Court of Appeal http://nigerialii.org/ en Mainstreet Bank Limited v General Steel Mills Limited And Ors (L 906 of 2013) [2016] NGCA 28 (26 May 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/28 <span class="field field--name-title field--type-string field--label-hidden">Mainstreet Bank Limited v General Steel Mills Limited And Ors (L 906 of 2013) [2016] NGCA 28 (26 May 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/81" hreflang="x-default">CL, Have his cause heard (fair trial), Documentary Evidence</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The crux of the matter is whether or not the trial court erred in holding the appellant/defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the court. The appellant contended that the lower court’s refusal to re-open the case amounted to a violation of its right to fair hearing. The court held that the appellant had ample time to defend its case but failed.<br />     <br /> The second issue was whether the exhibits admitted by the lower court were deserving of ascription of any probative value. The court held that documentary evidence can be admitted in the absence of the maker; what matters is admissibility. This means that a document can be admitted without the court attaching probative value to it. </p> <p>The court reiterated that where the lower court fails to examine documents tendered before it, an appellate court is in good position to evaluate such exhibits. The court thus held that the lower court erred when it held that the respondents were entitled to judgment.</p> <p>In the result, the appeal succeeded even though the first issue was held in favor of the respondent.<br />  </p> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong></div> </div> <p> </p> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>MAINSTREET BANK LIMITED</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>GENERAL STEEL MILLS LIMITED<br /> GENERAL PIPE INDUSTRY LIMITED<br /> UNITED METAL PLASTICS LIMITED<br /> INTERNATIONAL ENAMEL WARE INDUSTRY LIMITED</p> <p> </p> </div> <p> </p> <div> <div> <p><strong>JUDGMENT</strong></p> <p><strong>(Delivered By TIJJANI ABUBAKAR, JCA)</strong><br /> This appeal is against the Judgment of the Federal High Court, Lagos Division delivered by I. N. Buba J. on 28/06/2013 in suit No: FHC/L/CS/522/2009.<br /> The summary of the case at the Court below is that the suit was instituted by the Respondents as Plaintiffs against the Appellant as Defendant, somewhere along the line the learned counsel for the Appellant abandoned the case, consequently the Respondents as Plaintiffs opened their case in the absence of the Defendant and/or its counsel, the case of the Defendant was closed and the suit was adjourned for final address all in the absence of the Defendant. Afterwards, another counsel sought to be substituted for the previous counsel on record who had abandoned the Defendant/Appellant, and sought by a Motion on Notice that the case be re-opened for the defendant to be heard, the Plaintiffs/Respondents opposed the said Motion and the Court in its Ruling refused the application to have the case re-opened for the defense to be heard. The Court thereafter delivered judgment in favor of the Plaintiffs/Respondents. The Defendant became aggrieved by the judgment and therefore filed the Notice of Appeal herein. The Notice of Appeal dated 5/8/2013 and filed 6/8/2013 contains three Grounds of Appeal; the grounds less their respective particulars are reproduced as follows:<br /> 1. The learned Mai Judge erred in law when the Court delivered its Judgment and held that the Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court<br /> 2. The Honorable Court misdirected itself when on the one hand the Court relied wholly on the case of and submissions of the Plaintiffs (now Respondents) and held that their testimony was unchallenged and as such deemed admitted by the Defendant, was unchallenged and as such deemed admitted by the Defendant, and on the other hand regarding the Written Final Address submitted by the Defendant (now Appellant) held that submissions that are not backed by evidence goes to no issue. So also pleadings that is not supported by evidence is deemed abandoned.<br /> 3. Whether the Honorable Court did not misdirect itself when it awarded the sum of N33,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) as money deducted from the Plaintiffs account and interest on the judgment sum at the rate of 21 % from December2007 till judgment and 6% from the date of judgment until it is finally liquidated.</p> <p> The learned counsel for the Respondent nominated two issues for determination; the issues are also reproduced as follows:<br /> 1. Whether having regard to the facts, circumstances, records and the judgment of the trial court, the Appellant was not given ample opportunity of fair hearing in the court below.<br /> 2. Whether on the evidence presented before the Lower Court by the Respondents, a case had been properly made out to warrant judgment on the Statement of claim.<br /> I have carefully examined the issues submitted for determination, I am of the view that Appellants issues for determination are capable of providing platform for discourse in this appeal, I therefore adopt them as the issues to resolve in the determination of this appeal. Let me quickly add, that Appellants issues two and three shall be discussed and resolved together.</p> <p>ISSUE ONE</p> <p>In his submissions, learned counsel for the Appellant referred to NZEKWE V. ANAEKWENEGBU [2011] 16 NWLR (Pt. 1274) 431 at 436 and U.B.N. PLC V. LAWAL [2012] 6 NWLR (Pt. 1295) 186 at 191 to submit that Rules of Court must be interpreted in such a manner as to prevent undue adherence to technicalities, and that parties should not be punished for the mistake and inadvertence of Counsel when such mistake or inadvertence is in respect of procedural matters. He submitted that the previous counsel for the Defendant (now Appellant) never withdrew from the suit before the Court below in accordance with the Rules of the Court, but rather abandoned the case and contended that the Appellant should not suffer for the omission and mistake of Counsel.</p> <p>Learned counsel argued that the trial Court neglected the essence of the Rules of Natural Justice and fundamental principles of Audi Alteram Partem by ruling against the Appellant and refusing to grant the orders sought by its Notice of Change of Counsel. He cited ELIAS Vs. SOWEMIMO [2012] 4 NWLR (Pt. 1289) 63 at 66, EMEKA Vs. OKADIGBO [2012] 18 NWLR (Pt. 1331) 55 at 70 and EKPENETU Vs. OFEGOBI [2012] 15 NWLR (Pt. 1323) 276 at 284-285 and submitted further that, the right to fair hearing which is constitutionally provided for under Section 36 (1) of 1999 Constitution (as Amended) is so fundamental that it cannot be expressly or impliedly waived nor taken away by statute.</p> <p>In his response on this issue, learned counsel for the Respondent contended that the Appellant showed a consistent lack of interest in defending the suit before the lower Court despite being regularly informed by correspondence of the progress of the matter, He added that the Appellant had more than enough time to be heard but failed to act on that right, he submitted that the Appellant did not utilize the opportunity offered by the Court. He relied on the decisions in MICRO-LION INTERNATIONAL (NIG) LTD. Vs. GAZADIMA [2009] 14 NWLR (Pt. 1162) 481 CA at 486 and ASSOCIATED ELECTRONIC PRODUCTS (NIG) LTD Vs. AADE INDUSTRIAL AND INVESTMENT COMPANY LTD. [2010] 44 WRN 181 at 183 to submit that the grant or refusal of an application falls within the discretionary powers of the Court which must be exercised judicially and judiciously in considering the conduct of the Appellant, and that the refusal by the lower Court to reopen the case was in exercise of the Court's discretionary powers having regard to the Appellant's conduct throughout the trial of the case at the lower Court.</p> <p>Learned Counsel referred to Order 7 Rules 1(1) and (2), Order 8 Rules 1 and 2, and Order 14 Rules 1 and 7 of the Federal High Court (Civil Procedure) Rules 2009 to submit that the where a defendant is in default of appearance, a plaintiff may apply to a judge for judgment for the claim on the originating process or such lesser sum and interest as the Judge may order. He submitted further that though the Court would not punish a party for the mistakes of his counsel, however, equity aids the vigilant and not the indolent and delay defeats equity. He cited COLITO (NIG.) LTD V. DAIBU [2010] 2 NWLR (Pt. 1178) CA 217 and AUDU V. INEC (No. 2)[2010] 13 NWLR (Pt. 1212) CA 456 at 475 to submit that an Applicant relying on the above stated rules of Court must show that his conduct is not reprehensible and that there was no delay on his part in bringing the application. He submitted further that fair hearing does not apply where the litigant has missed the opportunity given to him to ventilate his grievance at the hearing of a case, and that the Appellant was given ample opportunity to be heard in line with Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).</p> <p>Learned counsel referred to WILLIAMS &amp; ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY [1982] All NLR 1 &amp; 2 SC 145 and IDAM UGWU &amp; ORS. V. NWAJI AND OTHERS (1962) ALL NLR 438 to submit that the Court in exercising its discretion to consider an application made out of time would consider the Rules of court and the conduct of the Appellant throughout the proceedings. Learned counsel for the Respondent further submitted that where a party to a suit has been accorded reasonable opportunity to be heard and for no justifiable or cogent reason neglects to attend the sitting of the Court, he is thereafter deemed to have abandoned his case and cannot complain of breach or denial of fair hearing. Learned counsel referred to ABANA V. ONI [2015] 6 NWLR (Pt. 920) 183 at 189 and urged this Court to hold that the Appellant was given ample opportunities but failed to defend the suit and therefore cannot be heard to complain of the breach of his right.<br /> In the Reply brief, learned counsel for the Appellant reiterated his earlier submissions that the case of the Defendant/Appellant was closed on the day the case was listed and adjourned for mention and not for trial and that no Hearing Notice was served on the Appellant. He referred to ASHIRU V. AYOADE [2006] 6 NWLR (Pt. 976) 405 at 425 - 426 Para. G - A and submitted that in refusing to reopen the defense wrongfully closed by the Court on a date that the case was adjourned for mention, and the failure to serve any Hearing Notice, the lower Court closed the door to fair hearing on the Appellant and sacrificed substantial justice to the alter of speed and quick justice.</p> <p>The crux of this issue is whether or not the trial court erred in holding that the Appellant/Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court. The contention of the Appellant is that the refusal by the trial court to re-open the case amounted to a violation of its right to fair hearing under section 36 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended).<br /> To resolve this Issue it is necessary to x-ray the proceedings of the lower Court, this will be done to determine whether from the proceedings, it will be obvious that the appellant in this appeal was truly denied fair hearing. For this purpose therefore the records of appeal particularly pages 1-240 of Vol. I of the records are relevant, the records show that the suit was instituted by the Respondents against the Appellant by a writ of summons dated 20/5/2009 and accompanied by a Statement of claim and other documents at the lower court. Page 241 of Volume I of the record reveals that the matter came up before the lower court for the first time on 26/6/2009 and the Appellant was absent and unrepresented. The case was then adjourned to 16/7/2009 for mention, on the 16/17/2009, the Appellant was again absent and unrepresented, the Respondents on the other hand sought an adjournment to be heard on their motion dated 13/7/2009 seeking an order of court to enter judgment against the Appellants (Defendants at the lower court) in default of appearance and pleadings. The court adjourned to 5/10/2009 for hearing, these facts are contained at pages 243 - 252 of Volume I of the records of appeal.</p> <p>At pages 257 - 259 of Volume I of the records of appeal, the Appellant, by a motion on Notice dated 2/10/2009, sought for an order of the lower court for an extension of time within which it could file and serve its memorandum of appearance and statement of defense and an order of the lower court deeming its memorandum of appearance and statement of defense as properly filed and served. The Appellant also filed a motion for striking out of the Respondents' (plaintiff's) statement of claim, which was also dated 2/10/2009.<br /> As recorded at pages 402 - 404 of Vol. II of the records, on the adjourned date, the Respondent's counsel did not oppose the motion for the extension of time, and in fact, withdrew their motion dated 13/7/2009 for an order of court to enter judgment against the Appellants (Defendants as the lower court) in default of appearance and pleadings. The Court granted the prayer for the extension of time and struck out the motion for judgment. The Appellant (Defendant's) counsel sought for an adjournment for hearing on its other motion for order of court striking out the Respondents' (plaintiffs') statement of claim, the court adjourned to 10/11/2009 to hear the motion for striking out.</p> <p>The records also show that parties were absent but were represented by their respective counsel on the 4/2/2010 at page 478 of Vol. II of the records; 29/4/2010 at page 497 of Vol. II of the records; 24/5/2010 at page 501 of Vol. II of the records; and on 13/7/2010 at page 667 of Vol. II of the records, Respondents (Plaintiffs) were represented by one D. Isikwere. The court adjourned to 25/10/2010 for trial.</p> <p>However, on 25/10/2010 as can be seen at pages 668 - 669 of Vol. II of the records, Appellant and its counsel failed to appear before the lower court, while the plaintiffs were represented by one D. Isikwere. Trial commenced with PW1 giving evidence in chief, and the court adjourned to 14/12/2010 for continuation of trial.</p> <p>On 14/12/2010, Appellant and its counsel were again absent in court without any notice conveying reasons for its absence, the court adjourned to 7/2/2011 for continuation of trial and ordered service of hearing notice. The Respondents' counsel by a letter at page 675 of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court, informed them of the position of the case and that the matter had been adjourned to 7/2/2011. The Notice of hearing served on the Appellant's counsel and received by one Blessing O., Secretary in the law firm is exhibited at page 674 of the records.</p> <p>On 7/2/2011, the Appellants were again absent in court, the lower court closed the case of the Respondent and opened the case of the defense. The Court adjourned to 17/5/2011 and ordered issuance of hearing notice. Records show that the Appellant was absent and unrepresented in court without any notice on 14/11/2011; 8/5/2012; 28/6/2012; 20/11/2012; 5/2/2013 and</p> <p>26/2/2013. Meanwhile, the Respondents consistently served on the Appellant letters informing them of the position of the case and the date the matter had been adjourned to. The letters are exhibited at pages 706 – 706D and 711, of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court.<br /> Meanwhile, at page 712 of Vol. II of the records, in a letter dated 1/3/2013 addressed to the Respondents' (Plaintiffs') Counsel by one Chibuzo Anaeto (Miss) of Andy Igboekwe &amp; Co, indicated that they were no longer the solicitors to Mainstreet Bank Plc. and advised that the Appellant should serve all court processes on the Bank directly. To this end, the Respondents counsel wrote the Appellant bank directly vide letter dated 4/3/2013 informing it of the pendency of the matter before the court and the next adjourned date which was 6/3/2013; this letter is at page 713 of Vol. II of the records.