendant having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked.

The learned counsel for the Appellant contended that the 3rd Respondent did not claim any relief in respect of the matters contained in Exhibit D5 touching on the earlier withdrawal/revocation of his title before the grant of the same plot to the Appellant. He went on to say that the Court below dealt with the illegality of the Appellant’s grant while, that of the 3rd Respondent is prior in time without evaluating whether the 3rd Respondent as a Defendant/Counter-claimant in the action discharged the burden of proof as a Claimant in the action.

He submitted that the trial Court did not evaluate the documents tendered by both the 3rd Respondent on one side and the 1st and 2nd Respondents on the other side yet granted 3rd Respondent’s reliefs in its Counter-Claim without the 3rd Respondent discharging the burden of proof of his Counter-claim for title to land. He urged the Court to resolve this issue in favour of the Appellant. The 1st and 2nd Respondents’ counsel on this issue submitted that the burden is on the Appellant to prove that the title of the 3rd Respondent was not only revoked but validly revoked in accordance with the law.

He added that the contention by the 3rd Respondent that an Offer of Grant of Statutory Right of Occupancy over Plot No. 256, Cadastral Zone B05, Utako District, Abuja was made to him on 25th March, 2006 and since a statutory right of occupancy has a lifespan of ninety-nine (99) years, there is a presumption that a grant made in March, 2006 is still in existence.

It is for a party contending otherwise such as the Appellant herein to rebut such presumption which the Appellant failed to do in this case. ​The learned counsel contended that in paragraph 3.10 at page 11 of the Appellant’s Brief of Argument it was argued by the Appellant that “it would then seem to appear that the Court below decided the fate of the action on the basis of priority and not on revocation because no revocation letter was tendered by any of the parties showing that the 3rd Respondent’s grant to the plot was revoked before same was allocated to the Appellant”; he submitted that the Appellant clearly conceded and acknowledged that there was no revocation in respect of the disputed land.

The learned counsel submitted that the Appellant is disentitled to rely on Exhibit D5 which is the report of a ministerial review committee in a bid to establish title to Plot 256, Cadastral Zone B05, Utako District, Abuja because he had contended that the plot is not subject to any ministerial review in its paragraph 11 of the Statement of Claim.

The 1st and 2nd Respondents’ counsel contrary to the argument in issue two of the Appellant’s brief of argument that the 3rd Respondent did not make any claim in his counter-claim touching on or challenging the revocation of his statutory holding of Plot 256, Cadastral Zone B05, Utako District, Abuja. He argued that the record shows clearly that the 3rd Respondent pleaded the same at paragraph 4 of his statement of defence and paragraph 2 of his counter-claim.

See: Pages 88 and 91 respectively of the record of appeal. ​The 3rd Respondent’s counsel on the other hand argued that his title to the property in dispute was never revoked as at the time the 1st Respondent purported to have granted the Appellant title to the property in dispute on 11th December, 2006. He argued in line with the submissions of the 1st and 2nd Respondents that the Appellant has misconceived the issue herein.

The learned counsel submitted that from the pleadings and evidence adduced before the lower Court, his title to the property, which is earlier in time to that of the Appellant has not been shown to have been revoked. He relied on the decision of the Court in: GEGE V. NANDE (2006) 10 NWLR (PT. 988) 256 AT 284 PARAGRAPHS F-G; IBRAHIM V. MOHAMMED (2003) 6 NWLR (PT. 817) 615; NIGERIA ENGINEERING WORKS LTD V. DENAP (2001) 18 NWLR (PT. 746) 726; UGO V. OBIEKWE (1989) 1 NWLR (PT. 99) 566.

He further submitted that a Right of Occupancy cannot be revoked without the service of a revocation notice and that there is no evidence to show that any revocation notice has been served on the 3rd Respondent. He referred to Section 28 of the Land Use Act and the cases of: NIGERIAN ENGINEERING WORKS V. DENAP (SUPRA) AT 757 PARAGRAPHS E-G AND ALSO THE CASE OF OTO V. ADOJO (2003) 7 NWLR (PT. 820) 636 AT 666-667. ​He urged the Court to hold that without service of the revocation notice on the 3rd Respondent, his title cannot be said to have been extinguished.

RESOLUTION OF ISSUE 2 On whether the 3rd Respondent having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title, the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked. I have held in issue one above that where there is a subsisting right of occupancy as in the instant case at hand, it is good against any other right.

The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The effect of failure to revoke the 3rd Respondent’s title to the disputed land, means that he is still the only valid and subsisting title holder over the said land until the same is revoked in full compliance with Section 28 of the Land Use Act. ​What I am trying to say in essence is that, the Appellant cannot be said to have a valid title to the disputed land until the 3rd Respondent’s title is validly revoked.

Having held in issue 1 above that the 3rd Respondent is still the valid and subsisting title holder to the disputed land, it simply means that the reallocation of the land to the Appellant is only a mirage and of no effect. See: ORIANZI V. A.G. RIVERS STATE & ORS (supra). I agree with the decision of the trial Court that nothing was taken from the 3rd Respondent as the 1st and 2nd Respondents as at the time of allocating the disputed land to the Appellant had no title to confer on the Appellant, the same having been earlier conferred on the 3rd Respondent without prove of any revocation.

Accordingly, in the Counter-claim, there was nothing for the 3rd Respondent to prove when there is no dispute that he was earlier in time granted the land in dispute and the said allocation was not at any time revoked in line with Section 28 of the Land Use Act except for the Land Revocation Committee’s recommendation in Exhibit D5 which I have agreed with the learned trial Judge does not amount to revocation of 3rd Respondent’s land. For what I have said above, I resolve this issue in favour of the Respondents and against the Appellant.

SUBMISSIONS ON ISSUE 3 Whether because the Court below determined that the title of the 3rd Respondent is prior in time to that of the Appellant relieves the Court of the bounden duty to determine that a document, (Exhibit 06 – revocation letter to the Plaintiffs was made or not made lis pendens which issue was properly raised in the Final Argument of the Plaintiff/AppeIIant.

The learned counsel for the Appellant on this issue noted Exhibits P6, P9, and P10 which are Search Reports/File Views issued by the 1st and 2nd Respondents to the Appellant to show that the disputed plot is not encumbered by any other allottee including the 3rd Respondent except the holding of the Appellant on the Plot.

The learned counsel contended that the trial Court failed to make pronouncement on the Appellant’s objection that Exhibit D6 was made lis pendens and as such of no effect. ​The learned counsel for the 1st and 2nd Respondents on this issue contended that the trial Court was right to hold that lis pendens does not apply to this case in terms of Exhibit D6 because no interest or title was acquired by any person whatsoever in relation to the disputed land by means of Exhibit D6.

He continued that Exhibit D6 is irrelevant and immaterial to the determination of the real issue in this appeal and that the argument on whether the doctrine of lis pendens or a document made while proceedings are pending is of no moment in this appeal. The 3rd Respondent’s counsel on this issue submitted that Exhibit D6 could not have been made during the pendency of the action and even if it was so made, it did not affect the findings of the lower Court that the 3rd Respondent’s title was earlier in time.

He added that the said Exhibit was made on 26th September, 2008 that is about 2 months before the filing of the suit and was served on the Appellant on December 2008, a month after the filing of the action. The learned counsel submitted that the Appellant’s issue 5 is a mere academic exercise. Let me quickly state here that I have read and taken note of the arguments contained in the Appellant’s reply brief of argument to the 1st and 2nd Respondents’ and 3rd Respondent’s briefs of arguments respectively; I shall refer to them in the course of resolution of the appeal when necessary.

RESOLUTION OF ISSUE 3 On whether Exhibit 06 which is a revocation letter to the Appellant was made or not made lis pendens. By virtue of my decision in issues 1 and 2 of this judgment, whether or not the Appellants title was revoked or not has become a mere academic exercise. I have already made pronouncement on the title of the disputed land which is to the effect that the 3rd Respondent remains the valid and subsisting title holder of the subject matter of this appeal.

An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. See: DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR- 55887(SC); AGBAKOBA V. INEC (2008) 18 NWLR (PT. 1119) 489; ADEOGUN V. FASHOGBON (2008) 17 NWLR (PT. 1115) 149 SC; DR UMAR ARDO V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2017) LPELR-41919(SC); IJAODOLA V.

UNILORIN GOVERNING COUNCIL (2018) 14 NWLR (PT. 1638) 32 AT 54, PARAS. D-E; ABRAHAM V. AKEREDOLU (2018) 10 NWLR (PT. 1628) 592 AT 595, PARAS. G-H; MR. BABAJIDE SANWO-OLU & ANOR V. PRINCE (PROF.) IFAGBEMI AWAMARIDI & ORS (2019) LPELR-50828 (SC).

In all, I hold that the appeal lacks merit and the same is hereby dismissed. The judgment of the High Court of the Federal Capital Territory, Abuja delivered by L. H. Gummi (RTD CJ) on 13th December, 2011 in SUIT NO: FCT/HC/CV/363/2008 is hereby upheld. I make no order as to costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, UCHECHUCKWU ONYEMENAM, JCA. I agree that the appeal is devoid of merit and I also dismiss it. I abide by all the orders made by my learned brother, including the order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed. No order as to costs.

Judgment

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Federal High Court, Lagos Division (“the lower Court” or “the trial Court”) delivered on the 9th day of June 2008 coram D.D Abutu, J. in Suit No: FHC/L/CS/06/2003 wherein the trial Court gave judgment in favour of the Respondent. The Respondent as Plaintiff commenced the action by a Writ of Summons and Statement of Claim dated 3rd January, 2003. The suit was consolidated with 13 other suits by the Order of the trial Court made on the 3rd of March, 2004.

The Respondent thereafter filed an Amended Statement of Claim dated 25th May, 2004 against National Insurance Corporation of Nigeria, the Defendant at the lower Court. The reliefs sought by the Respondent as endorsed on the Amended Statement of Claim are as follows: 1. A Declaration that the defendant has a statutory duty to pay the Plaintiff his pension entitlements and accrued arrears thereof, in line with the following Federal Government circulars: a. Ref No B.63216/S.1/X/T3/105 dated 30th January, 1997 b. Ref No B.63216/S.1/X/T3/124 dated 7th January, 1998 c.

Ref No SWC/S/04/S.8/25 dated 11th May, 1999 and d. Ref No B.63216/S.1/X dated 6th July, 1999 e. Ref No SWC.OH/VOL.IV/1011 of 17th May, 2000 2. An Order of the Mandatory injunction compelling the defendant to pay to the Plaintiff forthwith, the accrued arrears of his pensions entitlements as at 31st December 2002 in the sum of N1,321,801.52 calculated in accordance with the circulars referred to above. 3.

A declaration that the Plaintiff is entitled to the payment of N35,485.91 monthly pension from 31st December 2002 being the harmonized and revised pension due and payable to the plaintiff in line with the Federal Government circulars listed above. 4.

An Order of mandatory injunction compelling the defendant to pay the plaintiff his monthly pension in the sum of N35,485.91 calculated in line with the directives of the Federal Government of Nigeria contained in the circulars listed above and to make up any shortfall between this monthly payment and the amount of the monthly pensions paid to the plaintiff subsequent to the filing of the action. ​In response to the suit, the Appellant filed a Statement of Defence on 14th September, 2003.

In the course of the proceedings, the Respondent vide an Application dated 10th June but filed on the 13th of June, 2003, sought the leave of the lower Court to join Bureau of Public Enterprise (BPE) as the 2nd Defendant, the lower Court granted the Application in its ruling dated 24th July, 2003. The Respondent however discontinued the suit against the 2nd Defendant when it was adjudged that the 2nd Defendant was not a relevant party to the suit. The lower Court thereafter struck out the suit against the 2nd Defendant on the 12th November, 2003.

On the 9th of June, 2008, the trial Court in its judgment granted all the claims of the Respondent. Being dissatisfied with the judgment of the trial Court, the Appellant appealed to this Court via an Amended Notice of Appeal dated 7th April, 2022 but filed on the 12th April, 2022. The Notice of Appeal contains five grounds of Appeal upon which the Appellant sought to set aside the trial Court’s decision. ​The Appellant filed his Brief of Argument. The Appellant’s Brief of Argument was settled by EMMANUEL O. PIPPA, ESQ.

Counsel to the Appellant formulated two issues for the determination of this appeal in his Appellant’s Brief of Argument to wit: 1. Whether or not the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co, Counsel to the Respondent is competent and capable of invoking the jurisdiction of the lower Court to entertain the Respondent’s case. (distilled from ground 5 of the grounds of appeal) 2.

Whether or not the lower Court was right in entering judgment against the Appellant notwithstanding the admission by the Respondent in their affidavit dated 6th Day May, 2003 of the privatization of the Appellant, and without hearing evidence in each of the consolidated suit. (Distilled from grounds 1, 2, 3 and 4 of the grounds of Appeal) The Respondent also filed his Brief of Argument. The Respondent’s Brief of Argument was settled by PETER O. OLALERE, ESQ. Counsel to the Respondent formulated two issues for the determination of this appeal in his Brief of Argument to wit: 1.

Considering the relevant Writ of Summons originating the suit leading to this appeal was duly signed by a legal practitioner qualified to practice law in Nigeria, whether failure of counsel to sign the amended statement of claim in his name could invalidate the competence of the suit. (Ground 5) 2.