<br /> On 6/3/2013, the court did not sit. Respondents again wrote a letter dated 7/3/2013 which is exhibited at page 715 of Vol. II of the records informing the Appellant bank directly of the matter and the next adjourned date being 12/4/2013. It is pertinent to note that the letters directed to the Appellant Bank were acknowledged as received. On 12/4/2013, the Appellant was again absent and unrepresented; the Court closed the plaintiff's case and adjourned to 8/5/2013 for adoption of final written address, page 716 - 717 of Vol. II of the records confirms this. Again, the Respondent's counsel wrote the</p> <p>Appellant bank directly vide a letter dated 30/4/2013 exhibited at 717A of Vol. II of the records informing the Appellant of the progress of the case and the next adjourned date.<br /> On 8/5/2013, as shown at page 718 - 719 of Vol. II of the records, Mr. Ikenna Onwusika and Edward Porbeni appeared for the Appellant. The lower Court held that there was no valid notice of change of counsel and that the erstwhile counsel did not withdraw but only abandoned the court. The Learned trial judge adjourned to 15/5/2013 for addresses. Thereafter, the new counsel for the Appellant filed a motion on notice for change of counsel dated 9/5/2013. The motion is exhibited at page 721 -727 of Vol. II of the records. The new counsel also filed a motion seeking the Order of the lower court to allow the Appellant (Defendant) to reopen its case which had been closed on 12/4/2013 in the absence of the Defendants.</p> <p>On the next adjourned date, 15/5/2013, the Respondent's counsel did not object to the Notice of change of counsel but opposed the Appellant's Motion to reopen its case. The court adjourned to 12/6/2013 for the hearing of the motion, page 739 - 740 of Vol. II the record shows all these facts. The Appellant's counter-affidavit dated 5/6/2013 was supported by exhibits and written address, which can be seen at page 743 - 760 of Vol. II of the records.</p> <p>On 12/6/2013, the lower court heard the motions of counsel and adjourned to 17/6/2013. On 17/6/2013, the court received the counter affidavit of the Respondents to the Appellants motion, and then the court delivered its ruling wherein the court dismissed the Application of the Appellants. The ruling is contained at 1021 - 1023 of Vol. Ill of the records of appeal. Parties thereafter adopted their final written addresses and the court adjourned for judgment. The final judgment of the lower court delivered on 27/06/2013 is contained at page 1074 -1137 of Vol. Ill of the records.</p> <p>From the records as summarized above, it is without doubt that the submission of the Appellants counsel that the Appellant was never served is incorrect and untrue. The Respondent informed the Appellant's counsel who abandoned the case and upon receipt of that counsel's letter that they no longer represent the Appellant, the Respondent directed the letters of Notice to the Appellant. Despite all these, the Appellant failed to show up in court until it was apparently too late for them to do so.</p> <p>It is trite that the court is a place where serious businesses are conducted and those who have business in the court must take it with all sense of seriousness, respect and reverence. I must state that the attitude of the erstwhile counsel for the Appellant at the lower court who without notice abandoned the court is blameworthy and unbecoming of a responsible legal practitioner. The duty of a Counsel who has been briefed by a litigant and has accepted the brief is to present his client's case with utmost devotion, sincerity and honesty and where the counsel wishes to withdraw appearance from representing a client in court, his duty is to duly inform the court. See OGBORU &amp; ANOR Vs. UDUAGHAN &amp; ORS (2013) LPELR-20805(SC), CHUKWU &amp; ANOR Vs. INEC &amp; ORS (2014) LPELR-22221(SC) 52 and NGERE &amp; ANOR Vs. OKURUKET &amp; ORS (2014) LPELR-22883 (SC) 25. However, a litigant has a duty to be vigilant and diligent towards his case, it is not enough for a litigant to brief a counsel and then go to sleep. The cause of action affects the litigant more directly than the counsel and the Appellant herein should have been more than concerned in seeing that the case was diligently prosecuted. It is not enough for a litigant to entrust his case in the hands of Counsel and recline his seat and go to sleep.<br /> In the case of OKOCHA Vs. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held as follows and I quote:</p> <p>"The business of the Court must be conducted with expedition; and a counsel who was not in Court at the time his client's case was called could not blame anybody but himself, I also accept that it is wrong in principle to visit the sin of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalize the party that was in Court at the proper time to argue its case only because of such principle of not visiting counsel's sin on the litigant."</p> <p> See: also GOV BENUE STATE Vs. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 and NIGERIAN AGRICULTURAL &amp; COOPERATIVE BANK LTD Vs. MR. LEWECHI OZOEMELAM (2004) LPELR - 5955.<br /> Learned Counsel for the Appellant also argued that the appellant was denied fair hearing. In SUNKANMI ADEBESIN Vs. THE STATE (2014) LPELR-22694 (SC) 40 it was held as follows and I quote:</p> <p>"The general rule as provided by the Constitution is certainly trite that the principle of fair hearing is not negotiable. The question however, is whether the appellant was infact denied such right in the case at hand. If the answer is in the positive, the outcome of the entire proceeding would be vitiated and nullified."</p> <p>Can it therefore be said from the records of proceedings and the materials before the Court, which I have already summarized above that the Appellant in the instant case was denied fair hearing?, the answer is definitely in the negative. The Appellant who was given enough time to defend the case against it but abandoned its defense in court cannot claim denial of fair hearing, the Court cannot wait for a party until he is sufficiently pleased to appear in Court in the name of fair hearing. See MFA &amp; ORS Vs. INONGHA (2014) LPELR-22010 (SC) 26. where the Supreme Court per NGWUTA, JSC held on the principle of fair hearing as follows and I quote;</p> <p>"The process of fair hearing is a two-edged sword and it cuts both ways - appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the appellants could not substantiate their allegation of denial of fair hearing".</p> <p> I adopt the holding by my Lord Ngwuta JSC and hold that the Appellant in this appeal cannot allege denial of fair hearing, the lower Court was generous and lavish in accommodating the sluggish attitude of the appellant. The Appellant had ample time to defend its case but failed to do so. When opportunity is given to a party to defendant an action, and the party for some reasons decides to drag its feet, the Court has discharged its obligation to the party, and if the party fails to take advantage of the opportunity, the Court is not to blame; the sluggish party must bear the consequence. This issue is therefore resolved against the Appellant.</p> <p>ISSUES TWO AND THREE<br /> I shall take the arguments of the Appellant on issues 2 (two) and 3 (three) together. The argument of the Appellant under issue 2 (two) is that there was no basis to deem the evidence and testimony of the Respondents' Witness as unchallenged and that unchallenged evidence cannot be conclusive proof of a Plaintiff's case when the law specifically sets out conditions to be met before the Court can hold that the Plaintiff's case succeeds. He referred to the following cases: ABI Vs. C.B.N. [2013] 3 NWLR (Pt. 1286) 1 at 16, ONYIA Vs. ONYIA [2012] 3 NWLR (Pt. 1286) 182 at 184, SLJUADE V. OYEWOLE [2012] 11 NWLR (Pt. 1311) 280 at 288, UJOATUONU Vs. ANAMBRA STATE GOVT. [2010] 15 NWLR (Pt. 1217) 421 at 439-440,</p> <p>OMOREGBE Vs. LAWANI (1998) 3-4 SC 108 and CONSOLIDATED BREWERIES PLC Vs. AISOWIEREN [2002] FWLR (Pt. 116) 959 at 990; (2001) 15 NWLR (Pt. 736) 424 to submit that the Plaintiffs have a duty to prove their case and succeed on the strength of their case and cannot be allowed to rely on the weakness of the case of the Defendant. He argued that the case of the Respondents was not proved and accordingly should not be allowed to succeed, and that if the Plaintiff has not proved his case, evidence of rebuttal does not arise.<br /> Learned counsel further submitted that it is the role of the trial Court to make findings of facts based on the credibility of the witness who testified and the probability of their story, and to properly evaluate the totality of evidence before coming to a decision to believe or disbelieve a witness or piece of evidence in the just determination of the case. He referred to LAYINKE &amp; ANOR Vs. MAKINDE &amp; ORS [2002] 10 NWLR (Pt. 775) 358 at 375; ATANDA Vs. AJANI [1989] 3 NWLR (Pt. 111) 511 at 524 and ARABAMBI Vs. ADVANCE BEVERAGES IND. LTD [2005] 19 NWLR (Pt. 959) 1 at 8.</p> <p> Learned counsel for the Appellant argued that the issue before the trial Court was highly contentious and the case was not undefended, and the refusal of the lower Court to re-open the case of the Defense to be heard on the merits is a fundamental error that led to substantial injustice in the determination of the suit. He postulated that the justice of the case demands that the matter be sent back to the trial Court for hearing on the merit. He referred to GAM BO Vs. IKECHUKWU [2011] 17 NWLR (Pt. 1277) 561 at 564 and H.B. (NIG.) PLC V. LODIGIANI (NIG) LTD [2010] 14 NWLR (Pt. 1213) 330 at 336. Learned counsel further submitted that no hearing notice was issued and served on the Defendant/Appellant or on the Counsel for the Defendant on record as at the date the case of the Defendant was closed. He therefore urged this Court to allow the appeal.</p> <p> On issue number three Learned counsel for the Appellant contended that the basis of the Judgment of the court below for the sum of N433, 891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) in favor of the Plaintiffs/Respondents was based on the erroneous conclusion that the Plaintiffs/Respondents engaged the services of their accountant who reviewed and analyzed the transaction, calculated the figure and arrived at the sum as the amount overcharged by the Defendant/Appellant. He contended further that the process is flawed and there was no expert opinion received during the course of trial to justify the claimed figures, and that the evidence of the Plaintiffs' witness amounts to hearsay and his report was not duly stamped, the lower Court therefore ought not to have acted upon it.</p> <p> Learned counsel submitted that the trial Court misdirected itself when it awarded the said sum of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo because the sum was arrived at based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. He submitted further that the Court below misdirected itself when it awarded 21% of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo as prejudgment sum from December 2007 till judgment was given, and also awarded Five Million Naira as damages.<br /> Learned Counsel urged this Court to allow this appeal, set aside the judgment of the Court below and the orders made pursuant to the said judgment, and to dismiss the case of the Respondents. Alternatively, learned counsel urged this Court to make an order remitting this case back to the Federal High Court, Lagos division for full trial on the merits before another judge.</p> <p> On issue number two, learned Counsel for the Respondents submitted that Exhibits P3A1 - P3A29 were admitted in evidence before the trial Court as documentary evidence, and that the lower Court in no way misdirected itself in relying on the submissions and evidence of the Respondents in the absence of the Appellant. He referred to C.D.C. NIG. LTD Vs. SCOA NIG.LTD [2007] 30 WRN 81 SC at 93, and OLALOMIIND. LTD Vs. NIDB LTD [2009] 16 WRN (Pt. 1167) 266 SC at 277, Counsel submitted that the 32 exhibits which were tendered by the Respondents witness, Mr. Daniel Isikhumen, the Assistant Manager, Administration and Operation (Liaison Office) of the 1st Respondent Company were all admitted by the Court and neither the Appellant nor its counsel attended the trial proceedings to challenge the evidence laid before the Court despite being issued several hearing notices and letters informing them of the dates and.<br /> Learned counsel submitted that the established evidence clearly settles this issue in favor of the Respondents as the evidence was unchallenged and not contradicted, and ought to be accepted by the Court. He referred to P.C.O OLUDAMILOLA Vs. THE STATE [2010] 2-3 SC (Pt. 111) 194 at 209, ADIM Vs. NBC LTD [2010] 9 NWLR (Pt. 1200) 543 SC at 549, AKINOLA Vs. UNIVERSITY OF ILORIN [2004] 35 WRN 79 CA at 89 and OGBE Vs. ASADE [2009] 18 NWLR (Pt. 1172) 106 SC at 112 and submitted that the Appellant had a duty to rebut the evidence at trial by cross-examining the witness yet they failed to do so.</p> <p> Learned counsel further contended that the case of ABI Vs. CBN [2013] 3 NWLR (Pt. 1286) 1 at 16 relied on by the Appellant was quoted out of context, and that the Respondents/Plaintiffs succeeded on the strength of their case. Counsel further contended that the submissions of the Appellant that the case of the Respondents was based on a flawed report which was arrived at through a flawed process has no legal or factual basis, and that there was no evidence of such at the Court below and such conclusion cannot in be sustained.</p> <p> Learned Counsel for the Respondents submitted that pleadings cannot constitute or replace evidence and a Defendant who does not give evidence in support of his pleadings is deemed to have abandoned same and that where a party fails to give evidence in support of his pleadings or in challenge of the plaintiff's, he is deemed to have accepted the facts adduced by the plaintiff notwithstanding the general traverse. He referred to FEDERAL CAPITAL DEVELOPMENT AUTHORITY V. ALHAJI MUSA NAIBI [1990] 5 SC (Pt. II) 79, NASL &amp; ANOR Vs. UBA &amp; ANOR (2008) 8 SCM 189, FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR &amp; ANOR (1993) 12 SCNJ 82, THE ADMINISTRATOR/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA Vs. SAMUEL DAVID EKE-SPIFF [2009] 2-3 SC (Pt. II) 93 and ALHAJI USMAN BUA Vs. BASHIRU DAUDA [2003] 13 NWLR (Pt. 838) 657 at 672, 6 SC (Pt. 11) at 1203. Learned counsel further relied on U.O.C. B.N LTD Vs. OKONKWO [2009] 5 NWLR (Pt. 1134) 401 at 404 and ANPP Vs. INEC [2010] 13 NWLR (Pt. 1212] 549 at 561 and urged this Court to hold that the unchallenged evidence of the Respondents were substantial and cogent enough to prove the averments in the statement of claim.</p> <p> Learned counsel contended that there was no evidence that the Accountant's report was arrived at through a flawed process as submitted by the Appellant in its brief, and that there is no law that prescribes that a reports by accountants on overcharging of interest must be duly stamped for it to be admissible contrary to the submissions of the Appellant in Paragraph 4.3.1 at page 14 of the Appellants brief of argument. Learned counsel further contended that the Appellant's reliance on M.H. (NIG) LTD &amp; ANOR Vs. OKEFUNA [2011] 6 NWLR (Pt. 1244) 514 at 533 to submit that it is general practice that credit facility obtained from a commercial institution will come with interests chargeable on the facility lacks merit as there was no evidence led in the Court below of such established practice or custom. Learned counsel cited STANDARD TRUST BANK LTD Vs. INTERDRILL NIG LTD [2007] All FWLR (Pt. 366) 756, to submit that a general custom or practice cannot override the express terms of the contract as agreed and contained in the facility letter which is a document that both parties signed. He further submitted that a contract is binding and enforceable and should be treated with sanctity, and that the Court would not make a contract for the parties by reading into a contract what was not intended by the parties. He referred to BABA Vs. NIGERIA CIVIL AVIATION TRADING CENTER [1991] 5 NWLR (Pt. 192) 338 and BALIOL NIGERIA LTD Vs. NAVCON NIGERIA LTD [2010] 16 NWLR (Pt. 1220) at 630.