Whether considering the facts of the proceedings and evidence led before the trial Court as contained in the record of appeal before this Honourable Court, the learned trial Judge was right when he entered judgment against the Appellant and in favour of the Respondent in the consolidated suits leading to the appeal. (Grounds 1, 2, 3 and 4) I have given due consideration to the grounds of Appeal, the issues distilled therefrom and the arguments put forward by Counsel in their respective briefs and I have therefore framed the following two issues which succinctly encompasses all the issues raised by the Appellant.

I am of the firm view that the following issues can accommodate all the complaints distilled from the grounds of appeal. The issues are as follows: 1. Whether the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co ought to disrobe the lower Court of jurisdiction to entertain the Respondent’s case. 2.

Whether considering the facts of the proceedings and evidence led before the trial Court as contained in the record of appeal before this Honourable Court, the learned trial Judge was right when he entered judgment against the Appellant and in favour of the Respondent in the consolidated suits leading to the appeal. ISSUE ONE Whether the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co ought to disrobe the lower Court of jurisdiction to entertain the Respondent’s case.

APPELLANT’S SUBMISSIONS Counsel to the Appellant submitted that jurisdiction is a threshold issue which goes to the root of the power of the Court to adjudicate over the parties and subject matter before it, therefore where a Court goes to hear a matter of which he has no jurisdiction to hear, the decision of the Court in such matter is a nullity. Counsel further submitted that because of the fundamentality of jurisdiction, issues concerning it can be raised at any stage of the proceedings or even for the first time on appeal.

Counsel placed reliance on the case of NURTW & Anor v RTEAN & Ors (2012) 1SC (Pt. 11)119; Usman Dan Fodio University v Kraus Thompson Organization Ltd (2001) 15 NWLR (Pt. 736) 305. Counsel to the Appellant submitted that the Statement of Claim filed by the Respondent at the lower Court and signed in the name of SPA Ajibade & Co is fundamentally defective and incapable of conferring jurisdiction on the trial Court, Counsel referred us to Onyekwuluje & Anor v Animashaun & Anor (2019) 1SC (Pt. VI); Emmanuel Okafor & Ors v Augustine Nweke & Ors (2007) 3SC (Pt.

II) 55; Chief Gabriel Igbinedion & Anor v Watson & Sons Ltd (2018) 8 NWLR (Pt. 1621) 381. Counsel further submitted that from the plethora of decisions of the Supreme Court, the suit before the lower Court is fundamentally defective and liable to be struck out for want of jurisdiction. Counsel therefore urged this Court to resolve this issue in favour of the Appellant and strike out the Respondent’s suit.

RESPONDENT’S ARGUMENT Relying on the case of Braithwaite v Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1 at 22, Respondent’s Counsel argued that a Writ of Summons is the originating process in this suit and it is the Writ of Summons that ignites the jurisdiction of the Court.

Counsel further argued that the submission of the Appellant that a Statement of Claim constitutes an originating process runs foul of Order 2 Rule 1 of the Federal High Court Civil Procedure) Rules, 2000 which is in pari materia with Order 3 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2019) and the decision of the Court in the case of Buhari v Adebayo (2014) 10 NWLR (Pt. 1416) 560. Respondent’s Counsel argued that the suit leading to this appeal was duly originated by a Writ of Summons duly signed by a legal practitioner in line with the rules of Court.

Counsel further argued that non-compliance with any of the requirements of the Rules of Court would be treated as an irregularity which would not invalidate the process and can only be challenged timeously.

Counsel conceded that by the decision of the Supreme Court in the case of FBN Plc v Maiwada (2013) 5 NWLR (Pt. 1348) 444, a process that is not properly signed in the manner prescribed by the Legal Practitioners Act is incurably defective and is liable to be struck out but a process or Writ that is properly signed is not liable to be struck out, therefore if the defective Statement of Claim is to be struck out, the case will be alive as the properly signed Writ of Summons cannot be buried.

Respondent’s Counsel relied on the case of Heritage Bank Ltd v Bentworth Finance Ltd (2018) 9 NWLR (Pt. 1625) 420 to argue that there is a distinction between an originating process and a defective Statement of Claim and that a defect in the Statement of Claim is a mere irregularity while an irregularity affecting an originating process is a fundamental irregularity which goes to the root, the Statement of Claim is not such an originating process.

Counsel further argued that the Appellant did not raise an objection on the irregularity of the Statement of Claim before the trial Court, therefore an attempt to raise the issue now is belated as equity aids the vigilant and not the indolent.

Counsel further referred us to the case of Integrated Merchants v Osun State Government (2007) LPELR 8803 to argue that while a defect in the Writ of Summons will affect the entire action and deprive the Court of jurisdiction, defect in the accompanying processes like Statement of Claim, List of Witnesses and List of Documents will not affect the Writ and therefore, any defect in them is incapable of nullifying the whole proceedings, to buttress this argument, Counsel further relied on the case of Okunade v Olawale (2014) 10 NWLR (Pt.1415)207; DHL v Ademola (2018) LPELR-46041(CA) RESOLUTION OF ISSUE ONE This issue is raised against the signature of the Respondent’s Counsel which was made in the name of the law firm “SPA Ajibade & Co” and signed thus on the Amended Statement of Claim (see page 80 of the Record).

The question is whether the signature is in consonance with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. Sections 2(1) and 24 of the said Legal Practitioners Act which reproduction would be pertinent for better comprehension and appreciation provides that: 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, the following expressions have the meaning hereby assigned to them respectively, that is to say: “Legal Practitioner” means a Person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor, either generally or for the purpose of any particular office proceedings.

By the combined effect of the two sections supra, it is apparent therefore that, for any person to qualify as a Legal Practitioner within the meaning of Section 24, he must have attained the status and recognition of having been called to the Nigerian Bar and with his name which must be on the roll of Legal Practitioners at the Supreme Court. There is no evidence before this Court to show that the name “SPA Ajibade & Co” is on the roll of legal practitioners at the Supreme Court.

The Supreme Court in the case of Okafor & Ors v Nweke & Ors (2007) 5 SC 185 at 186-187, made pronouncement on the interpretation of the provisions of Section 2(1) and 24 of the Legal Practitioner’s Act to the effect that no name or person outside the designated and recognized “roll” would either be competent or acceptable to qualify as a legal practitioner and can validly sign Court processes. See NBC & Anor v Mohammed (2012) LPELR-9325. Consequentially, a Court process signed by a law firm or someone whose name is not on the roll would be defective and incompetent.

See SLB Consortium Ltd v NNPC (2011) 9NWLR (Part 1252) 317 at 337-338; FBN Plc v Maiwada (2013) 5 NWLR (Part 1348) 444. However, the Respondent’s Counsel has made adequate distinction between an Originating Process and other accompanying documents. It should be noted that in the instant case, the Writ of Summons was properly signed by the Respondent’s Counsel but the Amended Statement of Claim was signed in the name of law firm ”SPA Ajibade & Co”. Simply put, the Originating Process is the ignition of any action, the foundation upon which pleadings are constructed.

In Okpe v Fan Milk Plc & Anor (2016) LPELR-42562 (SC), the Supreme Court held per Ibrahim Tanko Mohammad JSC: “an originating process is the foundation stone of any proceedings in any Court. It thus affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective process.

If it does, the proceeding however well conducted will amount to a nullity.” A Writ of Summon that is defective goes to the root of the action and also borders on the jurisdiction of the Court, therefore failure to commence proceedings with a valid Writ makes such proceeding liable to be set aside as incompetent and nullity, see Aromire & Anor v Aromire & Ors (2019) LPELR- 47704. It is therefore apposite that because the Writ of Summon in the instant case was properly signed, it cannot be deemed defective notwithstanding the fact that the Amended Statement of Claim was not properly signed.

This position of the law did not expressly extend to a Statement of Claim and other accompanying process. What then is the effect of an improperly signed Statement of Claim in an action such as this where the Writ of Summon is valid? The Supreme Court provided a clear distinction between the writ and statement of claim in the case of Heritage Bank Ltd v Bentworth Fin. (Nig.) Ltd (2018) 9 NWLR (Pt. 1625) 434 per Eko, JSC held thus: “an irregularity affecting an originating process is a fundamental irregularity that goes to the root.

The statement of claim, I must point out, is not such an originating process” ​It is without doubt that a Statement of Claim not properly signed or not signed in the name of a legal practitioner in accordance with Section 2(1) and 24 of the Legal Practitioner’s Act is not a valid statement of claim and therefore no evidence could be considered on a defective Statement of Claim but it will however not warrant an order dismissing the suit since the Writ of Summons is valid and the suit itself is legally in existence.

See Hamzat & Anor v Sanni & Ors (2015) LPELR-24302 (SC); Gama v Abba (2015) LPELR-25638(CA); Moudkas Nig Ent. Ltd & Anor v Obioma & Ors (2016) LPELR-40165. In the case of Osayomi v Government of Ekiti State & Ors (2018) LPELR-43514, this Court per Elechi, JCA expressly confirmed this position when it held that: “Therefore, the Writ of Summons, having been properly signed and competent could not and should not be allowed to be killed by an incompetent statement of claim…” It is my considered view however that the Appellant, as the defendant in the trial Court, condoned the defective process.

They participated in the proceedings, filed a Statement of Defence to join issues with the defective Statement of Claim. The judgment of the trial Court, based on the evidence elicited from the Statement of Claim, was delivered without objection. See Heritage Bank Ltd v Bentworth Fin. (Nig.) Ltd (Supra); Bakari v Ogundipe & Ors (2020) LPELR-49571(SC). In Bakari v Ogundipe & Ors (supra), the Supreme Court per Eko JSC held that: “In the instant case. The point of the statement of claim being defective.

Having been settled by an unknown proxy of Chief A.S Awomolo, SAN, is being raised for the first time in this second tier of appeal.

The Appellant, on this issue, is caught by the doctrine of estoppel by conduct, which in Section 169 0f the Evidence Act, 2011 is provided thus- when one person has either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

I should think it is now inequitable and unjust to the plaintiff/1st Respondent for this Court to accede to this belated objection; the Appellant having waived his right of timeous objection to the irregular Statement of Claim. Delay defeats equity…” From this well-considered holding of the Supreme Court above, it is my view that the Appellant having condoned the defective Statement of Claim all through the proceedings at the trial Court and did not raise objection to it cannot now belatedly raise the objection on appeal. Equity helps the vigilant and not the indolent.

From the foregoing, I hold that this issue of whether the Respondent’s Statement of Claim signed in the name of SPA Ajibade & Co ought to disrobe the lower Court of jurisdiction to entertain the Respondent’s case goes to no issue. This issue is therefore resolved in favor of the Respondent.

ISSUE TWO Whether considering the facts of the proceedings and evidence led before the trial Court as contained in the record of appeal before this Honourable Court, the learned trial Judge was right when he entered judgment against the Appellant and in favour of the Respondent in the consolidated suits leading to the appeal?

Counsel to the Appellant submitted that the lower Court entered judgment wrongly against the Appellant for claims applicable only to public officers under the Pension Act of 2004 despite the lower Court’s awareness of the Respondent’s affidavit in support of Motion for Joinder dated 6th May, 2003.

According to the Counsel to the Appellant, the basis for joining the Bureau of Public Enterprise in the suit before the lower Court was because the Respondent was aware that the Appellant was in the process of being privatized and his claim would be overtaken by event if the process is concluded before the lower Court give judgment. Counsel further submitted that the application for Joinder filed by the Respondent was an admission that NICON Insurance Plc.

Which was eventually acquired by the Appellant was not going to be liable for the claims for the Respondent which was brought under the Pension Act 2004. He also submitted that the Respondent did not take any step to join NICON Insurance Plc in the suit and as such, the Respondent cannot enforce the lower Court’s judgment against NICON Insurance Plc.

Counsel relied on the case of Ukaegbu v Ugoji (1991) 6 NWLR (Pt. 196) 127. ​Counsel to the Appellant also submitted that the subject matter of the suit before the lower Court ceases to exist after the privatization of the Appellant was concluded and the Appellant ceases to be a public corporation, Counsel further submitted that the lower Court was in error and in breach of NICON Insurance Plc right to fair hearing to have given judgment against NICON Insurance Plc who was not a party to the proceedings.

Counsel to the Appellant submitted that the lower Court wrongly considered the evidence of a single witness and held same as evidence in the consolidated suits. Counsel further submitted that the failure of the Respondent to call evidence in the case before the lower Court is fatal to the case of the Respondent which is liable to be struck out for want of evidence, Counsel therefore urged this Court to strike out the Respondent’s case for want of evidence.

RESPONDENT’S ARGUMENT In arguing this second issue, Respondent’s Counsel submitted that the issue does not arise from any of the grounds of appeal. Counsel argued that the second issue attacks the ruling of the lower of the Court made on 16th June, 2003 in respect of an application for Joinder filed by the Respondent seeking to join the Bureau of Public Enterprise as a party, the application was supported with an affidavit wherein the Respondent admitted that the Appellant was in the process of being privatized.

Counsel further argued that there is no ground of appeal attacking either the Order for Joinder made on the 16th June, 2003 or the Order made on the 14th December, 2003 to strike out Bureau of Public Enterprise from the suit or complaint about lack of hearing of evidence in each of the consolidated suits before entering Judgment.

Counsel relied on the case of Dagaci of Dere v Dagaci of Ehwa (2006) 7 NWLR (Pt. 979) 382 at 444; Nwokocha v Ike & Ors (2015) LPELR- 25662 (CA) and Unity Bank Plc v Akpeji (2018) LPELR-44995 to argue that issues for determination in an appeal must arise from ground of appeal.

Counsel argued that the Appellant did not base his argument on the complaint that the Appellant was not a statutory corporation or a public service organization to which the provisions of the Pension Act apply but veered off to argue on an alleged admission of the respondent in an affidavit and failure of the lower Court to call for evidence in each of the consolidated suit.

Counsel further argued that the issue is not based on any ground of appeal and is liable to be struck out together with grounds 1 to 4 from which no issue for determination has been raised. ​Respondent’s Counsel also argued that at the lower Court, oral evidence was led by 4 of the 14 Plaintiffs as the remaining 10 plaintiffs appropriated relevant parts of the evidence given by the first 4 plaintiffs in their depositions to their respective affidavits, therefore all the Plaintiffs gave affidavit evidence in the 14 consolidated suits.

Respondent’s Counsel further argued that the Appellant was formerly known as NICON, a statutory corporation which was not liquidated but was acquired and transformed into its present name and status, he argued that consequently, the assets and liabilities of the Appellant was transferred to its present status as well and the Appellant is obligated to pay the pension of the Respondent for life. Counsel relied on Sections 1(1), 24 and Schedule 2 of the Pensions Act, 1990 and NSPMC v Adekoya (2003) 16 NWLR (Pt. 845) 128; Augustine F.I Ibam v.

Shell Petroleum Company of Nigeria (1998) 3 NWLR (Pt. 543) 493 at 499. Respondent’s Counsel also argued that the judgment of the lower Court was not delivered against a non-existing party or unknown party as submitted by the Appellant but that fair hearing was given and the Appellant had ample opportunity to file counter affidavit and also to cross-examine any of the witnesses or deponents.

In conclusion, the Respondent’s Counsel submitted that the judgment of the lower Court has been implemented and enforced partially and this has led to the reinstatement of the Respondent and other NICON pensioners alive on the Pension Payroll of the Federal Government via the Pension Transitional Arrangement Directorate and thus, the instant appeal is academic and liable to be dismissed.

RESOLUTION OF ISSUE TWO It is my view that the argument of the Respondent that this issue attacks the ruling of the lower of the Court made on 16th June, 2003 in respect of an application for Joinder filed by the Respondent seeking to join the Bureau of Public Enterprise as a party and that it does not arise from any ground of appeal is utterly misconceived. It is trite that issues must be formulated from grounds of appeal which in turn must also derive from the ratio decidendi of the judgment appealed against.

See Awuse v Odili (2004) 8 NWLR (Pt. 874-876) 494; Eyigebe v Iyaji (2013) LPELR-20522 (SC).

I have considered the grounds 1, 2, 3, and 4 contained in the Notice of Appeal and it is crystal clear that this issue under consideration is well distilled from those grounds, particularly ground 2 and I do not see how it “attacked” the said interlocutory decision of the lower Court made on the 16 June, 2003 in any form whatsoever. ​Going forward, the fulcrum of this appeal is the question of whether the Respondent is entitled to be paid by the Appellant the benefits from the increment to which Exhibits 1, 1A-1E relate.

A careful consideration of Exhibits 1, 1A-1E reveals that these circulars apply to officers in the public service of the Federation. Also, the review of pension rates as shown in Exhibit 1C applies to officers in the public service of the Federation. Furthermore, by Section 24 of the Pensions Act, 2004, the National Insurance Corporation of Nigeria was one of the enterprises declared a public service. However, the National Insurance Corporation of Nigeria, a public corporation, having been privatized became defunct and changed into a different entity being NICON Insurance Ltd.

It is my view that the Appellant formerly known as National Insurance Corporation of Nigeria did not undergo dissolution or liquidation but was privatized and transformed to its current status. Privatization is the transfer of control of a public enterprise from the State to the private sector. In effect, the assets and liabilities including the pension liabilities of National Insurance Corporation of Nigeria is transferred to the Appellant accordingly.

It has long been firmly established that where relevant and credible evidence is unchallenged and uncontroverted, the Court has no alternative than to accept it and act on it.

See Omoregbe v Lawani (1980) LPELR- 2655(SC); Durosaro v Ayorinde (2005) LPELR-967 (SC). ​In view of the fact that the computations made by the Respondent of their arrears of pension based on the directives contained in Exhibits 1,1A to E was not challenged by the Appellant and also the evidence of the Respondent relating to the computation of monthly pension, the amount of pension arrears due to him and other former employees in the consolidated suits at the lower Court has neither been challenged nor controverted, I hold that the Appellant is liable to pay the judgment debt due to the Respondent.

On the whole, I hold that this appeal is unmeritorious and it is hereby dismissed. Accordingly, the judgment of the trial Court Per D.D Abutu, J. of the Federal High Court, Lagos, delivered on the 9th day of June 2008 in Suit No: FHC/L/CS/06/2003 is hereby affirmed.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance, draft of the judgment just by my learned Brother ABUBAKAR SADIQ UMAR, JCA. I also dismiss the appeal for being unmeritorious. I abide by the consequential order.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The leading judgment prepared by my learned brother, ABUBAKAR SADIQ JMAR, JCA, in this appeal was made available to me in draft before now. I am in agreement with his reasoning and conclusion that the appeal lacks merit and is deserving of dismissal. The Appellant having failed to challenge the computation of the Respondent’s arrears of pension by credible evidence, is liable to pay the Respondent the sum adjudged against it by the lower Court. I hold that the lower Court was right in finding the Appellant liable to the Respondent.

Consequently, I adopt the reasoning in the leading judgment as mine in also dismissing the appeal and affirming the judgment of the lower Court.

Judgment

AMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the judgment delivered on 27th June, 2018 in the High Court of Akwa Ibom State holden at Mkpat Enin.

In the High Court (the Court below), the Appellant was the Plaintiff. The Respondent was the defendant.

The Appellant claimed against the Respondent for a declaration that the Respondent was indebted to the Appellant in the sum of N860,000.00 (Eight Hundred and Sixty Thousand Naira), interest and costs of the action.

The Appellant stated that sometime in early 2014, on two occasions at his residence he lent N500,000.00 and N360,000.00 respectively to the Respondent which the Respondent has not repaid despite repeated demands. As security for the loan, the Respondent issued two post dated cheques to him dated 10/08/14 and 10/10/14.

​The Respondent denied borrowing any amount of money from the Appellant. He stated that he issued the post-dated cheques to the Appellant when he engaged the services of the latter for drilling of boreholes. That he forgot to collect the cheques from the Appellant after he had paid N1,800,000.00 into Appellant’s account and the Appellant never bothered to return the cheques.

The Court below dismissed the claim of the Appellant. The Appellant immediately approached this Court by an initial notice of appeal containing only the omnibus ground of appeal. On the 2nd March, 2021 when the appeal was heard, the Appellant was granted leave to file additional grounds of appeal. The amended notice of appeal already filed on 7th March, 2019 was deemed duly filed and served. The amended notice of appeal contains four grounds of appeal.

From the four grounds of appeal, the Appellant submitted the following four issues for determination: (a) Whether the judgment of the Lower Court was against the weight of evidence (Ground 1). (b) Whether the issuance of Exhibits A and A1 by the Defendant (Respondent) to the Plaintiff (Appellant) amounted to the Defendant’s(Respondent) acknowledgement of indebtedness to the Plaintiff (Appellant) in the sum of N560,000.00 (Ground 2). (c) Whether the principle of law in Ila Ent. Ltd v. Umar Ali & Co.

Ltd (2013) 15 NWLR (pt. 1376)191 at 203 that the issuance of a cheque by a party to liquidate its indebtedness to another is an admission of the latter’s claim is applicable in the instant case? (Ground 3). (d) Whether the Appellant denied or controverted the facts contained in paragraphs 5(a)-h of the amended statement of defence and the evidence of the Respondent in paragraphs 7(a)-(h) of the Defendant’s written statement on Oath (Ground 4).

The Respondent presented a single issue for determination. It is reproduced immediately hereunder: “Whether the Appellant proved his case by credible evidence to be entitled to the relief sought.”

Appellant’s counsel argued issue 4 first. On this issue, learned counsel for the Appellant submitted that in construing pleadings, the totality of the averments have to be read together. He referred the Court toAgi v. P.D.P. (2017)17 NWLR (pt. 1595)386 and paragraphs 5(a) – (h) of the amended statement of defence as well as paragraphs 1(a) (b) (n) and (o) of the Appellant’s reply to the amended statement of defence.

To constitute a traverse, it was submitted it is not necessary that every paragraph of statement of claim should be specifically denied but that what is essential is that the case put up by the defendant conflicts in material particulars with that put forward by the plaintiff. The Court was referred to Ajao v. Alao (1986)5 NWLR (pt. 45) 802.

A cursory look at paragraphs 5a-h of the amended statement of defence vis-à-vis paragraphs 1(a) (b) (n) and (o) of the reply to the statement of defence and the accompanying processes, it was contended, shows that the Appellant did deny the facts stated in paragraphs 5(a) – (h) of the amended statement of defence and the evidence of the Respondent in paragraphs 7(a) – (h) of the written statement on oath. It was immaterial, it was further argued, that the Appellant did not specifically mention paragraphs 5(a) – (h).

Issues 2 and 3 were argued together. On these issues the Court was referred to the case of Ila Ent. Ltd v. Uma Ali & Co. (Nig) Ltd (2013)15 NWLR (pt. 1376)191. Learned counsel for the Appellant submitted that the principle of law applicable in the case of Ila Ent. Ltd is applicable to this case, therefore the Court below was wrong to hold that it was inapplicable.

​On issue 1, it was contended that the claim that Exhibits A and A1 were issued to the Appellant to enable him source for money was untenable, absurd and unreasonable. It was further contended that the fact that they were still with the Appellant at the time the Appellant instituted the action shows that the Respondent did not liquidate his indebtedness.

It was submitted that the judgment is against the weight of evidence at the trial.

Learned counsel for the Respondent submitted that as far as the evidence adduced by the parties in this case is concerned, the trial Court rightly arrived at the conclusion that the Appellant did not prove his case by credible evidence to warrant the grant of the reliefs sought. It was submitted that it was the duty of the Appellant at the trial Court to prove that there was an existing loan contract agreement between him and the Respondent different from the financial transaction they had in respect of the drilling of boreholes. This, it was contended, the Appellant did not do.

​It was contended that the fact that Respondent’s cheques exhibits A and A1 were in the possession of the Appellant is not enough to draw the conclusion that the Respondent was indebted to Appellant considering the fact that the Appellant did not deny receiving monies from the Respondent while the cheques were still in his possession.

The Appellant, it was further argued, had a duty in the circumstances to plead and lead evidence on the circumstances that led to the receipt of the monies from the Respondent to enable him rebut the presumption that the payments subsequently made after the issuance of the cheques were not in respect of the values of the cheques.

Learned counsel for the Respondent contended that it was curious that Appellant presented the cheques issued in August and October, 2014 in January, 2015 and when the cheques were returned unpaid, he did not draw the attention of the Respondent to this fact until 22nd July, 2016 when he wrote to the Respondent. It was contended that the reaction of the Appellant to the return of the cheques does not follow the natural course of events of return of cheques when the drawers attention is required.

Under the natural cause of events, the Appellant would have reached out to the Respondent immediately. It is not enough, it was argued, for Appellant to say that he made several demands for the money without stating how and or making reference to the returned cheques.

It was contended that the Respondent on 15th June, 2016 sent exhibit C to the Appellant demanding for the return of exhibits A and A1 after settling the values of the two exhibits in the financial transaction contained in exhibit 7. The contents of exhibit C, it was submitted, are very clear and leave no one in doubt as to why exhibits A and A1 were issued to the Appellant.

There is nothing on the face of exhibits A and A1, it was submitted, to show that they relate to, or have anything to do with any loan transaction.

It was submitted that two loan agreements exhibit G and H were not binding on the Respondent because he was not a party to them.

​It was submitted that the main relief sought by the Appellant is declaratory. Therefore, he had a duty to plead relevant facts and lead evidence to prove his case before he can be granted the declaratory relief. A declaratory relief is not granted on lack of defence or default in pleadings, it was submitted. A party seeking declaratory reliefs, it was submitted, has the burden of establishing his entitlement to such reliefs. He must succeed on the strength of his own case and not on the weakness of the defence, if any. The Court was referred toBulet Int’l (Nig) Ltd v.

Olaniyi (2018) All FWLR (pt. 948) 500 at 530.

It was submitted that loan transactions are contractual relationships and any party relying on a contract is bound to plead and prove the terms of the contract. In the instant case, it was argued, the Appellant did not plead the terms of the loan, neither did he tender any document of such contract. Exhibits A and A1 are not sufficient evidence of such a loan agreement, it was submitted. That the Appellant merely stated that he lent money to the Respondent without more. He did not state the purpose for which the loan was meant.