</p> <p> Learned counsel submitted that the Appellant was in breach of contract by wrongfully importing a non-existent pricing term into the contract and by further over charging and wrongfully deducting money from the Respondent account. He referred to ZAKHEM CONSTRUCTION (NIG) LTD Vs. NNEJI [2002] 5 NWLR (Pt. 759) 55 and N.M.A. INC (2010) 4 NWLR (Pt. 1185) 813. Learned counsel submitted further that the basis for the award of interest by the Court below is that the Appellant kept the Respondents out of their money and had the use of it to itself for which it ought to compensate the Respondents accordingly. He referred to SKYMIT MOTORS LTD Vs. U.B.A. PLC [2012] 10 NWLR (Pt. 1309) 491; DIAMOND BANK LIMITED Vs. P.I.C. LTD [2009] 18 NWLR (Pt. 1172) 97 to submit that the Respondents proved their case and were therefore entitled to the award of interest on the Judgment sum at the rate of 21% from December 2007 till judgment, and 6% from the date of judgment until it is finally liquidated. Learned counsel urged this Court to find that the lower Court did not misdirect itself in awarding the sum of N433,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, and Thirty Three Kobo) as money deducted from the Respondents' account and interest on the judgment sum at the rate of 21% from December 2007 till judgment and 6% from the date of judgment until it is finally liquidated, and that the appeal be dismissed.</p> <p> In Reply, Learned counsel for the Appellant referred to GBADAMOSIV. DAIRO [2007] 3 NWLR (Pt. 1021) 282 at 306 - 307 Para. H - B to further submit that the Appellant did not fail to cross examine the Plaintiffs/Respondents' witness as submitted by the Respondents, but rather, the Appellant had no such opportunity to cross-examine the said witness or to lead evidence due to unjust refusal of the Court below to reopen the case of the Appellant which amounts to injustice and complete lack of fair hearing. He submitted that it was the Counsel on record for the Appellant who failed to attend Court. Learned counsel urged this Court to discountenance the argument and cases cited in the Respondent's brief as they are not relevant to this case and an attempt to excuse, explain, and justify the miscarriage of justice at the lower Court in this case. He cited AUDU V. FRN [2013]5 NWLR (Pt. 1348) 397 at 410 - 411,to state that even where an allegation of delay of justice is sustained, it cannot be equated to an outright denial of justice, and/or deliberate miscarriage of justice. Again, learned Counsel urged this Court to hold that the proceedings and the Judgment of the lower Court in this suit is in breach of the rules of fair hearing and as such a nullity and same be accordingly struck out. He further urged this Court to allow the appeal, set aside the judgment of the lower Court and all the orders made pursuant to the said judgment, and dismiss the case of the Respondents, or alternatively make an order remitting this case back to the Federal High Court, Lagos Division for full trial on the merits before another judge.<br /> The instant issue borders principally on the question as to whether, notwithstanding the fact that the Respondents failed to lead evidence or even cross-examine the Respondent's witness, the Plaintiffs/Respondents prove their case before the lower to warrant the entry of judgment by the lower court.</p> <p>Before proceeding further, it is instructive to note that in the instant case, the Appellant indeed filed its statement of defense in response to the Respondents' statement of claim. Therefore, it will not be correct in my view to hold that the suit was totally undefended. I believe that there is a dichotomy in instances where the suit as instituted by a Plaintiff will be deemed undefended and in other instances, as in the instant case, where the defendant, though entered appearance and properly filed his statement of claim but failed to take advantage of the ample opportunity provided by the court for him to either cross-examine the witness(s) called by the Plaintiff or ipso facto, lead evidence in rebuttal to the evidence led by the Plaintiff by calling his own witness and also tendering exhibits in support of his defense. In this latter category, where the defendant filed a statement of defence, the burden rests first on the Plaintiffs, which are the Respondents herein, to establish before the lower court that they are entitled to the claim(s) or relief(s) sought as per the statement of claim. It is settled principle of law in civil proceedings that a Plaintiff must succeed on the strength of his own case and not on the weakness of the defense. See: AKPORUE &amp; ANOR. Vs. OKEI &amp; 2 ORS. [1973] 12 S.C, NKADO Vs. OBIANO [1997] 5 NWLR (Pt.503) 31AKANDE Vs. ADISA &amp;ANOR. [2012] LPELR-7807 (SC) 59.<br /> Now, can it be said that the learned trial judge properly evaluated the evidence before him before reaching the conclusion that the Respondents are entitled to judgment as per their Statement of Claim. I must say that it is the function of a trial judge to evaluate evidence placed before him. In MBANEFO Vs. MOLOKWU &amp; ORS 2008 LPELR - 3696 (CA), My Lord and Learned Brother TSAMIYA, JCA said as follows:<br /> The function of a trial judge in the assessment and evaluation of evidence involves two functions. Firstly, the matter of assessment in order to determine material evidence to be placed on the imaginary scale and secondly the evaluation of the evidence in order to determine in which side the scale tilts. The duty of appraising evidence given at a trial is pre-eminently that of the court of trial that saw and heard the witnesses and it is also the right of the Court to ascribe values to such evidence...."<br /> The above decision of my learned brother remains the law and it is beyond dispute that this court shall not interfere with the findings of fact by the trial court where it is supported by evidence led before the court. Thus, this court will only disturb such findings of fact where it is perverse and/or is not based on the evidence generated at the trial by parties.</p> <p>In the instant appeal, and having regard to the resolution of issues one in favor of the Respondents, it is obvious that the Respondents' pleadings as per their Statement of Claim were accompanied by evidence led thereon vide an Amended Written Statement on Oath dated 22/02/2010 and An Additional Written Statement on Oath dated 25/09/2009.</p> <p>Section 133 of the Evidence Act, 2011 states:<br /> "(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, having regard to any presumption that may arise on the pleadings.<br /> (2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to prove is established, the burden lies on the other party against whom judgment would be given if no more evidence is adduced, and so on successively, until all the issues in the pleadings have been dealt with.<br /> (3) Where there are conflicting presumptions, the case is the same as if there were conflicting presumptions.<br /> Section 134 reads:<br /> "The burden of proof shall be discharged on the balance of probabilities in all civil proceeding."<br /> While it remains undisputed that the standard of proof required of the Respondents in the instant case, is that on the balance of probabilities, it is also obvious from the unambiguous provisions of Section 133(2) of the Act that the burden of proof shifts from and to each of the respective parties in establishing their claim and/or defense before the court. As earlier noted, the Plaintiff led evidence before the lower court, vide, two written statements on oath. At paragraph 9 of the Amended Statement on Oath, the Plaintiff's sole witness, Mr. Daniel Isikhuemen, the Assistant Manager, Administration and Operation (Lagos Liaison Office) of the 1st Respondent deposed as follows:<br /> "10. The Plaintiffs accounts listed in paragraph 8 above were over charged and deducted at various times by the Defendant<br /> 11. The Plaintiffs complained and made several representations regarding the irregular deductions on their accounts to the Defendant vide their letters of IS December2006and 18 January 2008 both of which are now shown to me and a copy of each attached hereto as Annexures 7 and 8 respectively.<br /> 12. The 4th Plaintiff gave specific bidding rate "to drawdown" for the facilities to the Defendant which the Defendant flagrantly disregarded without notifying the 4* Plaintiff. The Defendant admitted this fact in its letter 15th February 2007 which is now shown to me and a copy attached hereto as Annexure 9.<br /> 13.<br /> 14. Flowing from paragraph 12 and 13 above, the 1st and 2nd Plaintiffs are not responsible for any act done or bidding made by the Defendant in the absence of clear instructions or agreement to that effect.<br /> 15. The Defendant never resolved or reconciled the differences in the accounts and also failed to refund the excess interest of 2% admitted by it when it charged 19% instead of17% interest rate agreed.<br /> 16. The Defendant breached its contract with the Plaintiffs by over-charging their account, making improper deductions and importing certain pricing terms that were not part of the contract at any time.<br /> 17. When the Plaintiffs realized that the Defendant was unwilling to calculate and refund the sum deducted they engaged the services of their accountant who reviewed and analyzed the transactions, calculated the figures and arrived at a total sum of 4423,530,085.21 (Twenty Three Million, Five Hundred and Thirty Thousand, Eighty Five Naira, Twenty One Kobo) as the amount over charged and improperly deducted. A summary of the overcharges from January 2005 to December 2007 is attached hereto as marked as Annexure 22.<br /> 18. The Plaintiffs requested that the over charged amount stated in paragraph 17 above which covers the period between January 2005 and December 2006 be refunded to them. The 1st Plaintiff’s letter of January 2008 together with correct computation of charges ("scheduled") sent to the Defendant has already been shown to me and attached hereto as Annexure 8 in paragraph 12 above.<br /> 19. The Plaintiffs thereafter reviewed and analyzed the transactions for the period covering January to December 2007 and found that a sum of 443,368,201.83 (Three Million, Three Hundred and Sixty Eight Thousand, Two Hundred and One Naira Eighty three Kobo) was over charged. The Plaintiffs requested that the said sum be refunded to it vide its letter of 4 March 2008 together with its attached schedule which is now to me and a copy attached hereto as Annexure 23.<br /> 20. The Defendant shirked away from the main issue raised in all the Plaintiffs letters and admitted to refund just a total sum of 442,089,925.27 (Two Million Eighty Nine Thousand, Nine Hundred and Twenty Five Naira, Twenty Seven Kobo) which is significantly at variance with the correct over charged sum while purporting to have addressed the issues raised by the Plaintiff's letters. The Defendants letter of 20 May 2008 is now shown to me and a copy attached hereto as Annexure 24.<br /> 21. The Defendants claim about their adopting 360 days in the calculation of interest is baseless, unfounded and an afterthought to avoid liability as it actually used the 365 day Count Convention. The correct calculation schedule revealing this is already attached hereto Annexure 22.<br /> 22. The Bank's calculation of penal interests charged when the Plaintiffs' accounts exceeded the approved limit were exaggerated. The correct calculation schedule revealing this is now shown to me and a copy of the same attached hereto as Annexure 25.<br /> 23. The Defendant imported a non-existing pricing term into the facility letter of 21 February 2007 (Annexure 7) and which had no pricing terms on the basis of which the Defendant wrongfully deducted a total sum of 4410,361,257.12 (Ten Million, Three Hundred and Sixty One Thousand, Two Hundred and Fifty Seven Naira, Twelve Kobo). The conclusion schedule establishing this deducted amount is now shown to me and a copy of same attached hereto Annexure 26.<br /> 24. The overcharges and improper deductions to the Plaintiffs' account currently amount to the sum of N33,891,342.33 (Thirty Three Million Eight Hundred and Ninety One Thousand, Nine Hundred and Forty Two Naira, Thirty Three Kobo). The schedule showing a clear calculation of these improper charges and deductions is already attached hereto as Annexure 22 in paragraph 17 above.<br /> 25. The Plaintiffs have made every effort to recover the sum in paragraph 24 above peacefully and amicably but never got the co-operation of the Defendants.<br /> 26.<br /> 27.<br /> 28. The Defendant in its letter of 16 February 2009 denied most of our claims. The said letter of 16 February is now shown to me and a copy attached hereto as Annexure 28."</p> <p>The above evidence of the Respondents' sole witness was neither contradicted nor challenged by the Appellant. The implication therefore is that the Appellant is deemed to have admitted the statement of facts stated therein by the witness and this therefore requires no further proof by the Respondents. Nonetheless, the question remains whether the Respondents were indeed entitled to judgment as per the evidence before the court?<br /> The Respondents through their witness stated that there were overcharges and improper deductions in the Respondents' account which amount to the sum of M33,891,342.33 (Thirty Three Million Eight Hundred and Ninety One Thousand, Nine Hundred and Forty Two Naira, Thirty Three Kobo), the amount being claimed by them in the instant suit. See paragraph 24 of the Witness Statement on Oath reproduced above. Respondents tendered several exhibits, which were admitted by the lower court, but of great relevance here is Exhibit P3A26 and P3A27, which contains the computation of the overcharges and improper deduction done by the Respondents' Accountant.<br /> Now, Exhibit P326 at page 857 of the record shows the summary of interest charges (STWC interest rate) which the Respondents contends was not mentioned in the offer letter prepared by the Appellant and executed by both parties and the sum therein totalled N10,361,257.12 for the period 01/01/2007 to 31/12/2007, while Exhibit P327 is summary of overcharges for the period from 01/01/2005 to 31/12/2007 which the Respondents calculated to be N23,530,085.21, bringing outstanding sum of N33,891,342.33. There is no contrary evidence by the Appellant upon which the trial court will determine whether the sum alleged by the Respondents is not a true reflection of the sum overcharged. A fortiori, it is not the contention of the Appellant that the total sum arrived at by the Respondents is not as per the terms of the contract entered into by both parties; indeed the contention of the Appellant's counsel is that the sum so arrived at was based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. There is no evidence before the lower court upon which the argument is predicated. I am unable to agree with the Appellant's counsel that the outstanding sum established by the Respondents was based on faulty computation without any evidence to the contrary. How the Respondents arrived at the total sum is clearly evident on the face of Exhibits P326 and P327.</p> <p>Meanwhile, Appellant's counsel argued that Exhibit P3A26 is documentary hearsay. It is settled law that only the maker of documentary evidence can tender it. The essence no doubt is to give the other side the opportunity to cross-examine the maker of the document as to the contents of the document being tendered. However, I am conscious of the settled position of the law that "it is relevance that determines the admissibility of a document”. The resounding words of my lord NIKI TOBI, JSC in OMEGA BANK NIG. PLC Vs. OBC LTD [2005] 8 NWLR (Pt. 928) 541 at 582 to 583, is apt in this regard. The Learned Jurist said as follows and I quote:</p> <p>Let me take the issue of non-maker of the document tendering it It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a court of law will not attach any probative value to the document and a document that a court that the court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence can be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker... After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document are two different things..."