The question is, is the Appellant an automatic teller machine that the Respondent just walked into his house and demanded for money and the Appellant paid? It was contended that for anybody to say that he gave out a loan, the natural course of any event is that the loan was meant for a particular thing and not just collection of money.

​It was submitted that on the state of the scanty evidence of the existence of any loan agreement the Appellant cannot succeed on the evidence he placed before the Court. The Court was referred to Akande v. Adisa (2012) 15 NWLR (pt. 1324) 538 at 575.

It was contended that the Appellant did not present the cheques until January, 2015 because the value of the cheques had been paid to the Appellant. In that case, the Court below rightly held that the Appellant did not prove his case by credible evidence.

It was further contended that the Appellant had not led evidence to show how a cheque of a business name or company conveyed liability on the Respondent. It was contended that the Appellant pleaded that the cheques of the Respondent’s company were issued but has not made any claims against the said company. The effect of this pleading, it was contended, is that the loan contract was between the company and the Appellant. It was submitted that the Respondent cannot bear the liability of any company personally.

It was submitted that from the pleadings of the Appellant and the nature of exhibits A and A1 the case of Ila Ltd v. Umar Ali & Co. (Nig) Ltd (supra) relied upon by the Appellant is inapplicable to this case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> On the claim for interest, it was submitted that it must flow from the terms of the contract. It was contended that PW1 nowhere stated that it was part of the contract agreement to pay interest or costs.

It was submitted that interest will however be payable where there is express agreement to that effect and such agreement may be inferred from a course of dealing between the parties. The Court was referred toDHL International Nigeria Limited v. Oyeyemi (2017) All FWLR (pt. 671) 1298, Sterling Bank Plc. v. Falola (2015) ALL FWLR (pt. 774)1 and Ekwunife v. Wayne West African Limited (1989) 5 NWLR (pt. 122)422.

The Akwa Ibom State High Court (Civil Procedure) Rules, it was submitted, have made provision for post judgment interest, and it is to be not more than 10% per annum.

It was also submitted that a party cannot claim professional fees paid to his counsel from the other party. The Court was referred to Guinness (Nig) Plc. v. Nwoke (2000) 15 NWLR (pt. 689) 135.

In his reply brief, the Appellant submitted that the issue of Exhibits A and A1 being in the name of a company was not raised and argued in the Court below.

Therefore, the Respondent cannot raise the issue without first obtaining leave of the Court. The Court was referred toThe Sun Publishing Ltd. v. Aladinma Medicare Ltd (2016)9 NWLR (pt. 1518) 577 at 592.

In any case, it was the submission of Appellant’s counsel that from the pleadings, the Respondent borrowed the money in his personal capacity. He did not borrow it as a representative of his company. That the Respondent only issued exhibits A and A1 as security for the loans. That there is no law which prohibited the Respondent, being the Managing Director of his company, from issuing exhibits A and A1 to the Appellant as security for the loans. Therefore, the Appellant was right to have sued the Respondent personally.

I have discountenanced the other submissions of the Appellant’s counsel in the reply brief as they are re-arguments of the appeal.

The only issue for determination is; whether the Appellant proved that he lent N860,000.00 in two installments of N500,000.00 and N360,000.00 to the Respondent to be entitled to the declaration sought.

​It is the law that declaratory reliefs are only granted when credible evidence has been led by the person seeking the declaratory relief. The person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. A declaratory relief will not be granted even on admission by the defendant. See Anyaru v. Mandilas Ltd (2007)4 SCNJ 288 and Matanmi & Ors v. Dada & Anor (2013) LPELR 19929.

From the pleadings and evidence led by the Appellant, there are several unanswered questions to enable any Court lend credence to the claim of the Appellant. He pleaded and testified to the fact he lent the money to the Respondent on two different occasions. When was the first occasion? He did not tell the Court. He said that he first lent N500,000 to the Respondent. The question is what did the Respondent tell him he wanted the N500,000 for? The Appellant did not tell the Court. If the N500,000 was to be repaid, when was it supposed to be repaid? The Appellant did not tell the Court.

When the Respondent came for the N360,000 what did he say he wanted the N360,000 for and when was that? It is not enough to say as the Appellant pleaded and stated that the two occasions were sometimes in early 2014. Appellant ought to have been specific as to when in early 2014 the Respondent went to borrow the N500,000 and when in early 2014 he returned for the N360,000. Again, why did the Respondent ask for N360,000 again when he had not yet repaid N500,000 lent to him? When was the N360,000 to be repaid?

The Appellant led no iota of evidence to show that he lent N860,000 in two installments to the Respondent. He merely dangled Exhibits A and A1 as the evidence that the Respondent borrowed money from him. The Respondent pleaded and led evidence to show that exhibits A and A1 were issued in respect of the contract between the parties for the digging of boreholes. The Appellant did not controvert the pleadings and evidence of the Respondent on the issue. This is because he did not himself plead and testify as to how he financed the project contracted to him by the Respondent.

​Learned counsel for the Appellant has a misconception of what constitutes a traverse in pleadings. It does not mean merely throwing a spanner in the wheel of an opposite party’s case. Merely saying that Exhibits A and A1 were issued before the contract to dig the boreholes was entered into is not enough traverse. The Appellant ought to have shown how he financed the subcontract differently from how the Respondent pleaded and led evidence to show the role the issuance of Exhibits A and A1 played in the transaction. He did not.

The Court below rightly found in its judgment at page 191 to 192 thus: “Having not specifically denied the said averred facts in paragraphs 5, a-h of the Amended Statement of Defence, they are deemed as admitted and would need no further evidence to prove them as unchallenged and uncontroverted facts need no further proof.

Based on the above, this Court holds the view that the evidence of the defendant that he issued the Zenith Bank postdated cheques in Exhibit A and A1 in the sum of N500,000.00 and N360,000.00 to the plaintiff in the course of the execution of the contract for which he awarded, to him is more credible than the evidence of the plaintiff that the two (2) postdated cheques were issued to him by the defendant as security for the loan which he gave to him.

Moreover, it is evident that the sum of N1,800,000.00 was paid to the plaintiff on the 11th August, 2014 by the defendant as the sum of N500,000.00 in Exhibit A was due and payable on the 10th August, 2014 and he also admitted that the defendant also paid N200,000 to him on the 24th December, 2014 as part payment of the sum of N360,000.00 he had authorized him to source for and issued Exhibit A1 to enable him do so. That explains why the plaintiff did not present Exhibit A and A1 to the bank for payment until 12th January, 2015.

The plaintiff ought to have returned the two postdated cheques to the defendant as he had made payments to him to redeem the values on them without a demand for their return. The plaintiff failed to show how he disbursed the said loan to the defendant in two installments or where it was receipted for by the defendant as required by law since the defendant had denied borrowing the said sums from him.” I agree with the above findings of the Court below.

In the circumstances, the only issue for determination is hereby resolved against the Appellant and in favour of the Respondent.

​The appeal is therefore dismissed for lacking in merit. Respondent is awarded N100,000.00 costs to be paid by the Appellant.

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MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother J. S. ABIRIYI, JCA. He has carefully examined and concluded on the sole issue submitted for determination of the appeal.

I agree with the reasoning and conclusion reached in the judgment. I also dismiss the appeal as lacking in merit. I abide with the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, James S. Abiriyi, JCA, and I agree with the reasoning and conclusion reached in the judgment.

​I too dismiss the appeal for lack of merit and I abide with the order as to costs.

Judgment

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgement): This application was brought pursuant to Orders 7 Rule 1, 17, Rules 1 and 2, 18 Rule 11, 20 Rules 2 and 3 of the Court of Appeal Rules 2011, Sections 6 (6) (a), 35 (1) 46 (1) and 232 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and the inherent jurisdiction of this Court.

The application prays for the following orders: 1. AN ORDER of Hon. Court of Appeal granting the order contained in the Applicant/ Appellant’s Application dated 2nd July, 2020 as a prelude for contempt of Court procedure as prescribed by statute against the 4th Respondent, that the Trial Judge who is clothed with Jurisdictional power to grant, but willfully refused and neglected to hear and grant, before further step could be taken in the hearing of the instant Appeal today. Marked T .1 2. AN ORDER of the Hon.

Court of Appeal restraining the 5th, 7th and 8th Respondents, the Executive Arm of Lagos State Government; the state of origin of the 4th Respondent herein or any of her agencies, including but not limited to the 5th Respondent; ‘the Hon. Attorney General and Commissioner for Justice Lagos State; the 7th & 8th Respondents; the DPP Lagos State from instituting and or maintaining any criminal proceeding or charges relating to any of the charges contained either in its original or amended form in CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V.

ALHAJI ABDUL RAUF AND ALHAJI FARRY YUSUF Or any other offences that having the same ingredients as the offences contained either in its original or amended form of the instant charges. 3. AN ORDER of the Hon. Court of Appeal compelling the state of Lagos High Court presided over by Hon. Justice Hakeem Oshodi. J that is sitting as Appellate Court on the final judgment/ orders of the Federal High Court to grants as follows; a) Immediate grant of stay of proceeding on: CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF TIJJANI AND AKANNI SAUDA. And CHARGE/ SUIT NO: ID/2626C/2016.

STATE OF LAGOS V.

ALHAJI ABDUL RAUF TIJJANI AND ALHAJI FARRY YUSUF. b) Grant the stay of enforcing the unlawful warrant of arrest of the Applicant/ Appellant herein and his privies issued by the State High Court of the 5th, 7th and 8th Respondents that operating as Appellate Court to sit on the final decision of the Federal High Court without Authority of law. c) And AN ORDER setting aside all the proceeding/ decisions taken so far in two mentioned suit numbers Supra including releasing of the International Passport of the Applicant/ Appellant herein and his privies from all the encumbrances imposed on them in the said purported Appellate of Lagos State High Court Anarchistically created by the 5th, 7th and 8th Respondents without Authority of law. 4.

And for Status Quo to be secured; AN ORDER of the Hon. Court of Appeal discharge and Acquittal the Applicant/ Appellant herein and his privies; the Defendants/ Applicants thereof on the grand of legislative law and constitution as a means by which the law vindicates the Public interest in the Administration of Justice. 5. AND for such further order or other order as this Honorable Court of Appeal may deem fit to grant in the circumstance.

The grounds for the application are: 1. The Court is a creation of the constitution. It will not give its aid, under any guise, to a violation of any provision of the Constitution, which give it life. And as argued by learned Counsel for the respondents in the oral application Judges must, at all times and under all circumstances, strive to honour their oath office to defend and protect to constitution. 2.

The object of interlocutory injunction is to protect the applicant against injury by violation of his right for which he would not be adequately compensated on damages recoverable in the action, if the uncertainty were resolved in his favour at the trail. 3.

It is the duty of the judiciary to keep in check the excesses of the executives and overbearing and abrasive tendencies of the Legislature so that each of the 3 components of the government confines itself within the province allocated or prescribed for it by the constitution … I am of view that, it should be understood that a constitution is not a mere common legal document.

It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparatus of the government as well as regulating the relationship between the Citizen and the State. It equally makes provision for rights of the citizen within the compass of the state. 4. An interlocutory injunction which is granted in the litigation process is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the Court.

It is an equitable jurisdiction which the Court is called upon to exercise in the light of the facts presented before it by the applicant. 5. The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases, based on hard law and facts. Some of the principles or factors to be considered in an application for interlocutory injunction are: 1. There must be a subsisting action. 2. The subsisting action must clearly denote a legal right which the applicant must protect. 3.

The applicant must show that there is a serious question or substantial issue to be tired. 4. And because of (3) above, the status quo should be maintained pending the determination of the substantive action.

​The application is supported by a nine-paragraph affidavit deposed to by Alhaji Abdul-Rauf Tijjani MNI OFR, with the written address in support of motion as well as exhibit A1, AB, exhibit A3A, A3B, A4, A5, A6, A7, T1 and T5 attached. The affidavit of urgency was withdrawn and struck out on the 4th of March, 2021; the 6th was served with both the hearing notice but was not in Court.

The Applicant urged the Court to grant the application in the interest of justice.

U.O. Sule Esq., SAN for the 1st Respondent did not file a counter affidavit but opposed the application on points of law; urging the Court to dismiss the application because, it does not relate to this appeal in his opinion.

Innocent Daagba Esq., of counsel for the 2nd Respondent while adopting the submissions of U.O. Sule SAN also urged the Court to dismiss the application because the application relates to a case before the Lagos State High Court and not this Court.

Rex Irame Esq., of counsel for the 3rd Respondent adopted the submissions of U.O. Sule SAN and also urged the Court to dismiss the application without much ado.

Boniface Bassey Esq., for the 4th Respondent adopted the submissions of the 1st and 2nd Respondent’s counsel as well.

​Ojonimi S. Appeh Esq., for the 5th, 7th and 8th Respondents filed a eight paragraph counter affidavit deposed by Ayobami K. Oke Esq., in opposition to the application.

I have carefully gone through the application alongside the affidavits, exhibits attached, the counter affidavit and the various submissions of counsel; especially that of the applicant who contends that he pleaded illegalities contained in reliefs 4 to 7 and established them through affidavit evidence that need no further proof; especially what he referred to as “the crime of unlawful removal of the case file that contained the final judgment of the Federal High Court and rights of the applicant… and the crime of contempt and anarchistic act of the 5th, 7th and 8th Respondents that converted their State High Court of Lagos to an appellate Court for final judgment/orders of the Federal High Court in excesses of sovereign power vested by the constitution and the law to the Executive Arms of the State of the Federation of which, the 5th, 7th and 8th Respondents… “

The Applicant formulated a sole issue for determination as follows: Whether the Courts established by the Constitution of the nation are constitutionally licensed to protect validly exercised rights of a party that placed before it along with established illegalities of other parties in the context of law?

The Applicant contends while referring to AKILU V FAWEHINMI 2 (1989) 2 NWLR part 102 at page 149, that Courts have jurisdictional power to protect rights of parties “…that falls within the sphere of his or their legal liberty.”

While referring to LAWAL-OSULA & ORS V CHIEF SAKA LAWAL OSULA & ORS (1995) LPELR-1763-SC, the applicant contends that exhibits Al and AB attached to his supporting affidavit established that the 4th, 5th, 7th and 9th Respondents have no locus standi to seek discretionary remedy from the lower Court; and that the only “jurisdictional power the trial Court has in the circumstances is to protect all the legal instruments issued in favour of the Applicant herein as against the 5th, 7th and 8th Respondents…”

That all the processes filed and argued at the lower Court, as well as the decision of the Court are exercises in futility, as they “…ab initio ousted the jurisdiction of the Court of Appeal to entertain any of their positions in the instant application or in the main appeal…” The Applicant urged this Court to grant all the reliefs sought in this application; he referred the Court to SALEH V ALHAJI SHETTIMA MONGUNO & ORS (2006) LPELR-2992-SC MUHAMMADU BUHARI & ORS V CHIEF OLUSEGUN AREMU OBASANJO & ORS (2003) LPELR-813-SC.

The Applicant also urged this Court “…not to fall into the same booby trap set down vides the sophistry of technical minded counsel of the adversary of the Appellant/Applicant herein who is not a legal practitioner but bent to exercise his civic constitutional duty that must be respected and encourage to further brighten the sphere of civilization of the citizens and stabilization of the rules of law…”

He urged this Court to resolve the sole issue in favour of the Applicant, against the Respondents.

​It is important to point out that the Applicant appeared for himself. He is not a legal practitioner. He articulated his case very well in spite of the uphill task he had to contend with; and that partly explains why he urged this Court, in apparent apprehension, not to be bogged down by technicality “…by falling into the same booby-trap set down by the sophistry of technical minded counsel…”

While the Court is always willing to assist any party who is not a legal practitioner to conduct their case without let or hindrance, in the interest of justice, the Court is always mindful of its duty as an impartial arbiter, not to jump into the arena in sympathy or empathy; OKON V OKON (2009) LPELR-8699- CA; See also SUBERU V. STATE (2010) 8 NWLR PT. 1197 PG. 586; AJUWON VS. AKANNI (1993) 9 NWLR PT. 316 PG. 182; SALUBI V. NWARIAKU (1997) 5 NWLR PT. 505 PG.442 AND OLORUNFEMI VS. ASHO & ORS (1999) 1 NWLR PT. 585 PG. 1.

Having gone through the reliefs sought, it is clear to this Court that the central issue is indeed the judgment of the Federal High Court Lagos at pages 532 to 561 of the record of appeal; and most importantly, on proper scrutiny, the reliefs sought show that the application filed on the 10th of March 2021 seeks reliefs this Court cannot grant. This Court cannot, because it is in no position to, in the circumstances “…arrest the anarchy brought into the judicial system” as claimed by the applicant.

​The reliefs sought have all been listed elaborately, and this Court does not have the jurisdiction to grant any one of them, not least because they are uncertain and imprecise, and most importantly because they refer to processes filed before the trial Court and not before this Court.

It is for these reasons that this Court cannot in all fairness hear and determine this application as presently constituted, because it lacks the jurisdiction to do so.

Even though the Applicant appears to be highly educated and very intelligent, and buoyed by his constitutional right to represent himself, some cases are better handled by counsel due largely to technicalities of the law, and parties will be better served if they engaged the services of counsel, at least for advice to avoid certain pitfalls that non lawyers inevitably face when handling cases of this nature on their own.

I am fortified in this belief by several decisions of this Court and the apex Court, chief amongst which is TIJANI & ANR V FBN PLC (2013) LPELR- 20656-CA where this Court held among other things that: “… it’s a well settled principle, that the participation of a lawyer in any criminal proceedings, as well as in complex civil proceedings (such as the instant case), on behalf of an accused person (or litigant, as the case may be), is very essential to a fair trial.

The participation of a lawyer in a case is intrinsically connected to the accused person’s or litigant’s right to adequately defend himself, or present his case. As once aptly articulated by Lord Denning, MR- It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in- intelligence. He cannot examine or cross-examine witnesses. We see it every day.

A Magistrate says to a man: You can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? See PETT VS. GREYHOUND RACING ASSOCIATION (NO. 1) (1968) 2 ALL ER 545 @ 549. ​From the above eloquent dictum of Lord Denning, MR, it’s rather obvious, that what actually makes the participation of a lawyer (counsel) in a Court case so vital is his adequate knowledge of the law.

His ability to apply that knowledge to given fact situations; to sift relevant, admissible and often complex evidence from what is irrelevant and inadmissible. And most importantly, his skills in argumentation and power of persuasion.

I think, it was Lord Simon who once cited with approval Dr Johnson’s observation in 5 BOSWELL’S LIFE OF JOHN- (Birkbeck Hill edition) 26, thus: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself if he could. See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL ER. 1169 @ 1176.

See also ARTICLE 14 (3) (d) of the International Covenant on Civil and Political Rights; Article 7 (i) (c) of the African Charter on Human and Peoples Rights; Article 8 (2) (d) of the American Convention on Human Rights; Article 6 (3) (c) of the European Convention for the Protection of Human Rights And Fundamental freedoms. At this point in time, the following rhetorical question is rather pertinent, what then are the likely consequences of a party’s election to conduct his case in person? I think, the answer to that pertinent rhetorical question is not far-fetched.

See AMICI CURIAE; PROSECUTOR VS. MILOSEVIC: CASE NO. IT-02-54- AR73.6, dated January 20, 2004, wherein consequent upon the complaint of the accused person that the Trial Chamber had not accorded him adequate time to prepare his defence (and for instance, he had to peruse at least 350,000 pages of complex material evidence of the prosecution), the Appeals chamber held, inter alia, thus: There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided.

A Defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal systems respect for a Defendant’s decision to forgo assistance by counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.” Per SAULAWA, J.C.A, as he then was (Pp. 14-17, paras. F-B). The decision or choice to forgo the services of counsel is left to the litigant out of respect for his rights;

“The best person to decide who represents him as counsel is the appellant, and that is his Constitutional right…” Per BELGORE, J.S.C (P. 3, paras. E-G). 0000000000 That compels me in this respect to endorse the observation of Denning L.J. (as he then was) inR. V. STAFF SUB-COMMITTEE OF LCC’S EDUCATION COMMITTEE & ANOR EX PARTE SCHONFIELD & ORS (1956) 1ALL ER 753 to the effect that: “Much as we value the help of the Bar, we must never go so far as to refuse an applicant simply because he is in person.” Per OGUNDARE, J.S.C (Pp. 37-38, para.

F) The justice of this case demands that the Applicant seeks assistance. There is no compulsion to do that, but where the applicant, as in this case, chooses to go the whole hog himself, then he sinks or swims on his own.

I am compelled to strike out this application filed on the 10th of March, 2021 for lack of jurisdiction to hear and determine the motion as presently constituted without much ado.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in advance the ruling just rendered by my learned brother, Mohammed Mustapha, JCA.

My learned brother has articulated comprehensive and elaborate reasons for striking out this application.

I agree that, for the reasons advanced by my learned brother, the application ought to be struck out for want of jurisdiction. I also strike it out.

PETER OLABISI IGE, J.C.A.: I agree.

Judgment

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment) : Introduction This interlocutory appeal is an offshoot of two consolidated suits pending before the High Court of Lagos State which granted leave to the Respondents (qua defendants) to amend their joint statements of defence in a considered ruling delivered by Kasali, J. on 31/5/17. The purpose of the amendment was to enable the Respondents subjoin a counterclaim to their statement of defence after the Appellant (qua claimant) had closed his case.

The Appellant could not see his way clear that the lower Court properly exercised its discretion in granting leave to amend in the manner and at the time it did. He consequently lodged the present appeal vide a Notice of Appeal filed out of time on 23/11/17, albeit with the leave of Court granted on 22/11/17. The ruling appealed against lies at pp. 359 – 369 of the records, whilst the Notice of Appeal is copied at pp. 406 – 409 thereof.

Issues for determination The three (3) issues distilled for determination in the Amended Appellant’s Brief of Argument filed on 22/2/18 (which were adopted without modification in the Respondent’s Brief filed on 28/8/18) are: (i) Whether the Defendants/Respondents can amend their Joint Statement of Defence by incorporating a Counter-Claim after the Claimant/Appellant has closed his case? (ii) Whether the Defendants/Respondents can by an amendment to their Joint Statement of Defence incorporate a Counter-Claim which raises issues based on facts that arose after the issue of the Writ of Summons in these Consolidate suits? (iii) Whether the Defendants/Respondents in these consolidated suits have a competent Statement of Defence in these suits?

Appellant’s submission The Appellant referred to Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 (in force at all material times) and recited the principles governing the grant or refusal of amendment as enunciated in a litany of decided cases (notably: OKEOWO v MIGLIORE (1979) 11 SC 139, STATE v GWONTO (1983) SCNLR 142, OJOGBORO v KUKU [1986] 3 NWLR (PT 31) 697 and MAERSK LINES v ADDIDE INVESTMENTS LTD [2002] NWLR (PT 778) 317, AMADI v THOMAS APLIN & CO LTD (1970) 1 ALL NLR 409 and AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439) and contended that the implication of granting leave to amend after the close of the claimant’s case on 18/6/15 is that “pleadings in the consolidated suit would have to be reopened for the claimant to file a defence to the defendant’s counterclaim, and the claimant will have to reopen his case to accommodate his evidence in defence of the counterclaim”.

The Appellant insisted that he would be overreached thereby, placing reliance on UNION BANK NIGERIA PLC v LAWAL [2012] 6 NWLR (PT. 1295) 186, OGIDI v EGBA [1999] 10 NWLR (PT 621) 42 as well as AKANINWO v NSIRIM [2008] 9 NWLR (PT 1093) 439 (on the judicial definition of ‘overreaching’ and mala fide).

He pointed out that the grant or refusal of amendment is not automatic but subject to the discretion of the trial Judge exercised judicially and judicially, as well as taking into consideration the peculiar facts of each case, calling in aid the cases of MONOPRIS NIG LTD v OKENWA [1995] 3 NWLR (PT 383) 375, SAFFIEDINE v COMMISSIONER OF POLICE (1965) 1 ALL NLR 54 at 56, UGBOMA v OLISE (1971) 1 ALL NLR 8, UNIVERSITY OF LAGOS v AIGORO (1985) 1 SC 265 at 272 and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 SC 295 at 345; and argued that the reason put forward by the Respondent for seeking amendment was to bring in facts that arose after the commencement of the suit, and no facts showing any formal slip or inadvertence of counsel was placed before the lower Court which exercised its discretion without being guided by the evidence adduced.

The case of MENAKAYA v MENAKAYA [2001] 16 NWLR (PT 738) 203 at 253 (on the proposition that discretion cannot be exercised in vacuo) was cited. The Appellant maintained that granting leave to amend statement of defence by incorporating a counterclaim after the close of claimant’s case distorts the natural order of trial as provided in S. 210 of the Evidence Act, 2011 and Order 30 Rules 7, 8, 11(1) and 13 of the High Court of Lagos State (Civil Procedure) Rules 2012.

On Issue 2, it was contended that the lower Court erred in granting leave to amend when the Respondents “stated and admitted” that the amendment introduced new facts that occurred since the institution of the suit, citing BIODE PHARMACEUTICAL INDUSTRIES LTD v ADSELL (NIG) LTD [1986] 5 NWLR (PT 46) 1070 at 1076 SAMSON SALAKO & ORS v BABATUNDE WILLIAMS & ANOR (1998) 11 NWLR (PT 574) 505 (CA), ADETUTU v ADEROHUNMU [1984] 15 NSCC 389 at 396, ALHAJI FOLORUNSHO LYANDA KANUBI & ANOR v CHIEF SUNDAY OLAGUNJU & ANOR (2012) LPELR-9823(CA) as well as GOWON v IKE-OKONGWU [2003] 6 NWLR (PT. 815) 38 (2003) 1 SC (PT III) 57 on the proposition that “a defendant will not be allowed to raise by way of an amendment to statement of defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ”;

and that the lower Court held that “evidence in support of the amendment is already on record before the Court” whereas the Respondents have not offered any evidence in the consolidated suits, and this Court ought to disregard a finding of fact which is not supported by the evidence, placing reliance on R v OGODO (1961) ALL NLR 700, and UZUEGBU v PROGRESS BANK OF NIGERIA LTD [1985 – 1989] 4 NBLR 400 at 412.