</p> <p> In the light of the foregoing, while I agree that the trial court rightly admitted Exhibit P3A26 and P3A27 having regard to the fact that it is relevant to the suit of the Respondents, the question remains whether the Exhibits indeed are deserving of ascription of any probative value. In the instant case, the Respondents' sole witness who was not the maker of the report tendered Exhibits P3A26 and P3A27. This fact was conceded by the Respondents' counsel at paragraph 4.43 (b) of his brief of argument where he noted that the exhibits, particularly Exhibit P3A26 were tendered by an employee of the 1st Respondent. No reason was given as to why the Accountant who prepared the report was not called as a witness, this lapse on the part of the Respondents has created lacuna in the value to be ascribed to the document. As NIKITOBI, JSC held in OMEGA BANK (supra), where as in the instant case, the maker of a document is not dead and it is not shown that so much expense would be incurred in calling him as a witness by the Plaintiffs, no probative value will be attached to the document so tendered and same is not worth more than a mere paper as clearly set out in the decision of the Supreme Court cited.</p> <p> The claim of the Respondent is no doubt erected on the contents of Exhibit P3A27, which obviously has no probative value, and where a claim is erected on shaky and porous pedestal, such claim is bound to collapse. Exhibit P3A27 is not a public document that can be admitted through any witness upon certification. The document herein is a private document, and therefore ought to be tendered by the maker. The Respondents' claim stands and falls on Exhibit P3A27. In reaching his conclusion that the Respondents were entitled to judgment, the learned trial judge at Page 1134, Vol. Ill of the records of appeal said as follows:</p> <p> "The court read the entire process and deliberately reproduced the address of learned counsel verbatim because the defendant failed, refused and/or neglected to defend this suit. Therefore the plaintiff’s evidence remains unchallenged. This is a breach of contract for which this Court believes damages will flow as the defendant owes the plaintiff a duty under the contract.</p> <p> This court must state that all the submission that is not backed by defence goes to no issue. So also a pleading that is not supported by evidence is deemed abandoned. In sum this Court accepts the unchallenged and uncontroverted evidence of the plaintiff that is capable of believe (sic) and hereby enter judgment for the plaintiff against the defendant as per the Plaintiffs claim in paragraph 28 of the Amended Statement of Claim before the Court to wit..."<br /> It is obvious from the above-reproduced judgment of the lower Court that the learned trial Judge did not conduct proper assessment of evidence led before him by the plaintiffs. This is against the background that, even where a Defendant fails to take ample opportunity offered to him by the court to lead evidence or contradict the evidence led by the Plaintiffs as in the instant appeal, the plaintiffs, that is, the Respondents in the instant appeal, have the duty to establish legitimate claim to the reliefs sought. With all due respect to the Learned trial Judge, there is apparent indication of misdirection on the part of the lower Court, when the Court failed to evaluate the evidence led by the plaintiffs/Respondents before reaching a decision. In EKONG Vs. OTOP &amp; Ors. [2014] 11 NWLR (Pt. 1419) 549 at 573, OKORO JSC, said as follows and I quote.<br /> "It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial court. Where the trial court fails to examine documents tendered before it, an appellate court is in a good position to evaluate such exhibits...."<br /> Having examined Exhibit P3A27 and found that the maker was not called as a witness, no probative value can be ascribed to the exhibit, I am of the view that the lower Court erred when it held that the Respondents were entitled to judgment. Issues two and three are resolved in favor of the Appellant. Notwithstanding the resolution of issue one in favour of the Respondent, this appeal nonetheless succeeds and it is accordingly allowed. The Judgment of Buba J., of the Federal High Court, delivered on 28th June 2013 is hereby set-aside.<br /> Parties in this appeal shall bear their respective costs.</p> <p>SAMUEL CHUKWUDUMEBI OSEJI I had the privilege of reading the draft copy of the judgment just delivered by my learned brother TIJJANI ABUBAKAR JCA.<br /> I agree with his reasoning and conclusion that the appeal be allowed in part.<br /> I also will and hereby allow the appeal in part. I abide by the consequential orders made in the lead judgment including order as to costs.</p> <p>Abimbola Osarugue Obaseki-Adeiumo, JCA My learned brother, TIJJANI ABUBAKAR, JCA obliged me with an advance copy of the judgment which he just delivered. I agree with his reasoning and conclusion reached therein. In the same terms as the leading judgment, I find the appeal of the Appellant to be meritorious and same is hereby allowed. I abide by the order as to cost made therein.</p> </div> </div> <p><strong>Counsel</strong></p> <p>Ikenna Onwusika with Edward Porbeni for the Appellant<br /> J. 0. Omisade with A. Abbass, D. Dibi for the Respondent</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-5f0e873b0e7bffc0fe9e370e19532d76110c2ac09914e5f5a782d8423607caf3"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong></div> </div> <p> </p> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>MAINSTREET BANK LIMITED</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>GENERAL STEEL MILLS LIMITED<br /> GENERAL PIPE INDUSTRY LIMITED<br /> UNITED METAL PLASTICS LIMITED<br /> INTERNATIONAL ENAMEL WARE INDUSTRY LIMITED</p> <p> </p> </div> <p> </p> <div> <div> <p><strong>JUDGMENT</strong></p> <p><strong>(Delivered By TIJJANI ABUBAKAR, JCA)</strong><br /> This appeal is against the Judgment of the Federal High Court, Lagos Division delivered by I. N. Buba J. on 28/06/2013 in suit No: FHC/L/CS/522/2009.<br /> The summary of the case at the Court below is that the suit was instituted by the Respondents as Plaintiffs against the Appellant as Defendant, somewhere along the line the learned counsel for the Appellant abandoned the case, consequently the Respondents as Plaintiffs opened their case in the absence of the Defendant and/or its counsel, the case of the Defendant was closed and the suit was adjourned for final address all in the absence of the Defendant. Afterwards, another counsel sought to be substituted for the previous counsel on record who had abandoned the Defendant/Appellant, and sought by a Motion on Notice that the case be re-opened for the defendant to be heard, the Plaintiffs/Respondents opposed the said Motion and the Court in its Ruling refused the application to have the case re-opened for the defense to be heard. The Court thereafter delivered judgment in favor of the Plaintiffs/Respondents. The Defendant became aggrieved by the judgment and therefore filed the Notice of Appeal herein. The Notice of Appeal dated 5/8/2013 and filed 6/8/2013 contains three Grounds of Appeal; the grounds less their respective particulars are reproduced as follows:<br /> 1. The learned Mai Judge erred in law when the Court delivered its Judgment and held that the Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court<br /> 2. The Honorable Court misdirected itself when on the one hand the Court relied wholly on the case of and submissions of the Plaintiffs (now Respondents) and held that their testimony was unchallenged and as such deemed admitted by the Defendant, was unchallenged and as such deemed admitted by the Defendant, and on the other hand regarding the Written Final Address submitted by the Defendant (now Appellant) held that submissions that are not backed by evidence goes to no issue. So also pleadings that is not supported by evidence is deemed abandoned.<br /> 3. Whether the Honorable Court did not misdirect itself when it awarded the sum of N33,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) as money deducted from the Plaintiffs account and interest on the judgment sum at the rate of 21 % from December2007 till judgment and 6% from the date of judgment until it is finally liquidated.</p> <p> The learned counsel for the Respondent nominated two issues for determination; the issues are also reproduced as follows:<br /> 1. Whether having regard to the facts, circumstances, records and the judgment of the trial court, the Appellant was not given ample opportunity of fair hearing in the court below.<br /> 2. Whether on the evidence presented before the Lower Court by the Respondents, a case had been properly made out to warrant judgment on the Statement of claim.<br /> I have carefully examined the issues submitted for determination, I am of the view that Appellants issues for determination are capable of providing platform for discourse in this appeal, I therefore adopt them as the issues to resolve in the determination of this appeal. Let me quickly add, that Appellants issues two and three shall be discussed and resolved together.</p> <p>ISSUE ONE</p> <p>In his submissions, learned counsel for the Appellant referred to NZEKWE V. ANAEKWENEGBU [2011] 16 NWLR (Pt. 1274) 431 at 436 and U.B.N. PLC V. LAWAL [2012] 6 NWLR (Pt. 1295) 186 at 191 to submit that Rules of Court must be interpreted in such a manner as to prevent undue adherence to technicalities, and that parties should not be punished for the mistake and inadvertence of Counsel when such mistake or inadvertence is in respect of procedural matters. He submitted that the previous counsel for the Defendant (now Appellant) never withdrew from the suit before the Court below in accordance with the Rules of the Court, but rather abandoned the case and contended that the Appellant should not suffer for the omission and mistake of Counsel.</p> <p>Learned counsel argued that the trial Court neglected the essence of the Rules of Natural Justice and fundamental principles of Audi Alteram Partem by ruling against the Appellant and refusing to grant the orders sought by its Notice of Change of Counsel. He cited ELIAS Vs. SOWEMIMO [2012] 4 NWLR (Pt. 1289) 63 at 66, EMEKA Vs. OKADIGBO [2012] 18 NWLR (Pt. 1331) 55 at 70 and EKPENETU Vs. OFEGOBI [2012] 15 NWLR (Pt. 1323) 276 at 284-285 and submitted further that, the right to fair hearing which is constitutionally provided for under Section 36 (1) of 1999 Constitution (as Amended) is so fundamental that it cannot be expressly or impliedly waived nor taken away by statute.</p> <p>In his response on this issue, learned counsel for the Respondent contended that the Appellant showed a consistent lack of interest in defending the suit before the lower Court despite being regularly informed by correspondence of the progress of the matter, He added that the Appellant had more than enough time to be heard but failed to act on that right, he submitted that the Appellant did not utilize the opportunity offered by the Court. He relied on the decisions in MICRO-LION INTERNATIONAL (NIG) LTD. Vs. GAZADIMA [2009] 14 NWLR (Pt. 1162) 481 CA at 486 and ASSOCIATED ELECTRONIC PRODUCTS (NIG) LTD Vs. AADE INDUSTRIAL AND INVESTMENT COMPANY LTD. [2010] 44 WRN 181 at 183 to submit that the grant or refusal of an application falls within the discretionary powers of the Court which must be exercised judicially and judiciously in considering the conduct of the Appellant, and that the refusal by the lower Court to reopen the case was in exercise of the Court's discretionary powers having regard to the Appellant's conduct throughout the trial of the case at the lower Court.</p> <p>Learned Counsel referred to Order 7 Rules 1(1) and (2), Order 8 Rules 1 and 2, and Order 14 Rules 1 and 7 of the Federal High Court (Civil Procedure) Rules 2009 to submit that the where a defendant is in default of appearance, a plaintiff may apply to a judge for judgment for the claim on the originating process or such lesser sum and interest as the Judge may order. He submitted further that though the Court would not punish a party for the mistakes of his counsel, however, equity aids the vigilant and not the indolent and delay defeats equity. He cited COLITO (NIG.) LTD V. DAIBU [2010] 2 NWLR (Pt. 1178) CA 217 and AUDU V. INEC (No. 2)[2010] 13 NWLR (Pt. 1212) CA 456 at 475 to submit that an Applicant relying on the above stated rules of Court must show that his conduct is not reprehensible and that there was no delay on his part in bringing the application. He submitted further that fair hearing does not apply where the litigant has missed the opportunity given to him to ventilate his grievance at the hearing of a case, and that the Appellant was given ample opportunity to be heard in line with Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).</p> <p>Learned counsel referred to WILLIAMS &amp; ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY [1982] All NLR 1 &amp; 2 SC 145 and IDAM UGWU &amp; ORS. V. NWAJI AND OTHERS (1962) ALL NLR 438 to submit that the Court in exercising its discretion to consider an application made out of time would consider the Rules of court and the conduct of the Appellant throughout the proceedings. Learned counsel for the Respondent further submitted that where a party to a suit has been accorded reasonable opportunity to be heard and for no justifiable or cogent reason neglects to attend the sitting of the Court, he is thereafter deemed to have abandoned his case and cannot complain of breach or denial of fair hearing. Learned counsel referred to ABANA V. ONI [2015] 6 NWLR (Pt. 920) 183 at 189 and urged this Court to hold that the Appellant was given ample opportunities but failed to defend the suit and therefore cannot be heard to complain of the breach of his right.<br /> In the Reply brief, learned counsel for the Appellant reiterated his earlier submissions that the case of the Defendant/Appellant was closed on the day the case was listed and adjourned for mention and not for trial and that no Hearing Notice was served on the Appellant. He referred to ASHIRU V. AYOADE [2006] 6 NWLR (Pt. 976) 405 at 425 - 426 Para. G - A and submitted that in refusing to reopen the defense wrongfully closed by the Court on a date that the case was adjourned for mention, and the failure to serve any Hearing Notice, the lower Court closed the door to fair hearing on the Appellant and sacrificed substantial justice to the alter of speed and quick justice.</p> <p>The crux of this issue is whether or not the trial court erred in holding that the Appellant/Defendant was given ample opportunities but failed, refused and/or neglected to defend the suit and present its case before the Court. The contention of the Appellant is that the refusal by the trial court to re-open the case amounted to a violation of its right to fair hearing under section 36 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended).<br /> To resolve this Issue it is necessary to x-ray the proceedings of the lower Court, this will be done to determine whether from the proceedings, it will be obvious that the appellant in this appeal was truly denied fair hearing. For this purpose therefore the records of appeal particularly pages 1-240 of Vol. I of the records are relevant, the records show that the suit was instituted by the Respondents against the Appellant by a writ of summons dated 20/5/2009 and accompanied by a Statement of claim and other documents at the lower court. Page 241 of Volume I of the record reveals that the matter came up before the lower court for the first time on 26/6/2009 and the Appellant was absent and unrepresented. The case was then adjourned to 16/7/2009 for mention, on the 16/17/2009, the Appellant was again absent and unrepresented, the Respondents on the other hand sought an adjournment to be heard on their motion dated 13/7/2009 seeking an order of court to enter judgment against the Appellants (Defendants at the lower court) in default of appearance and pleadings. The court adjourned to 5/10/2009 for hearing, these facts are contained at pages 243 - 252 of Volume I of the records of appeal.</p> <p>At pages 257 - 259 of Volume I of the records of appeal, the Appellant, by a motion on Notice dated 2/10/2009, sought for an order of the lower court for an extension of time within which it could file and serve its memorandum of appearance and statement of defense and an order of the lower court deeming its memorandum of appearance and statement of defense as properly filed and served. The Appellant also filed a motion for striking out of the Respondents' (plaintiff's) statement of claim, which was also dated 2/10/2009.