The Appellant’s contention in respect of Issue 3 is that the lower Court did not consider the competence of the statement of defence dated 19/7/11 which the Respondents sought to amend as well as whether the Respondent (qua defendants) can adduce any evidence in the consolidated suits, insisting that a Court must always give a full and dispassionate consideration to all issues raised or canvassed before it, calling in aid EZEMONYE OKWARA v DOMINIC OKWARA & ANOR (1997) LPELR-6291(CA), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317 and OJOGBUE v NNUBIA (1972) 6 SC 227.

This Court was urged to exercise its wide inherent powers under S. 15, Court of Appeal Act, 2004 and Order 4 Rule 3 Court of Appeal Rules 2016, citing OBI NWANZE OKONJI & 4 ORS v GEORGE NJOKANMA & 2 ORS [1991] 7 NWLR (PT. 202) 131 at 146 –per Olatawura JSC, EBBA v OGODO (1984) 1 SCNLR 372 and EZEMONYE OKWARA v DOMINIC OKWARA & ANOR (1997) LPELR-6291(CA).

The Appellant insisted that the statements of defence in the consolidated suits constitute a nullity for having been filed outside the period of 42 days prescribed in Order 15 Rule 1(2) of the High Court of Lagos State (Civil Procedure) Rules 2012 without obtaining leave to do so out of time, calling in aid IFEZUE v MBADUGHA (1984) 5 SC 79 at 118, OGAR v JAMES (2001) FWLR (PT 67) 930 and ICHU v IBEZUE [1999] 2 NWLR (PT 591) 437 (1998) LPELR-6418(CA); and that they cannot be amended for being fundamentally defective ab initio, incompetent and/or non-existent in law, citing NEW NIGERIA BANK PLC v DENCLAG LTD [2005] 4 NWLR (PT 916) 549 and UNION BANK NIGERIA PLC v LAWAL [2012] 6 NWLR (PT 1295) 186.

The Court was urged to resolve all three issues for determination in favour of the Appellant. Respondents’ submission On behalf of the Respondents, it is contended that the rules of Court permit parties to amend their pleadings twice during trial to reflect the real issues in controversy and achieve substantial justice in the matter, and the lower Court rightly granted leave to amend the statements of defence in the consolidated suits having regard to the affidavit evidence placed before it.

Order 24 Rules 1 and 2 of High Court of Lagos State (Civil Procedure) Rules, 2012 and the cases of BARODA v IYALABANI [2002] 13 NWLR (PT. 785) 551 at 593 – per Ogundare JSC, CELTEL (NIG) LTD v ECONET WIRELESS LTD (2011) 3 NWLR (PT 1233) 156 at 167 –per Agbo JCA, YUSUF v ADEGOKE [2007] 11 NWLR (Pt.1045) 332 as well as KHALIFA v. ONOTU & ANOR (2016) LPELR-41163, OKOLI v AJOSE [1994] 8 NWLR (Pt. 362) 300 at 312, ETA v DAZIE [2013] NWLR (PT. 1359) 248 at 267 – 268 and ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415 at 424 (on the object of amendment of pleadings) are cited.

The Respondent’s maintained that the Appellant was not overreached in any way as the amendment did not introduce facts of a different complexion; that contrary to the Appellant’s assertions, the facts constituting the counterclaim arose out of the same cause of action and are neither independent of the main claim nor alien to the Appellants; that the amendment merely clarified facts surrounding the dealings between the Appellant and the initial management of the Respondent which revealed underhand conduct and impropriety;

and that the lower Court made it clear that the Appellant remains at liberty to file a defence to counterclaim and apply to reopen his case and lead evidence in support thereof since a counterclaim is a separate action tried along with the main claim for purposes of convenience and to avoid multiplicity of action, citing USMAN v GARKE [2003] 14 NWLR (Pt. 840) 261 and NSEFIK (SINCE DEAD) & ORS v MUNA & ORS ​(2013) LPELR21862;

and that the Courts have always been inclined to grant an application for the recall of a witness as the circumstances of the case warrant in the interest of justice, citing ADEKANYE ELEKO v AKINRINIOLA WILLIAM OLOKUNBORO (1978) LPELR-FCA/B/9/78, insisting that the Applicant’s grouse is not that he was denied the opportunity to reopen his case to enable him lead evidence in defence of the counterclaim.

On Issue 2, the Respondents queried, rhetorically, whether a claimant or defendant should sit back and do nothing when facts dependent on a cause of action occur after the institution of a case, and maintained that they are not foreclosed from amending their statements of defence to raise facts contained in their counter-claim which arose out of the same subject matter after the institution of the consolidated suits for the wholesome consideration of all the facts in dispute as well as avoid a multiplicity of suits, placing reliance on OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT 220) 647, JERIC (NIG) LTD v UBN PLC [2000] 15 NWLR (PT 691) 447 and CONOIL PLC v DUTSE (2016) LPELR- 40236(CA).

The Court was urged to hold that the objective of the counterclaim is to ensure that justice is done between the parties and there is ample opportunity for the Appellant to file a defence to counterclaim and recall his witness.

On Issue 3, the Respondents relied on EGBO v AGBARA (1997) 1 NWLR (PT 481) and SAUDE v ABDULLAHI (1989) NWLR (PT. 116) 387 in contending that non-compliance relating to time for doing a thing under the Rules of the Court is treated as an irregularity that will not vitiate the proceedings, and that the Appellant did not raise the issue of irregularity of the statement of defence until he sought to oppose the application for amendment. Reference is made to Order 5 Rule 1 (2) and 2 (1) of the Lagos High Court (Civil Procedure) Rules, 2012.

The Respondents maintained that even if arguendo the Joint Statement of Defence dated 19/7/11 was filed out of time, the irregularity has been overtaken, negatived and swept away by the subsequent filing of an Amended Joint Statement of Claim by the Appellant (qua claimant) on 29/1/16 to which the Respondents have not yet had the benefit of consequential amendment; that in order for a procedural irregularity of the nature complained of by the Appellant to be sustained, the objection must not only be raised timeously, but must equally be shown to have occasioned a miscarriage of justice, which is not the scenario in the case at hand, calling in aid the cases of KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA), BAJOGA v GOVT., F.R.N [2008] 1 NWLR (PT 1067) 85 at 115 as well as NOIBI v FIKOLATI [1987] NWLR (PT 52) 619 in support of the proposition that a party cannot take advantage of an irregularity to which he has acquiesced.

The Respondents insisted that our Courts have since moved away from technical justice to substantial justice and will not shut their eyes to a Court process before it albeit irregular in the interest of justice, placing reliance on DAVID & ANOR v. AKINRUNTAN & ORS (2015) LPELR- 25643(CA) at 23 – 24 and MOBIL PRODUCING NIG UNLIMITED v MONOKPO [2003] 18 NWLR (PT 852) 346 at 411 and 412. This Court has been urged to affirm the ruling of the lower Court and dismiss the instant appeal in the interest of justice.

Resolution of appeal In determining this appeal, let us take bearing from Issue 3 which is a challenge to the competence or validity of the statements of defence in the consolidated suits in respect of which leave to amend was granted in the ruling appealed against. The Appellant’s contention is that there were no valid statements of defence in the consolidated suits before the lower Court that could have been amended because they were filed out of time without seeking and obtaining leave of Court so to do.

The affidavits of service (copied at pp. 40 – 44 of the records) reveal that the writs of summons, statements of claim and accompanying processes in the consolidated suits were served on 11/5/11 whilst the statements of defence were filed on 19/7/11.

The prescription of Order 15 Rule 1(2) High Court of Lagos State (Civil Procedure) Rules 2012 is that “[a] defendant shall file his statement of defence, set off or counterclaim, if any, not later than 42 days after service on him of the claimant’s originating process and accompanying documents…” The statements of defence were filed outside the stipulated 42 days, and there is no indication anywhere in the records that the Respondents sought and obtained leave of Court to file defence out of time.

But the relevant enquiry is as to the legal effect of a statement of defence filed out time without leave of Court. Does failure to comply with the timeline for delivering a statement of defence go to the roots of the competence of the defence so filed as forcefully contended by the Appellant? I would hate to think so.

Even without the necessity of seeking any external aid, Order 5 Rule 1 (2) of the Lagos High Court (Civil Procedure) Rules, 2012 makes it clear beyond peradventure that “Where at any stage in the course of or in connection with any proceedings there has by anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such steps taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps”.

Quite clearly, this provision of the rules of the lower Court defeats the Appellant’s contention without further assurance, even as the steps taken by him subsequent to the filing of the statements of defence point compellingly to waiver of whatever irregularity arising from the Respondents’ failure to file their defence within time.

By Order 5 Rule 2(1), “An application to set aside for irregularity any steps taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”, whilst subrule 2 provides that: “An application under this rule may be by summons or motion and the grounds of objection shall be stated in the summons or notice of motion”. The Applicant did not raise any objection by way of summons or motion as enjoined by the rules of Court.

He merely alleged irregularity by way of opposition to the Respondent’s application for amendment. This runs afoul of Order 5 Rule 2(1); and it seems to me ironic that a party seeking to enforce the provisions of the rules of Court against his adversary would equally fail to comply with the dictates of the same rules of Court. What is more, it cannot escape notice that the Appellant had taken several steps in the proceedings before alleging that the statements of defence were plagued by irregularity.

The statements of defence being objected to were filed on 19/7/11 albeit out of time, but the records reveal that the Appellant (qua claimant) filed amended statements of claim in the consolidated suits on 29/1/16, and proceeded to open and close his case before he subsequently raised the alleged irregularity in opposition to the Respondent’s application to amend their statements of defence.

This being so, whatever irregularity that attended the statements of defence was effectively acquiesced in and condoned by the Appellant, and it is too late in the day to rake up the fact that they were filed out of time. The law is fairly well settled that a party is not at liberty to take advantage of an irregularity to which he has acquiesced: NOIBI v FIKOLATI [1987] NWLR (PT 52) 619, AKHIWU v THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE & ANOR (1972) 1 All NLR (PT 1) 229 at 234 and ADEBAYO & ORS v SHONOWO & ORS (1969) 1 All NLR 176.

Indeed, matters procedural must be raised at the earliest opportunity (upon being served with the Court process) before taking any further steps in the proceedings, otherwise, the party alleging it will be foreclosed. See KHALID v ISMAIL & ANOR (2013) LPELR-22325(CA). That is the scenario we are confronted with in the instant appeal. In any event, the law, as I have always understood it, is that a defence irregularly introduced (whether a statement of defence or counter affidavit to originating summons) is not void but merely voidable, and the Court cannot shut its eyes to it.

See UNITED BANK FOR AFRICA v DIKE NWORA [1978] 11 – 12 SC 1 and UNITED TECHNICAL COMPANY v PAMOTEI [1989] 2 NWLR (PT 103) 244 (1989) 3 SC (PT. 1) 79. The Respondents’ failure or neglect to file the statements of defence (that were subsequently amended) within the 42-day period stipulated in the Rules of the lower Court is a mere procedural irregularity that lacks the potency to vitiate the entire proceedings or even the ruling appealed against. This sounds like a death knell on Issue 3, which is hereby resolved against the Appellant.

Let us shift attention to Issues 1 and 2, which border on the propriety of the amendment granted by the lower Court.

Specifically, Issue 1 interrogates whether the Respondents (defendants) can amend their joint statements of defence in the consolidated suits by incorporating a counterclaim after the close of the Appellant’s (claimant’s) case; whilst Issue 2 focuses on whether the Respondents are at liberty to incorporate a counterclaim which raises issues of fact that arose after the issuance of the writ of summons in the consolidate suits by way of an amendment to their joint statements of defence.

It is obvious that these two issues are intricately intertwined and can conveniently be considered together in order to conserve scarce judicial time and resource. A cardinal principle of our jurisprudence is that Courts of law exist to decide the rights of parties before it and not to punish them for errors or mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights.

The necessary corollary of the above principle is that a party may at any stage of the proceedings before judgment alter or amend his pleadings or endorsements as may be necessary for the purpose of determining the real question(s) in controversy in a case.

There is no kind of mistake or error which, if not fraudulent or intended to overreach, the Courts cannot correct if this can be done without injustice to the other party; and even though blunders occur nowadays with disturbing regularity, a Court of law (which is also a Court of equity) imbued with a sense of justice should not suffer itself to be stampeded into chasing the shadows of these blunders rather than facing the substance of the justice of the case. See ADEKEYE v AKIN-OLUGBADE [1987] 3 NWLR (PT. 60) 214.

The aim of an amendment is to prevent the manifest justice of a cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel, and the Courts have through the years taken a stance that however negligent or careless the slip may have been or however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate injustice on the adverse party. See ADEKEYE v AKIN-OLUGBADE supra.

A conspectus of decided cases reveals a general inclination or leaning by the Courts to grant an amendment save in situations where: (i) the amendment sought will occasion injustice to the other party; (ii) the applicant is acting mala fide; or (iii) the applicant has by his blunder done some injury to the respondent which cannot be compensated by costs or otherwise.

See OJAH & ORS v OGBONI & ORS (1976) 4 SC 69, (1976) 1 NMLR 95 at 99, OKAFOR v IKEANYI (1979) 3 – 4 SC 99 at 106, OKEOWO v MIGLIORE (1979) 11 SC 138 at 197 & 199 – 200, ADETUTU v ADEROHUNMU (1984) 1 SCNLR 515, [1984] NSCC 389, KODE v YESUFU [2001] 4 NWLR (PT 703) 392, AJAKAIYE v ADEDEJI [1990] 7 NWLR (PT 161) 192 and ADELAJA v ALADE [1994] 7 NWLR (PT. 358) 537.

Crucially, an amendment may be sought and granted at the close of the plaintiff’s case [see OKOLO v NWAMU (1973) 2 SC 59 at 68], and even if it is in consequence of an objection raised by the adverse party. See ITA v DADZIE [2000] 4 NWLR (PT 652) 168 at 181 (CA).

In an application for amendment of pleadings, the Court will take into consideration a number of factors, including: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question(s) in controversy; and (d) the time when the amendment is sought.

See ALSTHOM S. A. v SARAKI [2000] 14 NWLR (PT 687) 415. ​A party may substitute an entirely new pleading for an earlier one insofar as no injustice is occasioned to the adverse party, but an amendment that will enable the applicant plead a fact that was not in existence at the time of commencement of the action will not be allowed. See MOBIL OIL v COKER (1971) 1 NMLR 56 at 58.

And just as a claimant will not be allowed to bring into his case an entirely fresh cause of action which arose after the action had commenced, a defendant will also not be allowed to raise by way of an amendment to the statement of defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ: GOWON v IKE-OKONGWU [2003] 6 NWLR (PT 815) 38, (2003) LPELR-1336(SC) 1 at 9 and ESHELBY v FED. EUROPEAN BANK (1931) ALL ER 840.

But an amendment, whenever granted by the Court, relates back to the date of the original process amended; and notwithstanding that the original process does not become otiose and the Court cannot shut its eyes against such old process because it still forms part of the Court processes which the Court is entitled to look at [see OWONYIN v OMOTOSHO (1961) 2 SCNLR 57, SALAMI v OKE [1987] 4 NWLR (PT. 63) 1 at 9, AGBAISI v EBIKOREFE [1997] 4 NWLR (PT. 502) 630 at 648, AGBAHOMOVO v EDUYEGBE [1999] 3 NWLR (PT 594) 170 at 182 – 183 and BALONWU v OBI [2007] 3 NWLR (PT 1028) 488 at 536], what stood before the amendment is no longer material before the Court and ceases to define the issues to be tried.

See COL. ROTIMI v MACGREGOR (1974) 11 SC 133 at 152, OSITA NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY [1990] 2 NWLR (PT 135) 688, VULCAN GASES LTD v GESELLSCHAFT [2001] 9 NWLR (PT. 719) 610 and TSOKWA OIL MARKETING CO v BANK OF THE NORTH LTD (2002) 1 NSCQR 738 at 753. The point to vigorously underscore is that even though the Courts are liberal in allowing amendments at any stage of the proceedings before judgment, the Courts have evolved different principles to govern applications for amendment made at different stages of the litigation.

See DIAMOND BANK PLC v AMOBI UGOCHUKWU [2008] 1 NWLR (PT. 1067) 1 at 36. Whilst an amendment sought at the incipient stages of the litigation may readily be granted almost as a matter of course, the attitude of the Court is markedly different where an amendment is sought after either party has closed his case or both parties have closed their cases. But irrespective of the stage at which it is sought, the grant or refusal of an amendment is always guided by the imperative to dispense justice to the parties, having regard to the peculiar facts and circumstances of each case.

Thus, whilst the defendants were allowed to amend their statement of defence after the plaintiffs had closed their case in OJAH & ORS v OGBONI & ORS supra, it was held in ADETUTU v ADEROHUNMU [1984] NSCC 389 at 396 that the trial Court was right in refusing an amendment that would allow the defendant set up fresh facts after the case went on trial and up to the time the plaintiffs closed their case.

See also GEORGE v DOMINION FLOUR MILLS LTD (1963) 1 All NLR 71 (where an amendment that would change the nature of the case sought after the close of the claimant’s case was refused owing to the injustice or surprise it will occasion), as well as DIAMOND BANK PLC v AMOBI UGOCHUKWU supra at 37 wherein this Court (per Rhodes-Vivour, JCA as he then was) held that an application for amendment brought after the claimant had closed his case was rightly refused by the trial Court since the claimant would have been unable to call evidence on the new issues raised, thereby denying him fair hearing.

As there is undoubtedly a high tendency that an amendment sought very late in the day could overreach, or occasion injustice to, the adverse party, the Courts have evolved the principle that the only purpose for which an amendment could be allowed after the close of evidence by both parties is to bring the pleadings in conformity with the evidence led. See TAIWO v AKINWUNMI (1975) 4 SC 143, IBANGA v USANGA (1982) 5 SC 138, IMONIKHE v ATTORNEY GENERAL OF BENDEL STATE [1992] 7 SCNJ 197 at 207 at 208 and BAMISHEBI v OTE [1995] 8 NWLR (PT. 411) 1 at 9 – 11].

And even at that, the Courts act rather slowly and with utmost circumspection in order to avoid occasioning injustice to the adverse party. Indeed, in order for an application to amend pleadings at the close of evidence to succeed, the applicant must point at any piece of evidence on record which is capable of supporting the proposed amendment. See ADEAGBO v YUSUF [1990] 6 NWLR (PT 158) 588 at 591. Also, an amendment to bring pleadings in line with evidence should not be granted where the evidence led is already discordant with the pleadings.

See OBINYIRUKA v ALICHE [1991] 4 NWLR (PT. 183) 87 at 99. In the matter at hand, the trial Court granted leave to the Respondents (defendants) to amend their statement of defence to incorporate or subjoin a counterclaim after the close of the claimant’s case. At pp. 367 – 368 of the records, the lower Court held thusly: “Having read all the processes for and against this application very carefully, it is my view that the aim of amendment is to prevent the manifest justice of a case from being defeated or delayed by formal slips which arise from the inadvertence of Counsel.

An amendment of pleadings can be granted at any stage of the pleadings provided it does not introduce a new cause of action or will overreach or is prejudicial to the other party. See THE SHELL PET. DEV. (NIG) LTD v AMBAH (supra). If by an amendment a, the statement of claim will disclose a cause of action, the Court will grant an amendment sought, but the suit will be if an amendment cannot make the statement of claim, disclose a cause of action. I have checked the amendment sought by the Defendant. It is to incorporate a counter claim to the defence of the Defendant.

A counter claim to all intent and purposes is a separate action, for convenience and speed joins it with his defence. The counter claim filed by the Defendant in the instance case which is a cross-action which is in the same position as an action, and it is subject to the rules of Court as pleadings. See DABUP v KOLO (1993) 9 NWLR (PT 317) 254 AT 270. I HAVE CHECKED THE COUNTER CLAIM IT DISCLOSES CAUSE OF ACTION Against the Claimant, the Court will grant the amendment. Whether or not it will fly is another thing entirely.

I have find (sic) that the amendment sought by the Defendant will not create a new case, and will not cause injury to the Claimant that cannot be compensated by cost. Evidence in support of this amendment is already on record before the Court. See IMONIKHE v A-G BENDEL (1992) 6 NWLR (PT 248) 396 AT 409 The Claimant is at liberty to file a defence to the counter claim and recall his witnesses if need be.” Now, there is no general rule against the grant of an amendment to incorporate a counterclaim after the close of the claimant’s case.

As stated hereinbefore, the grant or refusal of an amendment is always guided by the imperative to dispense justice to the parties, having regard to the peculiar facts and circumstances of each case. Thus, leave to amend statement of defence to incorporate a counterclaim after the close of the claimant’s case was granted in FAYEMI v OLORUNFUNMI [1998] 1 NWLR (PT 534) 523.

I reckon however that leave to amend would be refused where it seeks to incorporate a counterclaim that raises an entirely fresh cause of action that accrued after the issuance of the writ [see GOWON v IKE-OKONGWU supra]; or the amendment introduces matters that inflict surprise on a claimant who had closed his case and can no longer reply thereto [see BIODE PHARMACEUTICAL INDUSTRIES LTD v ADSELL (NIG) LTD supra, ADETUTU v ADEROHUNMU supra and GEORGE v DOMINION FLOUR MILLS LTD supra].

Against this backdrop, a careful and insightful examination of the records reveals that the amendment sought was to enable the Respondents subjoin a counterclaim against the Appellant for refund of payments made to him for survey work alleged to have been negligently done, which fact came to light after the institution of the suit. The main claim itself arose from services rendered by the Appellant to the Respondents in surveying their land, and the alleged negligence on the part of the Appellant are not fresh facts or issues per se.

The counterclaim cannot therefore be said to entail fresh facts or raise a course of action that was not in existence at the time writ was issued.

The payments the Respondents seek to recover by way of counterclaim were made long before the Applicant filed the consolidated suits, and the case of GOWON v IKE-OKONGWU supra upon which the Appellant has relied is patently inapposite and inapplicable The law is well settled that a counterclaim, for all intents and purposes, is a cross-action, fresh and completely independent, separate and distinct from the one commenced by the original claimant, but triable with the main claim for reasons of convenience. See PETERSIDE v I. M.

B. (NIG) LTD [1993] 2 NWLR (PT. 278) 712 at 731-732 and IGE v FARINDE [1994] 7 NWLR (PT. 354) 42. A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim”: MAOBISON INTER-LINK LTD v U.T.C. (NIG.) PLC (2013) 9 NWLR (PT 1359) 197 at 209 –per Ariwoola, JSC (now Acting CJN).

Quite unlike a set-off which is only considered as a shield, a counterclaim is both a shield and a sword available to a defendant who has “any claim” against the claimant whether or not arising from the same transaction or series of transactions. See Order 19 Rule 6, High Court of Lagos State (Civil Procedure Rules) 2019. A counterclaimant is therefore a claimant in his own right [see UNION BANK PLC v ISHOLA [2001] FWLR (PT. 81) 1868 at 1892], and like any other claimant in an action, he must prove his case in order for him to obtain judgment.

See OBMIAMI BRICK & STONE LTD v ACB LIMITED [1992] 3 NWLR (PT 229) 260 at 298- 299, JERIC NIGERIA LIMITED v UNION BANK OF NIGERIA PLC [2001] 7 WRN 1 at 18, PRIME MERCHANT BANK v MANMOUNTAIN COMPANY [2000] 6 WRN 130 at 134, WALTER v SKYLL NIG. LIMITED [2000] 13 WRN 60 at 98, OGBONNA v ATTORNEY-GENERAL, IMO STATE [1992] 1 NWLR (PT 220) 647, NSEFIK & ORS v MUNA & ORS [2013] VOL. 12 MJSC (PT 1) 116, BILANTE INT’L LTD v NDIC [2011] 15 NWLR (PT 1270) 407, KOLADE v OGUNDOKUN [2017] 18 NWLR (PT 1596) 152 and ATIBA IYALAMU SAVINGS & LOANS LTD v SUBERU [2018] 13 NWLR (PT 1639) 387.

Taking cognisance of the fact that the counterclaim arose from the same course of action as the main claim and the Respondents did not seek to set up any fresh course of action that can be said to take the Appellant by surprise, the lower Court cannot be faulted for granting the amendment sought, notwithstanding that the Appellant had closed his case before the amendment was sought and granted.

I take the considered view that the decision of the lower Court is consistent with the interest of justice and the principle that an amendment to enable matters in controversy between the parties to be completely adjudicated upon and all issues settled once and for all ought to be allowed. Especially is this so as the Appellant (claimant) is not foreclosed in any way from defending the counterclaim. As the lower Court pointed out in the ruling appealed against, “the Claimant is at liberty to file a defence to the counter claim and recall his witnesses if need be”.

This Court (per Uwaifo, JCA as he then was) held in FAYEMI v OLORUNFUNMI supra at 529 – 530 that a plaintiff in an action where a counterclaim is put by a defendant is also a defendant for the purposes of the counter-claim, and it is only after the counterclaimant (defendant) had closed his case that the claimant (as defendant to the counter-claim) is entitled to defend the counterclaim by putting in evidence in rebuttal notwithstanding the fact that he has closed his case as ‘plaintiff’. This aptly captures the scenario in this matter.

Since it is only after the close of Respondents’ case on the counter-claim that the Appellant would be allowed to put in his defence to the counter-claim, I fail to see what injustice the amendment granted by the lower Court would occasion to the Appellant. It would have been a different thing entirely if the lower Court had refused an application by the Appellant (claimant) to put up a defence to the counterclaim or to reopen his case to enable him call evidence in rebuttal of the counterclaim raised by the Respondents (defence) after he had closed his case.

Issues 1 and 2 ought to be resolved against the Appellant, and I so resolve them. Conclusion The resolution of all three issues for determination against the Appellant signposts the failure of this appeal, and I hereby record an order dismissing it for being bereft of merit. The ruling of the High Court of Lagos State delivered on 31/5/17 is affirmed. The parties shall bear and discharge their respective costs in this ill-fated appeal.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Peter Oyinkenimiemi Affen, JCA. I endorse in toto the judicial reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal was dismissed. ​I agree with, and adopt as mine the comprehensive resolution of the issues as done by my learned brother. I see no merit in this appeal. It is also dismissed by me. I abide by the orders made in the leading judgment.