<br /> As recorded at pages 402 - 404 of Vol. II of the records, on the adjourned date, the Respondent's counsel did not oppose the motion for the extension of time, and in fact, withdrew their motion dated 13/7/2009 for an order of court to enter judgment against the Appellants (Defendants as the lower court) in default of appearance and pleadings. The Court granted the prayer for the extension of time and struck out the motion for judgment. The Appellant (Defendant's) counsel sought for an adjournment for hearing on its other motion for order of court striking out the Respondents' (plaintiffs') statement of claim, the court adjourned to 10/11/2009 to hear the motion for striking out.</p> <p>The records also show that parties were absent but were represented by their respective counsel on the 4/2/2010 at page 478 of Vol. II of the records; 29/4/2010 at page 497 of Vol. II of the records; 24/5/2010 at page 501 of Vol. II of the records; and on 13/7/2010 at page 667 of Vol. II of the records, Respondents (Plaintiffs) were represented by one D. Isikwere. The court adjourned to 25/10/2010 for trial.</p> <p>However, on 25/10/2010 as can be seen at pages 668 - 669 of Vol. II of the records, Appellant and its counsel failed to appear before the lower court, while the plaintiffs were represented by one D. Isikwere. Trial commenced with PW1 giving evidence in chief, and the court adjourned to 14/12/2010 for continuation of trial.</p> <p>On 14/12/2010, Appellant and its counsel were again absent in court without any notice conveying reasons for its absence, the court adjourned to 7/2/2011 for continuation of trial and ordered service of hearing notice. The Respondents' counsel by a letter at page 675 of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court, informed them of the position of the case and that the matter had been adjourned to 7/2/2011. The Notice of hearing served on the Appellant's counsel and received by one Blessing O., Secretary in the law firm is exhibited at page 674 of the records.</p> <p>On 7/2/2011, the Appellants were again absent in court, the lower court closed the case of the Respondent and opened the case of the defense. The Court adjourned to 17/5/2011 and ordered issuance of hearing notice. Records show that the Appellant was absent and unrepresented in court without any notice on 14/11/2011; 8/5/2012; 28/6/2012; 20/11/2012; 5/2/2013 and</p> <p>26/2/2013. Meanwhile, the Respondents consistently served on the Appellant letters informing them of the position of the case and the date the matter had been adjourned to. The letters are exhibited at pages 706 – 706D and 711, of Vol. II of the records dated 14/12/2010 addressed to A.C. Igboekwe, the counsel who had been representing the Appellant at the lower court.<br /> Meanwhile, at page 712 of Vol. II of the records, in a letter dated 1/3/2013 addressed to the Respondents' (Plaintiffs') Counsel by one Chibuzo Anaeto (Miss) of Andy Igboekwe &amp; Co, indicated that they were no longer the solicitors to Mainstreet Bank Plc. and advised that the Appellant should serve all court processes on the Bank directly. To this end, the Respondents counsel wrote the Appellant bank directly vide letter dated 4/3/2013 informing it of the pendency of the matter before the court and the next adjourned date which was 6/3/2013; this letter is at page 713 of Vol. II of the records.<br /> On 6/3/2013, the court did not sit. Respondents again wrote a letter dated 7/3/2013 which is exhibited at page 715 of Vol. II of the records informing the Appellant bank directly of the matter and the next adjourned date being 12/4/2013. It is pertinent to note that the letters directed to the Appellant Bank were acknowledged as received. On 12/4/2013, the Appellant was again absent and unrepresented; the Court closed the plaintiff's case and adjourned to 8/5/2013 for adoption of final written address, page 716 - 717 of Vol. II of the records confirms this. Again, the Respondent's counsel wrote the</p> <p>Appellant bank directly vide a letter dated 30/4/2013 exhibited at 717A of Vol. II of the records informing the Appellant of the progress of the case and the next adjourned date.<br /> On 8/5/2013, as shown at page 718 - 719 of Vol. II of the records, Mr. Ikenna Onwusika and Edward Porbeni appeared for the Appellant. The lower Court held that there was no valid notice of change of counsel and that the erstwhile counsel did not withdraw but only abandoned the court. The Learned trial judge adjourned to 15/5/2013 for addresses. Thereafter, the new counsel for the Appellant filed a motion on notice for change of counsel dated 9/5/2013. The motion is exhibited at page 721 -727 of Vol. II of the records. The new counsel also filed a motion seeking the Order of the lower court to allow the Appellant (Defendant) to reopen its case which had been closed on 12/4/2013 in the absence of the Defendants.</p> <p>On the next adjourned date, 15/5/2013, the Respondent's counsel did not object to the Notice of change of counsel but opposed the Appellant's Motion to reopen its case. The court adjourned to 12/6/2013 for the hearing of the motion, page 739 - 740 of Vol. II the record shows all these facts. The Appellant's counter-affidavit dated 5/6/2013 was supported by exhibits and written address, which can be seen at page 743 - 760 of Vol. II of the records.</p> <p>On 12/6/2013, the lower court heard the motions of counsel and adjourned to 17/6/2013. On 17/6/2013, the court received the counter affidavit of the Respondents to the Appellants motion, and then the court delivered its ruling wherein the court dismissed the Application of the Appellants. The ruling is contained at 1021 - 1023 of Vol. Ill of the records of appeal. Parties thereafter adopted their final written addresses and the court adjourned for judgment. The final judgment of the lower court delivered on 27/06/2013 is contained at page 1074 -1137 of Vol. Ill of the records.</p> <p>From the records as summarized above, it is without doubt that the submission of the Appellants counsel that the Appellant was never served is incorrect and untrue. The Respondent informed the Appellant's counsel who abandoned the case and upon receipt of that counsel's letter that they no longer represent the Appellant, the Respondent directed the letters of Notice to the Appellant. Despite all these, the Appellant failed to show up in court until it was apparently too late for them to do so.</p> <p>It is trite that the court is a place where serious businesses are conducted and those who have business in the court must take it with all sense of seriousness, respect and reverence. I must state that the attitude of the erstwhile counsel for the Appellant at the lower court who without notice abandoned the court is blameworthy and unbecoming of a responsible legal practitioner. The duty of a Counsel who has been briefed by a litigant and has accepted the brief is to present his client's case with utmost devotion, sincerity and honesty and where the counsel wishes to withdraw appearance from representing a client in court, his duty is to duly inform the court. See OGBORU &amp; ANOR Vs. UDUAGHAN &amp; ORS (2013) LPELR-20805(SC), CHUKWU &amp; ANOR Vs. INEC &amp; ORS (2014) LPELR-22221(SC) 52 and NGERE &amp; ANOR Vs. OKURUKET &amp; ORS (2014) LPELR-22883 (SC) 25. However, a litigant has a duty to be vigilant and diligent towards his case, it is not enough for a litigant to brief a counsel and then go to sleep. The cause of action affects the litigant more directly than the counsel and the Appellant herein should have been more than concerned in seeing that the case was diligently prosecuted. It is not enough for a litigant to entrust his case in the hands of Counsel and recline his seat and go to sleep.<br /> In the case of OKOCHA Vs. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held as follows and I quote:</p> <p>"The business of the Court must be conducted with expedition; and a counsel who was not in Court at the time his client's case was called could not blame anybody but himself, I also accept that it is wrong in principle to visit the sin of a counsel on his client but in the instant case both the client and his counsel were in sin and I do not see the justification to penalize the party that was in Court at the proper time to argue its case only because of such principle of not visiting counsel's sin on the litigant."</p> <p> See: also GOV BENUE STATE Vs. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 and NIGERIAN AGRICULTURAL &amp; COOPERATIVE BANK LTD Vs. MR. LEWECHI OZOEMELAM (2004) LPELR - 5955.<br /> Learned Counsel for the Appellant also argued that the appellant was denied fair hearing. In SUNKANMI ADEBESIN Vs. THE STATE (2014) LPELR-22694 (SC) 40 it was held as follows and I quote:</p> <p>"The general rule as provided by the Constitution is certainly trite that the principle of fair hearing is not negotiable. The question however, is whether the appellant was infact denied such right in the case at hand. If the answer is in the positive, the outcome of the entire proceeding would be vitiated and nullified."</p> <p>Can it therefore be said from the records of proceedings and the materials before the Court, which I have already summarized above that the Appellant in the instant case was denied fair hearing?, the answer is definitely in the negative. The Appellant who was given enough time to defend the case against it but abandoned its defense in court cannot claim denial of fair hearing, the Court cannot wait for a party until he is sufficiently pleased to appear in Court in the name of fair hearing. See MFA &amp; ORS Vs. INONGHA (2014) LPELR-22010 (SC) 26. where the Supreme Court per NGWUTA, JSC held on the principle of fair hearing as follows and I quote;</p> <p>"The process of fair hearing is a two-edged sword and it cuts both ways - appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the appellants could not substantiate their allegation of denial of fair hearing".</p> <p> I adopt the holding by my Lord Ngwuta JSC and hold that the Appellant in this appeal cannot allege denial of fair hearing, the lower Court was generous and lavish in accommodating the sluggish attitude of the appellant. The Appellant had ample time to defend its case but failed to do so. When opportunity is given to a party to defendant an action, and the party for some reasons decides to drag its feet, the Court has discharged its obligation to the party, and if the party fails to take advantage of the opportunity, the Court is not to blame; the sluggish party must bear the consequence. This issue is therefore resolved against the Appellant.</p> <p>ISSUES TWO AND THREE<br /> I shall take the arguments of the Appellant on issues 2 (two) and 3 (three) together. The argument of the Appellant under issue 2 (two) is that there was no basis to deem the evidence and testimony of the Respondents' Witness as unchallenged and that unchallenged evidence cannot be conclusive proof of a Plaintiff's case when the law specifically sets out conditions to be met before the Court can hold that the Plaintiff's case succeeds. He referred to the following cases: ABI Vs. C.B.N. [2013] 3 NWLR (Pt. 1286) 1 at 16, ONYIA Vs. ONYIA [2012] 3 NWLR (Pt. 1286) 182 at 184, SLJUADE V. OYEWOLE [2012] 11 NWLR (Pt. 1311) 280 at 288, UJOATUONU Vs. ANAMBRA STATE GOVT. [2010] 15 NWLR (Pt. 1217) 421 at 439-440,</p> <p>OMOREGBE Vs. LAWANI (1998) 3-4 SC 108 and CONSOLIDATED BREWERIES PLC Vs. AISOWIEREN [2002] FWLR (Pt. 116) 959 at 990; (2001) 15 NWLR (Pt. 736) 424 to submit that the Plaintiffs have a duty to prove their case and succeed on the strength of their case and cannot be allowed to rely on the weakness of the case of the Defendant. He argued that the case of the Respondents was not proved and accordingly should not be allowed to succeed, and that if the Plaintiff has not proved his case, evidence of rebuttal does not arise.<br /> Learned counsel further submitted that it is the role of the trial Court to make findings of facts based on the credibility of the witness who testified and the probability of their story, and to properly evaluate the totality of evidence before coming to a decision to believe or disbelieve a witness or piece of evidence in the just determination of the case. He referred to LAYINKE &amp; ANOR Vs. MAKINDE &amp; ORS [2002] 10 NWLR (Pt. 775) 358 at 375; ATANDA Vs. AJANI [1989] 3 NWLR (Pt. 111) 511 at 524 and ARABAMBI Vs. ADVANCE BEVERAGES IND. LTD [2005] 19 NWLR (Pt. 959) 1 at 8.</p> <p> Learned counsel for the Appellant argued that the issue before the trial Court was highly contentious and the case was not undefended, and the refusal of the lower Court to re-open the case of the Defense to be heard on the merits is a fundamental error that led to substantial injustice in the determination of the suit. He postulated that the justice of the case demands that the matter be sent back to the trial Court for hearing on the merit. He referred to GAM BO Vs. IKECHUKWU [2011] 17 NWLR (Pt. 1277) 561 at 564 and H.B. (NIG.) PLC V. LODIGIANI (NIG) LTD [2010] 14 NWLR (Pt. 1213) 330 at 336. Learned counsel further submitted that no hearing notice was issued and served on the Defendant/Appellant or on the Counsel for the Defendant on record as at the date the case of the Defendant was closed. He therefore urged this Court to allow the appeal.</p> <p> On issue number three Learned counsel for the Appellant contended that the basis of the Judgment of the court below for the sum of N433, 891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo) in favor of the Plaintiffs/Respondents was based on the erroneous conclusion that the Plaintiffs/Respondents engaged the services of their accountant who reviewed and analyzed the transaction, calculated the figure and arrived at the sum as the amount overcharged by the Defendant/Appellant. He contended further that the process is flawed and there was no expert opinion received during the course of trial to justify the claimed figures, and that the evidence of the Plaintiffs' witness amounts to hearsay and his report was not duly stamped, the lower Court therefore ought not to have acted upon it.</p> <p> Learned counsel submitted that the trial Court misdirected itself when it awarded the said sum of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo because the sum was arrived at based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. He submitted further that the Court below misdirected itself when it awarded 21% of Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, Thirty Three Kobo as prejudgment sum from December 2007 till judgment was given, and also awarded Five Million Naira as damages.<br /> Learned Counsel urged this Court to allow this appeal, set aside the judgment of the Court below and the orders made pursuant to the said judgment, and to dismiss the case of the Respondents. Alternatively, learned counsel urged this Court to make an order remitting this case back to the Federal High Court, Lagos division for full trial on the merits before another judge.</p> <p> On issue number two, learned Counsel for the Respondents submitted that Exhibits P3A1 - P3A29 were admitted in evidence before the trial Court as documentary evidence, and that the lower Court in no way misdirected itself in relying on the submissions and evidence of the Respondents in the absence of the Appellant. He referred to C.D.C. NIG. LTD Vs. SCOA NIG.LTD [2007] 30 WRN 81 SC at 93, and OLALOMIIND. LTD Vs. NIDB LTD [2009] 16 WRN (Pt. 1167) 266 SC at 277, Counsel submitted that the 32 exhibits which were tendered by the Respondents witness, Mr. Daniel Isikhumen, the Assistant Manager, Administration and Operation (Liaison Office) of the 1st Respondent Company were all admitted by the Court and neither the Appellant nor its counsel attended the trial proceedings to challenge the evidence laid before the Court despite being issued several hearing notices and letters informing them of the dates and.<br /> Learned counsel submitted that the established evidence clearly settles this issue in favor of the Respondents as the evidence was unchallenged and not contradicted, and ought to be accepted by the Court. He referred to P.C.O OLUDAMILOLA Vs. THE STATE [2010] 2-3 SC (Pt. 111) 194 at 209, ADIM Vs. NBC LTD [2010] 9 NWLR (Pt. 1200) 543 SC at 549, AKINOLA Vs. UNIVERSITY OF ILORIN [2004] 35 WRN 79 CA at 89 and OGBE Vs. ASADE [2009] 18 NWLR (Pt. 1172) 106 SC at 112 and submitted that the Appellant had a duty to rebut the evidence at trial by cross-examining the witness yet they failed to do so.</p> <p> Learned counsel further contended that the case of ABI Vs. CBN [2013] 3 NWLR (Pt. 1286) 1 at 16 relied on by the Appellant was quoted out of context, and that the Respondents/Plaintiffs succeeded on the strength of their case. Counsel further contended that the submissions of the Appellant that the case of the Respondents was based on a flawed report which was arrived at through a flawed process has no legal or factual basis, and that there was no evidence of such at the Court below and such conclusion cannot in be sustained.</p> <p> Learned Counsel for the Respondents submitted that pleadings cannot constitute or replace evidence and a Defendant who does not give evidence in support of his pleadings is deemed to have abandoned same and that where a party fails to give evidence in support of his pleadings or in challenge of the plaintiff's, he is deemed to have accepted the facts adduced by the plaintiff notwithstanding the general traverse. He referred to FEDERAL CAPITAL DEVELOPMENT AUTHORITY V. ALHAJI MUSA NAIBI [1990] 5 SC (Pt. II) 79, NASL &amp; ANOR Vs. UBA &amp; ANOR (2008) 8 SCM 189, FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR &amp; ANOR (1993) 12 SCNJ 82, THE ADMINISTRATOR/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA Vs. SAMUEL DAVID EKE-SPIFF [2009] 2-3 SC (Pt. II) 93 and ALHAJI USMAN BUA Vs. BASHIRU DAUDA [2003] 13 NWLR (Pt. 838) 657 at 672, 6 SC (Pt. 11) at 1203. Learned counsel further relied on U.O.C. B.N LTD Vs. OKONKWO [2009] 5 NWLR (Pt. 1134) 401 at 404 and ANPP Vs. INEC [2010] 13 NWLR (Pt. 1212] 549 at 561 and urged this Court to hold that the unchallenged evidence of the Respondents were substantial and cogent enough to prove the averments in the statement of claim.</p> <p> Learned counsel contended that there was no evidence that the Accountant's report was arrived at through a flawed process as submitted by the Appellant in its brief, and that there is no law that prescribes that a reports by accountants on overcharging of interest must be duly stamped for it to be admissible contrary to the submissions of the Appellant in Paragraph 4.3.1 at page 14 of the Appellants brief of argument. Learned counsel further contended that the Appellant's reliance on M.H. (NIG) LTD &amp; ANOR Vs. OKEFUNA [2011] 6 NWLR (Pt. 1244) 514 at 533 to submit that it is general practice that credit facility obtained from a commercial institution will come with interests chargeable on the facility lacks merit as there was no evidence led in the Court below of such established practice or custom. Learned counsel cited STANDARD TRUST BANK LTD Vs. INTERDRILL NIG LTD [2007] All FWLR (Pt. 366) 756, to submit that a general custom or practice cannot override the express terms of the contract as agreed and contained in the facility letter which is a document that both parties signed. He further submitted that a contract is binding and enforceable and should be treated with sanctity, and that the Court would not make a contract for the parties by reading into a contract what was not intended by the parties. He referred to BABA Vs. NIGERIA CIVIL AVIATION TRADING CENTER [1991] 5 NWLR (Pt. 192) 338 and BALIOL NIGERIA LTD Vs. NAVCON NIGERIA LTD [2010] 16 NWLR (Pt. 1220) at 630.</p> <p> Learned counsel submitted that the Appellant was in breach of contract by wrongfully importing a non-existent pricing term into the contract and by further over charging and wrongfully deducting money from the Respondent account. He referred to ZAKHEM CONSTRUCTION (NIG) LTD Vs. NNEJI [2002] 5 NWLR (Pt. 759) 55 and N.M.A. INC (2010) 4 NWLR (Pt. 1185) 813. Learned counsel submitted further that the basis for the award of interest by the Court below is that the Appellant kept the Respondents out of their money and had the use of it to itself for which it ought to compensate the Respondents accordingly. He referred to SKYMIT MOTORS LTD Vs. U.B.A. PLC [2012] 10 NWLR (Pt. 1309) 491; DIAMOND BANK LIMITED Vs. P.I.C. LTD [2009] 18 NWLR (Pt. 1172) 97 to submit that the Respondents proved their case and were therefore entitled to the award of interest on the Judgment sum at the rate of 21% from December 2007 till judgment, and 6% from the date of judgment until it is finally liquidated. Learned counsel urged this Court to find that the lower Court did not misdirect itself in awarding the sum of N433,891,342.33 (Thirty Three Million, Eight Hundred and Ninety one Thousand, Three Hundred and Forty Two Naira, and Thirty Three Kobo) as money deducted from the Respondents' account and interest on the judgment sum at the rate of 21% from December 2007 till judgment and 6% from the date of judgment until it is finally liquidated, and that the appeal be dismissed.</p> <p> In Reply, Learned counsel for the Appellant referred to GBADAMOSIV. DAIRO [2007] 3 NWLR (Pt. 1021) 282 at 306 - 307 Para. H - B to further submit that the Appellant did not fail to cross examine the Plaintiffs/Respondents' witness as submitted by the Respondents, but rather, the Appellant had no such opportunity to cross-examine the said witness or to lead evidence due to unjust refusal of the Court below to reopen the case of the Appellant which amounts to injustice and complete lack of fair hearing. He submitted that it was the Counsel on record for the Appellant who failed to attend Court. Learned counsel urged this Court to discountenance the argument and cases cited in the Respondent's brief as they are not relevant to this case and an attempt to excuse, explain, and justify the miscarriage of justice at the lower Court in this case. He cited AUDU V. FRN [2013]5 NWLR (Pt. 1348) 397 at 410 - 411,to state that even where an allegation of delay of justice is sustained, it cannot be equated to an outright denial of justice, and/or deliberate miscarriage of justice. Again, learned Counsel urged this Court to hold that the proceedings and the Judgment of the lower Court in this suit is in breach of the rules of fair hearing and as such a nullity and same be accordingly struck out. He further urged this Court to allow the appeal, set aside the judgment of the lower Court and all the orders made pursuant to the said judgment, and dismiss the case of the Respondents, or alternatively make an order remitting this case back to the Federal High Court, Lagos Division for full trial on the merits before another judge.<br /> The instant issue borders principally on the question as to whether, notwithstanding the fact that the Respondents failed to lead evidence or even cross-examine the Respondent's witness, the Plaintiffs/Respondents prove their case before the lower to warrant the entry of judgment by the lower court.</p> <p>Before proceeding further, it is instructive to note that in the instant case, the Appellant indeed filed its statement of defense in response to the Respondents' statement of claim. Therefore, it will not be correct in my view to hold that the suit was totally undefended. I believe that there is a dichotomy in instances where the suit as instituted by a Plaintiff will be deemed undefended and in other instances, as in the instant case, where the defendant, though entered appearance and properly filed his statement of claim but failed to take advantage of the ample opportunity provided by the court for him to either cross-examine the witness(s) called by the Plaintiff or ipso facto, lead evidence in rebuttal to the evidence led by the Plaintiff by calling his own witness and also tendering exhibits in support of his defense. In this latter category, where the defendant filed a statement of defence, the burden rests first on the Plaintiffs, which are the Respondents herein, to establish before the lower court that they are entitled to the claim(s) or relief(s) sought as per the statement of claim. It is settled principle of law in civil proceedings that a Plaintiff must succeed on the strength of his own case and not on the weakness of the defense. See: AKPORUE &amp; ANOR. Vs. OKEI &amp; 2 ORS. [1973] 12 S.C, NKADO Vs. OBIANO [1997] 5 NWLR (Pt.503) 31AKANDE Vs. ADISA &amp;ANOR. [2012] LPELR-7807 (SC) 59.<br /> Now, can it be said that the learned trial judge properly evaluated the evidence before him before reaching the conclusion that the Respondents are entitled to judgment as per their Statement of Claim. I must say that it is the function of a trial judge to evaluate evidence placed before him. In MBANEFO Vs. MOLOKWU &amp; ORS 2008 LPELR - 3696 (CA), My Lord and Learned Brother TSAMIYA, JCA said as follows:<br /> The function of a trial judge in the assessment and evaluation of evidence involves two functions. Firstly, the matter of assessment in order to determine material evidence to be placed on the imaginary scale and secondly the evaluation of the evidence in order to determine in which side the scale tilts. The duty of appraising evidence given at a trial is pre-eminently that of the court of trial that saw and heard the witnesses and it is also the right of the Court to ascribe values to such evidence...."<br /> The above decision of my learned brother remains the law and it is beyond dispute that this court shall not interfere with the findings of fact by the trial court where it is supported by evidence led before the court. Thus, this court will only disturb such findings of fact where it is perverse and/or is not based on the evidence generated at the trial by parties.</p> <p>In the instant appeal, and having regard to the resolution of issues one in favor of the Respondents, it is obvious that the Respondents' pleadings as per their Statement of Claim were accompanied by evidence led thereon vide an Amended Written Statement on Oath dated 22/02/2010 and An Additional Written Statement on Oath dated 25/09/2009.</p> <p>Section 133 of the Evidence Act, 2011 states:<br /> "(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, having regard to any presumption that may arise on the pleadings.<br /> (2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to prove is established, the burden lies on the other party against whom judgment would be given if no more evidence is adduced, and so on successively, until all the issues in the pleadings have been dealt with.<br /> (3) Where there are conflicting presumptions, the case is the same as if there were conflicting presumptions.<br /> Section 134 reads:<br /> "The burden of proof shall be discharged on the balance of probabilities in all civil proceeding."<br /> While it remains undisputed that the standard of proof required of the Respondents in the instant case, is that on the balance of probabilities, it is also obvious from the unambiguous provisions of Section 133(2) of the Act that the burden of proof shifts from and to each of the respective parties in establishing their claim and/or defense before the court. As earlier noted, the Plaintiff led evidence before the lower court, vide, two written statements on oath. At paragraph 9 of the Amended Statement on Oath, the Plaintiff's sole witness, Mr. Daniel Isikhuemen, the Assistant Manager, Administration and Operation (Lagos Liaison Office) of the 1st Respondent deposed as follows:<br /> "10. The Plaintiffs accounts listed in paragraph 8 above were over charged and deducted at various times by the Defendant<br /> 11. The Plaintiffs complained and made several representations regarding the irregular deductions on their accounts to the Defendant vide their letters of IS December2006and 18 January 2008 both of which are now shown to me and a copy of each attached hereto as Annexures 7 and 8 respectively.<br /> 12. The 4th Plaintiff gave specific bidding rate "to drawdown" for the facilities to the Defendant which the Defendant flagrantly disregarded without notifying the 4* Plaintiff. The Defendant admitted this fact in its letter 15th February 2007 which is now shown to me and a copy attached hereto as Annexure 9.<br /> 13.<br /> 14. Flowing from paragraph 12 and 13 above, the 1st and 2nd Plaintiffs are not responsible for any act done or bidding made by the Defendant in the absence of clear instructions or agreement to that effect.<br /> 15. The Defendant never resolved or reconciled the differences in the accounts and also failed to refund the excess interest of 2% admitted by it when it charged 19% instead of17% interest rate agreed.<br /> 16. The Defendant breached its contract with the Plaintiffs by over-charging their account, making improper deductions and importing certain pricing terms that were not part of the contract at any time.<br /> 17. When the Plaintiffs realized that the Defendant was unwilling to calculate and refund the sum deducted they engaged the services of their accountant who reviewed and analyzed the transactions, calculated the figures and arrived at a total sum of 4423,530,085.21 (Twenty Three Million, Five Hundred and Thirty Thousand, Eighty Five Naira, Twenty One Kobo) as the amount over charged and improperly deducted. A summary of the overcharges from January 2005 to December 2007 is attached hereto as marked as Annexure 22.<br /> 18. The Plaintiffs requested that the over charged amount stated in paragraph 17 above which covers the period between January 2005 and December 2006 be refunded to them. The 1st Plaintiff’s letter of January 2008 together with correct computation of charges ("scheduled") sent to the Defendant has already been shown to me and attached hereto as Annexure 8 in paragraph 12 above.<br /> 19. The Plaintiffs thereafter reviewed and analyzed the transactions for the period covering January to December 2007 and found that a sum of 443,368,201.83 (Three Million, Three Hundred and Sixty Eight Thousand, Two Hundred and One Naira Eighty three Kobo) was over charged. The Plaintiffs requested that the said sum be refunded to it vide its letter of 4 March 2008 together with its attached schedule which is now to me and a copy attached hereto as Annexure 23.<br /> 20. The Defendant shirked away from the main issue raised in all the Plaintiffs letters and admitted to refund just a total sum of 442,089,925.27 (Two Million Eighty Nine Thousand, Nine Hundred and Twenty Five Naira, Twenty Seven Kobo) which is significantly at variance with the correct over charged sum while purporting to have addressed the issues raised by the Plaintiff's letters. The Defendants letter of 20 May 2008 is now shown to me and a copy attached hereto as Annexure 24.<br /> 21. The Defendants claim about their adopting 360 days in the calculation of interest is baseless, unfounded and an afterthought to avoid liability as it actually used the 365 day Count Convention. The correct calculation schedule revealing this is already attached hereto Annexure 22.<br /> 22. The Bank's calculation of penal interests charged when the Plaintiffs' accounts exceeded the approved limit were exaggerated. The correct calculation schedule revealing this is now shown to me and a copy of the same attached hereto as Annexure 25.<br /> 23. The Defendant imported a non-existing pricing term into the facility letter of 21 February 2007 (Annexure 7) and which had no pricing terms on the basis of which the Defendant wrongfully deducted a total sum of 4410,361,257.12 (Ten Million, Three Hundred and Sixty One Thousand, Two Hundred and Fifty Seven Naira, Twelve Kobo). The conclusion schedule establishing this deducted amount is now shown to me and a copy of same attached hereto Annexure 26.<br /> 24. The overcharges and improper deductions to the Plaintiffs' account currently amount to the sum of N33,891,342.33 (Thirty Three Million Eight Hundred and Ninety One Thousand, Nine Hundred and Forty Two Naira, Thirty Three Kobo). The schedule showing a clear calculation of these improper charges and deductions is already attached hereto as Annexure 22 in paragraph 17 above.<br /> 25. The Plaintiffs have made every effort to recover the sum in paragraph 24 above peacefully and amicably but never got the co-operation of the Defendants.<br /> 26.<br /> 27.<br /> 28. The Defendant in its letter of 16 February 2009 denied most of our claims. The said letter of 16 February is now shown to me and a copy attached hereto as Annexure 28."