Judgment

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the ruling and final decision of the High Court of the Federal Capital Territory, Abuja, delivered on 7th February, 2013 and 21st July, 2015, respectively, in Suit No: FCT/HC/CV/207/2010. This case was originated by the 1st Respondent who as a Plaintiff took out a Writ of Summons against the Appellant, 2nd and 3rd Respondents as Defendants at the lower Court. The Amended Writ of Summons was taken out on 22nd July, 2010 and sought the following reliefs in the Statement of claim, thus:- 1.

A Declaration that the plaintiff is the rightful allottee and owner of all that property known as plot No. 613 with Old file Number AB 302, New File Number AB 10328 of about 2,100 Square Metres with Cadastral Zone B11 of Kaura District, Abuja. 2. A Declaration that the plaintiff is entitled to peaceful possession and occupation of all that property known as plot No. 613 with Old File Number AB 302, New Number AB 10328 of about 2,100 Square Metres within Cadastral Zone B11 of Kaura District, Abuja ​3.

A Declaration that the purported double allocation and or reallocation of plot No. 613 with Old File Number AB 302, New File Number AB 10328 of about 2,100 Square Metres within Cadastral Zone B11 of Kaura District. Abuja by the 1st Defendant to the 3rd Defendant is illegal, a breach of due process of law, null, void and of no effect. 4.

An Order of this Honorable Court, restraining perpetually the Defendants, their agencies, department, allies, agents, officers, workman and all those deriving or claiming through them from further interference, obstruction and disturbance of plaintiff’s rights over the property known as plot 613 with Old File Number AB 302, New File Number AB 10438 of Kaura District, Abuja. 5. Any Order or Orders as this Honourable Court may make in the circumstances.

The 1st and 2nd Defendants, now 2nd and 3rd Respondents denied the claim of the 1st Respondent vide a Joint Statement of Defence on the 29th March, 2011. ​The parties joined issues on the Writ and the matter proceeded to trial. The 1st Respondent testified on her behalf as PW1 and tendered several documents in evidence which were marked as Exhibits.

The 2nd and 3rd Respondents called a lone witness and tendered several documents in evidence which were admitted and marked as Exhibits On the 5th October, 2012 the 1st Respondent moved an application which was similar to an earlier application that was heard on the merit and dismissed by the trial court, the Court granted the second application which was seeking for reliefs praying the court for amendment of pleadings. At the close of trial, learned counsel at the trial Court adopted their respective final written addresses filed on behalf of the parties.

In a reserved judgment delivered by the trial Court on the 21st July, 2015, the trial Court entered judgment for the 1st Respondent, granting the relief sought in the Writ. Aggrieved by this decision, the Appellant filed the instant appeal vide an Amended Notice of Appeal filed on the 31st day of May, 2018. There are twelve grounds of appeal listed in the notice of appeal.

The Record of Appeal was compiled and transmitted to this Court on the 20th April, 2016, Briefs of Argument were filed and exchanged in the following manner: Appellant’s Brief of Argument dated 30th May, 2018, but filed 31st May, 2018.1st Respondent’s Brief of Argument dated 12th February, 2021 and filed the same date. While Appellant’s Reply Brief of Argument was dated 18th February, 2021 and filed on 22nd February, 2021.

However, before we proceed to the issues in the substantive appeal, let us treat the issues raised by the Appellant from the Interlocutory ruling of the trial Court, following the motion granted to argue fresh issues. The Appellant raised three issues which are: 1. Whether or not the learned trial Judge was right to grant the 1st Respondent reliefs contained in motion (M/513/2012) of 5/10/2012 when the reliefs sought are substantially similar with the reliefs sought in Motion (M/10688/2012) previously dismissed by the trial Court. (Distilled from Grounds 1 and 2) 2.

Whether the learned trial Judge was right having regard to the circumstance of the case to allow the 1st Respondent further amend her pleadings when indeed, the amendment sought introduced new issues which completely changed the case of the 1st Respondent against the Appellant. (Distilled from Grounds 3 and 4) 3.

Whether the learned trial Judge was right to have premised his grant of the reliefs sought by the 1st Respondent in Motion M/513/2012 of 01/10/2012 particularly as it relates to the reliefs seeking leave of Court to amend her pleadings and to reopen her case for the purpose of tendering relevant documents earlier omitted “to mistake or inadvertence of counsel” when no such excuse or indeed any reason was canvassed in the affidavit in support of the application. (Distilled from Grounds 5 and 6).

I will proceed to consider and resolve the three issues together in one fell swoop, as the issues are connected one way or the other. ISSUES ON RULING OF MOTION M/513/2012: Learned counsel for the Appellant while arguing this issue cited the case of Omeika v. Omeika (2013) 13 NWLR (Pt. 1371) 423 AT 432 and argued that where a trial Court has given a decision in a case on the merit, the Court is functus officio in relation to the case and it cannot ordinarily reopen it for fresh hearing and that the only option available to a dissatisfied party is to appeal against it. Counsel cited A.D.H Ltd v.

Min., FCT (2013) 8 NWLR (Pt. 1357) 493 AT 521 and submitted that the learned trial Judge having heard and determine the former application on merit cannot hear the latter application substantially similar to the one previously heard on merit without offending the doctrine of functus officio. Counsel relied on the cases of TSA Industries Ltd v. FBN Plc (No. 1) (2012) 13 NWLR (Pt. 1320) 326 AT 345; African Re-Insurance Corp. v. J.D.P Construction (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) 609; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156; Kode v. Yusuf (2001) 4 NWLR (Pt. 703) 392.

Learned counsel for the Appellant submitted that an appellate Court is loath to interfere with the way a lower Court exercised its discretion but will be compelled to interfere if the discretion was wrongly exercised, or was tainted with some irregularity or was in breach of law, or where the Court finds that it is in the interest of justice to interfere. Counsel relied on the case of Ajuwa v. S.P.D.C.N Ltd (2011) 18 NWLR (Pt. 1279); University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Imonikhe v. Attorney General, Bendel State (1992) 7 SCNJ 197 George & Ors v.

Dominium Flour Mills Limited (1963) 1 All NLR 71; Mrs. C. I. Adetutu v. Mrs. W. O. Aderohunmu & Ors (1984) 6 SC 92; Willoughby v. I.MB Limited (1987) 1 NWLR (Pt. 48); Tiwani Limited v. Citi Trust Merchant Bank Limited (1997) 8 NWLR (Pt. 515); Bamishebi v. Ote (1995) 9 SCNJ 220 AT 228; Lawrence v. Lord Norreys (1888) 39 Chd. 213.

Learned counsel for the Appellant further submitted that where a trial Court takes into consideration extraneous matter or where it shuts its eyes to cogent facts presented to it or hazard a guess as was in the instant case, to arrive at a finding or decision; such finding or decision will be taken to be perverse and will be set aside on appeal. Counsel cited Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Christaleb Plc v. Majekodunmi (2011) 5 NWLR (Pt. 1240) 294 AT 308; Shofolahan v. State (2013) 17 NWLR (Pt. 1383) 281 AT 312.

In response, learned counsel for the 1st Respondent argued that all issues raised by a party in an appeal must derive from the grounds of appeal and the only exception is where a Respondent wish to challenge the jurisdiction of the Court by way of Preliminary Objection. Counsel relied on Yadis Nigeria Limited v. Great Nigeria Insurance Company Limited (2007) LPELR-3507 (SC); Tiza & Anor v. Begha (2005) LPELR-3251 (SC); Ohikhuare v. Malami & Ors (2013) LPELR-22348 (CA); Uboh v. FRN (2019) LPELR 48739 (CA).

Learned counsel for the 1st Respondent submitted that the Appellant is not the party that is entitled to bring such a complaint. She is not a party covered by the Public Officers Protection Act. She is a private party and nowhere in the suit was it indicated that she performed any act in the capacity as to be covered by the Public Officers Protection Act. Counsel relied on Airtel Networks v. George & Ors (2014) LPELR-22951 (CA); Mobil Producing Nigeria Unltd. v. Lasepa & Ors (2002) LPELR- 1887 (SC).

Learned counsel for the Appellant in his reply brief argued that the issue of jurisdiction is so fundamental that it can be raised by any of the parties to the matter or suo motu by the Court and anyhow by either of the litigating parties at any stage of the proceedings even for the first time on appeal at the Supreme Court for the reason that, parties cannot by themselves by consent, confer jurisdiction on a Court. Counsel relied onAccor (Societe Anonyme) v. H.I.R Ltd (2019) 18 NWLR (Pt. 1703) 44 AT 55; Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 417; Kuranga v.

Benge (2015) LPELR-25977; UBA & Anor v. Ezekiel (2018) LPELR-43779; Tukur v. Govt, of Gongola State (1989) 9 SC AT 34; Adu v. Lagos State Taskforce on Environmental and Special Offences Unit (2017) 11 NWLR (Pt. 1575) 32. ​In the instant appeal, the grievances of the Appellant against the interlocutory ruling and consideration were well placed before this Court. The trial Court had dismissed Motion reference no: M/10688/2012, before considering the later Motion reference no: 5/10/2012. The handling of the latter Motion is what is being challenged in the appeal.

Let me bring to light the Motions as captured in the Record of Appeal. The first Motion No: M/10688/2012. The Motion prayed for: 1. An Order of this Honourable Court granting leave to the Plaintiff to recall the plaintiff’s sole witness. 2. An Order of this Honourable Court granting leave to the Plaintiff to file additional witness statement on oath. 3. An Order of this Honourable Court recalling the 1st and 2nd Defendants’ sole witness. 4. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances. ​It was heard on 17/6/2012 at pages 254-255.

Then it was ruled upon on 11/7/2012 at pages 256-265. The Motion was refused for lacking in merit. The second Motion was heard on 12/11/2012. It was ruled upon at pages 266 to 274. The Motion had the following reliefs: 1. An Order of this Honourable Court granting leave to the Plaintiff/Applicant to further amend her statement of claim. 2. An Order of this Honourable Court granting leave to the Plaintiff/Applicant to file additional witness statement on oath. 3.

An Order of this Honourable Court granting leave to the Plaintiff/Applicant to reopen her case for the purpose of tendering relevant documents earlier omitted. 4. An Order of this Honourable Court deeming the Plaintiff’s Further Amended Statement of Claim and the Additional Witness Statement on Oath filed separately but along with this Motion as properly filed and served, all requisite fees having been paid.

This Motion was ruled upon and the trial Court in allowing the Motion said at pages 273 to 274, as follows: In the instant application, I hold the firm view that the amendment sought is for the purpose of determining the real issue in controversy between the parties and it will not overreach or prejudice the defendant. The Supreme Court in a recent decision in the case of Ologun v. Fatayo (2013) 1 NWLR Pt. 1325 pg. 303 at 316-317 para.

E-B, held thus “The aim of amendment is usually to prevent the manifest justice of the cause from being defeated or delayed by formal slips which arise from the inadvertence of counsel. It will certainly be wrong to visit the inadvertence or mistake of counsel on a litigant.

The Courts have therefore through the years taken a stand that however negligent or careless may have been the slip, however late the proposed amendment, it ought to be allowed if this can be done without injustice to the other side, for a step taken to ensure justice cannot at the same time be used to perpetuate an injustice on the opposite party.

The test as to whether a proposed amendment should be allowed is therefore whether or not the party applied to amend can do so without placing the opposite party in such a position which cannot be redressed by that panacea which heals every sore in litigation namely costs”. In the light of what is stated above, I am of the considered view that this application ought to be granted since it has not introduced a new issue and it has not overreached or prejudiced the Defendants. This application is accordingly granted as prayed for in the interest of doing substantial justice.

The grievances of the Appellant are that the trial Court had in the Motion refused the request of the 1st Respondent for filing additional witness statement on oath. That having once refused the application, the Court cannot revisit it. This issue as raised cannot be raised in vacuo without a consideration of its impact on the course of justice. The purpose of every Court in adjudication is to ensure that justice is delivered to the parties in the case. In carrying out this task, it is required of the Court to ensure that the interest of justice and no more is the primary consideration.

Justice, it is well known also demands that the interest of the opponent or respondent is factored into the consideration of the Court. A quick look at the two Motions in contention in this case will show that the two are similar but not the same. The earlier Motion had no contemplation of amending the statement of claim as the second Motion did. The request for amendment of statement of claim was made based on the desire of the 1st Respondent/Applicant to amend her claim. The grant of such a request is discretionary.

The law is sacrosanct that such exercise must be carried out judicially and judiciously having regards to the facts and circumstances of the case. A clear view of the decision of the trial Court in respect of the said Motion shows that the trial Court was justified in granting the Motion in the interest of justice. The Appellant has not in the appeal placed any justifiable reason to show that the amendment has caused him any injustice.

The law is well settled that upon amendment of the statement of claim, the defendant is at liberty to amend his statement of defence in so far as is necessary to meet the facts introduced by the amendment. Failure to amend will leave the Respondent with his original statement of defence. See the case of Mobil Oil (Nig.) Plc v. IAL 36 INC (2000) 6 NWLR (Pt. 659) 146. In the instant case, the 1st Respondent amended his claim after the Court allowed the leave sought for the amendment. The amendment then gave the Court the opportunity to determine the real controversy between the parties.