</p> <p>The above evidence of the Respondents' sole witness was neither contradicted nor challenged by the Appellant. The implication therefore is that the Appellant is deemed to have admitted the statement of facts stated therein by the witness and this therefore requires no further proof by the Respondents. Nonetheless, the question remains whether the Respondents were indeed entitled to judgment as per the evidence before the court?<br /> The Respondents through their witness stated that there were overcharges and improper deductions in the Respondents' account which amount to the sum of M33,891,342.33 (Thirty Three Million Eight Hundred and Ninety One Thousand, Nine Hundred and Forty Two Naira, Thirty Three Kobo), the amount being claimed by them in the instant suit. See paragraph 24 of the Witness Statement on Oath reproduced above. Respondents tendered several exhibits, which were admitted by the lower court, but of great relevance here is Exhibit P3A26 and P3A27, which contains the computation of the overcharges and improper deduction done by the Respondents' Accountant.<br /> Now, Exhibit P326 at page 857 of the record shows the summary of interest charges (STWC interest rate) which the Respondents contends was not mentioned in the offer letter prepared by the Appellant and executed by both parties and the sum therein totalled N10,361,257.12 for the period 01/01/2007 to 31/12/2007, while Exhibit P327 is summary of overcharges for the period from 01/01/2005 to 31/12/2007 which the Respondents calculated to be N23,530,085.21, bringing outstanding sum of N33,891,342.33. There is no contrary evidence by the Appellant upon which the trial court will determine whether the sum alleged by the Respondents is not a true reflection of the sum overcharged. A fortiori, it is not the contention of the Appellant that the total sum arrived at by the Respondents is not as per the terms of the contract entered into by both parties; indeed the contention of the Appellant's counsel is that the sum so arrived at was based on a faulty computation using the wrong parameters contrary to the established trade practices in the banking system that commercial banks advance credit to business entities for profit, interest and charges do not come free of charge. There is no evidence before the lower court upon which the argument is predicated. I am unable to agree with the Appellant's counsel that the outstanding sum established by the Respondents was based on faulty computation without any evidence to the contrary. How the Respondents arrived at the total sum is clearly evident on the face of Exhibits P326 and P327.</p> <p>Meanwhile, Appellant's counsel argued that Exhibit P3A26 is documentary hearsay. It is settled law that only the maker of documentary evidence can tender it. The essence no doubt is to give the other side the opportunity to cross-examine the maker of the document as to the contents of the document being tendered. However, I am conscious of the settled position of the law that "it is relevance that determines the admissibility of a document”. The resounding words of my lord NIKI TOBI, JSC in OMEGA BANK NIG. PLC Vs. OBC LTD [2005] 8 NWLR (Pt. 928) 541 at 582 to 583, is apt in this regard. The Learned Jurist said as follows and I quote:</p> <p>Let me take the issue of non-maker of the document tendering it It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a court of law will not attach any probative value to the document and a document that a court that the court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence can be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker... After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document are two different things..."</p> <p> In the light of the foregoing, while I agree that the trial court rightly admitted Exhibit P3A26 and P3A27 having regard to the fact that it is relevant to the suit of the Respondents, the question remains whether the Exhibits indeed are deserving of ascription of any probative value. In the instant case, the Respondents' sole witness who was not the maker of the report tendered Exhibits P3A26 and P3A27. This fact was conceded by the Respondents' counsel at paragraph 4.43 (b) of his brief of argument where he noted that the exhibits, particularly Exhibit P3A26 were tendered by an employee of the 1st Respondent. No reason was given as to why the Accountant who prepared the report was not called as a witness, this lapse on the part of the Respondents has created lacuna in the value to be ascribed to the document. As NIKITOBI, JSC held in OMEGA BANK (supra), where as in the instant case, the maker of a document is not dead and it is not shown that so much expense would be incurred in calling him as a witness by the Plaintiffs, no probative value will be attached to the document so tendered and same is not worth more than a mere paper as clearly set out in the decision of the Supreme Court cited.</p> <p> The claim of the Respondent is no doubt erected on the contents of Exhibit P3A27, which obviously has no probative value, and where a claim is erected on shaky and porous pedestal, such claim is bound to collapse. Exhibit P3A27 is not a public document that can be admitted through any witness upon certification. The document herein is a private document, and therefore ought to be tendered by the maker. The Respondents' claim stands and falls on Exhibit P3A27. In reaching his conclusion that the Respondents were entitled to judgment, the learned trial judge at Page 1134, Vol. Ill of the records of appeal said as follows:</p> <p> "The court read the entire process and deliberately reproduced the address of learned counsel verbatim because the defendant failed, refused and/or neglected to defend this suit. Therefore the plaintiff’s evidence remains unchallenged. This is a breach of contract for which this Court believes damages will flow as the defendant owes the plaintiff a duty under the contract.</p> <p> This court must state that all the submission that is not backed by defence goes to no issue. So also a pleading that is not supported by evidence is deemed abandoned. In sum this Court accepts the unchallenged and uncontroverted evidence of the plaintiff that is capable of believe (sic) and hereby enter judgment for the plaintiff against the defendant as per the Plaintiffs claim in paragraph 28 of the Amended Statement of Claim before the Court to wit..."<br /> It is obvious from the above-reproduced judgment of the lower Court that the learned trial Judge did not conduct proper assessment of evidence led before him by the plaintiffs. This is against the background that, even where a Defendant fails to take ample opportunity offered to him by the court to lead evidence or contradict the evidence led by the Plaintiffs as in the instant appeal, the plaintiffs, that is, the Respondents in the instant appeal, have the duty to establish legitimate claim to the reliefs sought. With all due respect to the Learned trial Judge, there is apparent indication of misdirection on the part of the lower Court, when the Court failed to evaluate the evidence led by the plaintiffs/Respondents before reaching a decision. In EKONG Vs. OTOP &amp; Ors. [2014] 11 NWLR (Pt. 1419) 549 at 573, OKORO JSC, said as follows and I quote.<br /> "It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial court. Where the trial court fails to examine documents tendered before it, an appellate court is in a good position to evaluate such exhibits...."<br /> Having examined Exhibit P3A27 and found that the maker was not called as a witness, no probative value can be ascribed to the exhibit, I am of the view that the lower Court erred when it held that the Respondents were entitled to judgment. Issues two and three are resolved in favor of the Appellant. Notwithstanding the resolution of issue one in favour of the Respondent, this appeal nonetheless succeeds and it is accordingly allowed. The Judgment of Buba J., of the Federal High Court, delivered on 28th June 2013 is hereby set-aside.<br /> Parties in this appeal shall bear their respective costs.</p> <p>SAMUEL CHUKWUDUMEBI OSEJI I had the privilege of reading the draft copy of the judgment just delivered by my learned brother TIJJANI ABUBAKAR JCA.<br /> I agree with his reasoning and conclusion that the appeal be allowed in part.<br /> I also will and hereby allow the appeal in part. I abide by the consequential orders made in the lead judgment including order as to costs.</p> <p>Abimbola Osarugue Obaseki-Adeiumo, JCA My learned brother, TIJJANI ABUBAKAR, JCA obliged me with an advance copy of the judgment which he just delivered. I agree with his reasoning and conclusion reached therein. In the same terms as the leading judgment, I find the appeal of the Appellant to be meritorious and same is hereby allowed. I abide by the order as to cost made therein.</p> </div> </div> <p><strong>Counsel</strong></p> <p>Ikenna Onwusika with Edward Porbeni for the Appellant<br /> J. 0. Omisade with A. Abbass, D. Dibi for the Respondent</p></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:54 +0000 Anonymous 328 at http://nigerialii.org Armah Esq v Chief Horsfall (L 995 of 2014) [2016] NGCA 26 (30 May 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/26 <span class="field field--name-title field--type-string field--label-hidden">Armah Esq v Chief Horsfall (L 995 of 2014) [2016] NGCA 26 (30 May 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/80" hreflang="x-default">CL, Corporate Veil, Separate Legal Personality</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The appellant contended that the respondent, contrary to the decision of the lower court, be held responsible for the debts of a company. The appellant contended that the company was a mere façade, as the respondent was both a shareholder and subscriber of the company. The contract of service between the parties was not in writing. The court held that it is only when the claimant has proved the existence of the contract that the burden will shift to the defendant to prove his denial of its existence.</p> <p>The main issue was whether the defendant was liable to pay the debts of the company. <br />     <br /> In this case, the respondent did not go into the contract as an agent for the company. A company has no soul or body through which it can act, it can only do so through human agents; but which acts they cannot be personally held liable for. The court said that the effect of incorporation and registration of a company, firm etc is to confer on it legal entity as a person separate and distinct from its members. It is a legal person with a personality of its own.</p> <p>The court went on to state that the appellant failed to show that the findings of the lower court were perverse and not based on the evidence adduced. This is why the appeal failed.<br />  </p> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <div> </div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong> <p>?</p> </div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>EMMANUEL ARMAH ESQ</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>CHIEF ALBERT KORUBO HORSFALL</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (Delivered By CHINWE EUGENIA IYIZOBA, JCA)</strong><br /> This is an appeal against the Judgment of Femi-Adeniyi J of the High Court of Lagos State, Lagos Judicial Division in Suit No LD/1053/2007 delivered on the 29th day of January 2014. The Appellant as Claimant instituted this suit against the Respondent as Defendant on 22/08/07 claiming as follows:</p> <p>"1. The sum of N650,000,000.00 (Six Hundred and Fifty Million Naira Only) being professional fees for legal services rendered to you at your request sometime in the year 2003 in Lagos within jurisdiction of this Honourable Court and in respect of which a bill of charges specifying work done has been sent to you and to which you failed, omitted or refused to be taxed in the manner and within the period stipulated in the Legal Practitioner's Act and by so doing or failing to so act, you have admitted the indebtedness in the amount claimed above by the Claimant.<br /> 2.Interest on the above sum at the rate of 15% per annum from the date of the initial demand until the entire judgment is liquidated.<br /> 3.Cost of the action."</p> <p>The Appellant's case at the lower court is that instructions were given by the Respondent to Armah Law Chambers in 2003 to prepare a set of documents to carry into effect a joint venture/partnership transaction between the Respondent (Chief Horsefall) and a Spanish company COPINASA SA QUESTO. The transaction was to be carried on under the auspices of COPINASA NIGERIA LIMITED. Pursuant to those instructions four sets of Agreements were prepared, namely, An All-parties Agreement, Deed of Appointment of Horsefall and Co, Deed of Appointment of Chief Albert Korubo Horsefall as Special Consultant, a Power of Attorney authorizing Antonio Garia Lopez to raise N6.5BilIion naira or its equivalent in Euro currency. The Appellant claimed that these documents were prepared and engrossed and sent to the law office of Chief Albert Korubo Horsefall for execution by the Respondent. A claim was thereafter made by the Appellant for the legal services rendered. This prompted an exchange of correspondence, whereby the Respondent disclaimed liability for the fees, saying the instructions were given to Mrs Armah personally as part of the retainer arrangement he had with her.<br />  <br /> The Respondent’s case is that he did not at any time engage the Appellant or his chambers to handle any legal matter for him; that he placed the Appellant’s wife on a retainership in her personal capacity for his confidential matters because of their close family relationship and paid her promptly for services rendered including the service which forms the Appellant’s cause of action.<br /> In the midst of the dispute, Mrs Tiena died and the appellant consequently reasserted the claims of his Law office to the fees outstanding for the work done.</p> <p>When the matter could not be resolved amicably, the Appellant instituted this action under the Summary Procedure Rules and claimed as set out above. The Respondent opposed the application, filing in response a Counter-Affidavit and Statement of Defence. The learned trial judge, Ishola J ruled that the defence was a sham and entered judgement for the Appellant. The Respondent appealed against the said judgement in Appeal No CA/L/168/2010. The appeal was allowed by this court on 02/06/11 and leave was granted to the Respondent to defend the suit. The court also ordered that the matter be tried before another Judge. The suit was consequently reassigned to Femi-Adeniyi J who proceeded to try the matter on the merits. At the trial the Appellant testified in person and tendered 4 exhibits. The Respondent also testified in person and tendered 4 exhibits. The thrust of the Respondents defence to the appellant’s claims was hinged on the following facts viz:</p> <p>(i) That the Respondent had no solicitor/client relationship with the Appellant given the fact that the Respondent engaged and /or contracted Mrs. Tiena Armah and not the Appellant to handle personal legal matters for which she was duly paid.</p> <p>(ii) The proposed joint venture between Copinasa Nigeria Limited and some Spanish Corporate interests as well as the road construction contract sought to be secured from the Rivers State government never materialized.</p> <p>(iii) That legal services relating to the subject matter of this case was required for the benefit of Copinasa Nigeria Limited and not the Defendant herein.</p> <p>At the close of trial the parties adopted their final written addresses. The learned trial judge delivered judgment on 29/01/14 dismissing the Appellant's claims on the ground that there was no evidence to establish a solicitor-client relationship between the Appellant and the Respondent. His Lordship further held that Mrs. Tiena Armah had known and accepted from the onset that Copinasa Nigeria Ltd was to pay for the services rendered and therefore the Respondent could not be held liable for the fees.</p> <p>The Appellant, dissatisfied with the judgment appealed against it by Notice of Appeal filed on 21/3/14 with four grounds of appeal. The Appellant's brief was settled by Seyi Sowemimo SAN and out of the four grounds of appeal; he formulated two issues for determination as follows:<br /> i.    Whether on the totality of the evidence placed before the Court the defendant is not (sic) fact the contracting party having given instructions directly to the claimant<br /> ii.    Whether the claimant was at liberty to elect the party to sue in the circumstances of this case.<br />  <br /> The Respondent's brief of argument was settled by Victor Ogude Esq. and therein he also distilled two issues for determination as follows:</p> <p>1.Whether having regard to the facts and circumstances of this case the Appellant proved the existence of a solicitor /client relationship between himself and the Respondent as far as the transaction which gave rise to his claims is concerned.<br /> 2.Whether the findings of fact made by the lower court on the issues submitted before it for determination can be faulted or impeached.</p> <p>APPELLANT'S ARGUMENTS:<br /> On the first issue, learned Senior counsel for the Appellant submitted that the learned trial judge in coming to his decision did not fully and correctly appraise the evidence adduced by the parties, as the evidence before the court clearly showed that Copinasa Nig Ltd was a mere facade and that the Respondent, as the instructing party, was in reality the principal party in giving the instructions for the preparation of the Agreements produced by the Appellant. Learned Senior Counsel further submitted that Mrs Armah's expectation that Copinasa Nig Ltd would pay for the brief was as a result of the misleading impression given by the Respondent as she had never met any official of Copinasa Nigeria Ltd and had merely relied on the fact that the company was to be the arrow head of the transaction. He argued that the misapprehension of the facts was seized upon by the Respondent as an excuse to wriggle out of his obligation.</p> <p>Mr. Sowemimo submitted that in any given case where one person purports to transact business on behalf of another it is a question of fact whether the party transacts in reality as agent or principal. After examining various cases and authorities on the incidence of liability of principal and agent in contracts, learned senior counsel submitted that in certain circumstances even persons who purport to act as agents can be contractually liable if the circumstances reveal that they were in reality the contracting party. He further submitted that in coming to the view that Copinasa Nig Ltd is the party which bears sole responsibility' for the Claimant's fees, the learned trial judge overlooked certain crucial considerations such as, amongst many others the fact that the Respondent was the only person with whom the claimant's firm dealt with throughout the briefings and that the defendant had a special personal interest in the transaction which gave rise to the power of attorney to safeguard his interest Learned Senior Counsel submitted that there is no correspondence in which it was expressly stipulated at the outset that in giving his instructions, the defendant was merely acting as an agent. He submitted that in putting forward his defence, the defendant spoke from both sides of the mouth. In one breath, he claimed he was merely acting as agent for Copinasa Nigeria Limited whilst in another breath, he said that the work that was done was part of the retainer he had with Mrs. Tiena Armah and that she had been paid by him. Evidence of such payment was curiously never tendered, despite the fact that he bore the onus of proof.<br />  <br /> On the second issue (Whether the claimant was at liberty to elect the party to sue in the circumstances of this case), the learned senior advocate submitted that the trial judge placed heavy reliance on the declaration made by Mrs. Armah in her letter of 22nd November (Ex. C3)  that Copinasa Nigeria Ltd would be responsible for the fees payable on the brief handed to her firm. Mr. Sowemimo argued that the learned trial judge overlooked the fact that a contracting party who has dealt with an agent may in certain circumstances elect either to sue the agent or the principal especially in circumstances where it is revealed that the agent is in reality the contracting party. After again referring and quoting from decided cases and text books, counsel submitted that in the case of a disclosed principal, the third party has a right of election as against whom to proceed. He argued that this election comes after all the full facts are known and that a declaration at some point by Mrs. Tiena Armah that she intended to hold Copinasa Nigeria Ltd liable for her fees can not amount to an irrevocable election. He submitted that the true choice was made when Copinasa Nigeria Ltd failed to come forward to assume responsibility and a suit had been taken out against the Defendant, being the person who personally gave out the instructions and was the arrowhead of the joint venture transaction to be captured by the agreements that were prepared by the Claimant.</p> <p>RESPONDENTS ARGUMENTS:<br /> Victor Ogude Esq of counsel for the Respondent in his brief of argument on issue one whether a solicitor/client relationship existed between the parties herein, submitted that the Respondent did not at any time engage the Appellant as a legal practitioner to advise and prepare documents for the purpose of a joint venture project between Copinasa Nigeria Limited and some Spanish Corporate interests. Counsel submitted that the Respondent had in his statement of defence and witness deposition denied the existence of a Client/Attorney relationship between himself and the Appellant. Learned counsel submitted that the Respondent at the trial led evidence which was not challenged by the Appellant that the Respondent engaged the Appellant's wife Mrs. Tiena Armah to act for him and made it clear that he wanted nothing to do with the Appellant or his law firm. Counsel contended that it was clear from the evidence led that Copinasa Nigeria Limited was the instructing party and the recipient or beneficiary of the power of attorney and related legal services rendered by Mrs. Tiena Armah. Counsel further contended that the Respondent made it clear to Mrs. Armah that he would need to obtain the approval of the board of directors of Copinasa Nigeria Limited who was to be the beneficiary of the contract to instruct her if and only if the contract was awarded and the proposed joint venture with the foreign partners crystallized. Counsel submitted that the Respondent paid Mrs. Armah for the draft power of attorney which was the only document presented and stopped her from proceeding further when it became obvious that the contract would not crystallize. He further submitted that the Appellant by failing to file a reply to the statement of defence nor an additional witness statement coupled with his failure to cross - examine the Respondent on these material points accepted the testimony of the Respondent on these material facts. Counsel relied on the cases of Amadi v. Nwosu (1992) 5 NWLR (Pt 241) 273 and Daggash v. Bulama (2004) 14 NWLR (Pt 892) 144 ratio 42.<br />  <br /> Counsel submitted that from exhibit C3 a letter written by the Appellant's wife and tendered in evidence by the Appellant, it was clearly understood by the Appellant's wife with whom the Respondent interfaced in all discussions pertaining to the transaction that Copinasa Nigeria Limited was the party liable for the fees. Counsel submitted that the lower Court was justified in coming to the conclusion from the evidence led that no solicitor/client relationship existed between the Appellant and the Respondent.</p> <p>Counsel further submitted that the argument of the Appellant that the Respondent ought to be held liable on the ground that he was an agent of Copinasa and that the company was a fa?ade for the Respondent, should be discountenanced as it is a fresh issue that was never canvassed at the lower court neither was evidence adduced in support thereof nor leave sought from this court to raise it as a fresh issue. Counsel submitted that the contention is a radical departure from the case presented at the lower court where the Appellant contended that he contracted with the Respondent. Counsel relying on the case of Ajide v. Kelani (1985) 3 NWLR (Pt.12) page 248 submitted that the law frowns at such inconsistency.</p> <p>On issue two, whether the findings of fact made by the lower court on the issues submitted before it for determination can be faulted or impeached, learned counsel referred to the findings of the lower court that:</p> <p>(i) in the light of facts which this court has elicited from the documents, particularly exhibit C3, it is clear that Mrs. Tiena Armah knew from the onset that Copinasa Nig Ltd was to pay for the services and accepted the terms, and she had also concluded that it was Copinasa Nig Pic  who had given the instruction and was therefore liable to pay the outstanding fees'.</p> <p>(ii) I find and hold that based on the evidence before this court that there was no client/solicitor relationship between the Claimant and the defendant in respect of the Copinasa Nig Ltd transaction and consequently, that no contract existed between them'</p> <p>(iii) 1 therefore hold that the Claimant's claim for payment of professional fees against the Defendant is unfounded and baseless. Having failed to establish the existence of a contract between the two parties to this action, the Claimant cannot succeed on his other claims.</p> <p>Counsel submitted that the Appellant did not appeal against the specific finding of the lower court that Copinasa gave the instructions and was therefore liable to pay the outstanding fees. He further submitted that the appellant failed to prove that the findings of the trial court were perverse or not based on the evidence adduced before the lower court. Relying on the cases of O.S.LE.C V. Action Congress (2010) 19 NWLR (PT.126) PQ. 273 at 321-322, Olodo V. Josiah (2010) 18 NWLR (PT.122S) PQ. 653 at 676 and 671, he urged us not to interfere with the findings.</p> <p>RESOLUTION:<br /> The contention of the appellant is that the Respondent, contrary to the decision of the learned trial judge should be held responsible for the professional fees as he issued all the instructions and that the company Copinasa Nigeria Ltd was a mere fagade. The contract of service between the parties is not in writing. It can only be inferred from the facts pleaded and evidence led. From the evidence, both sides are in agreement that the interfacing was between the Respondent and Mrs Tiena Armah. It is therefore correct to assume that Mrs Armah is in the best position to say what she and the Respondent agreed on. She said so in Exhibit C3. In the judgment, the lower court at page 299 of the Record came to the following conclusion:</p> <p>"One of the principal players in the unfolding drama, Mrs. Tiena Armah then responded vide letter dated 22/11/2004-Exhibit C3.<br /> The following facts emerged therefrom:</p> <p>1.The legal services rendered by Armah Law Chambers was to Copinasa Nig. Ltd.<br /> 2.Mrs. Tiena Armah had undertaken professional services under the aegis of Armah Law Chambers.<br /> 3.The defendant had agreed that Armah Law Chambers handle the brief on Copinasa Nig. Ltd and the documents had been prepared by the Claimant.<br /> 4.Copinasa Nig. Ltd was to pay for the services.<br /> 5.Copinasa Nig. Ltd was liable to pay for the work done at its instance and its outstanding debt.</p> <p>The claimant had contended that the defendant is both a shareholder and subscriber of Copinasa Nig Ltd, the company appearing to be at the centre of this dispute. Does that then make the defendant liable to pay the debts of the Company which interfacing partner of Armah Law Chambers, Mrs. Tiena Armah, has so eloquently stated was the client and was liable to pay in Exhibit C3?<br /> The law is settled that a company such as Copinasa Nig Ltd has a separate legal personality from its promoters, subscribers and directors. See Salomon vs. Salomon (1879) AC 22. See also Section 37 Companies &amp; Allied Matters Act 2004 and Onuekwusi &amp; Ors vs. The Registered Trustees of the Christ Methodist Zion Church (2011) 6 NWLR 341 where the Supreme<br />  <br /> Court said that 'the effect of incorporation and registration of a company, firm etc is to confer on it legal entity as a person separate and distinct from its members. It is a legal person with personality of its own"</p> <p>Can the above analysis of the lower court be faulted in any way? I think not. The Appellant's contention that the Respondent should be held responsible for the fees because he issued the instruction is with respect misconceived. As rightly held by the learned trial judge a "company has no soul or body through which to act, it can only do so through human agents; but which acts they cannot be personally held liable for." The contention of the Appellant in this appeal that the company, Copinasa Nig Ltd was a mere facade is of no help to him. He did not make the allegation in his pleadings and the evidence led in the case did not disclose any such situation. In fact the evidence led leaves no doubt that the intention was that Copinasa would  pay. If the transaction had gone through as expected, N650 million naira legal fees (being 10% of six billion five hundred Naira expected to be brought in by the foreign partner) could be within the contemplation of the Company. Such an amount cannot possibly be within the contemplation of the parties if the Respondent was to pay the legal fees personally. Further the learned trial judge observed:</p> <p>"It is trite law that he who alleges must prove. In other words, he who alleges the affirmative of a fact has the burden of proving the existence of that fact. The burden of proving that a contract exists between the parties herein lies squarely on the claimant who has alleged it, See Agbaje vs Fashola (2008) 6 NWLR (Pt. 1082) 90 and S. 137 E.A.</p> <p>It is only where the claimant has proved the existence of the contract that the burden will shift to the defendant to prove his denial of its existence.</p> <p>However, in the light of the facts which the Court has elicited from the documents, particularly exhibit C3, it is clear that Mrs Tiena Armah knew from the onset that Copinasa Nig Ltd was to pay for the services and accepted the terms and she had also concluded that it was Copinasa Nig Pic who had given the instruction and was therefore liable to pay the outstanding fees. It is trite contract law principle that a stranger to a contract cannot sue or be sued on it even if the contract was made for his benefit and even if indeed the benefit did in fact accrue to him. See Makwe vs Nwukor (2001) 14 NWLR (pi.733) 356."</p> <p>As earlier stated there is no evidence that the company was a mere fagade. Mr. Sowemimo's submission that Mrs. Armah's expectation that Copinasa Nig Ltd would pay the fees was as a result of the misleading impression created by the Respondent as she had never met any official of Copinasa Nig Ltd is with respect misconceived. The Respondent is a shareholder and director of Copinasa. How can it be contended that Mrs. Armah never met any official of the company when she was actually discussing with one of the principal officers of the company? The fact that the understanding between Mrs. Armah and the Respondent is that instructions were being issued on behalf of Copinasa and that Copinasa would pay is not in doubt as clearly shown in Exhibit C3.</p> <p>Mr, Sowemimo's lengthy submission as to whether the Respondent transacted the business as agent for Copinasa is quite irrelevant in the present situation as it is all a matter of what was agreed by the parties. Where the agreement is not in writing as in the instant case, their intention can only be deduced from evidence presented. Exhibit C3 left no doubt as to the intention of the parties. At page 6 of the appellant's brief of argument, it was submitted that "the claimant acted on trust for the defendant as Mrs. Tiena Armah had a long standing professional relationship with the defendant and the claimants firm would not have proceeded to act for a total stranger in documenting a complex legal transaction without first demanding a deposit or an outright payment of his fees before handing over either draft or engrossed documents to the defendant". It is this long standing professional relationship between the Respondent and Mrs. Tiena Armah that should stamp the contents of Exhibit C3 as authentic. The agreement as indicated by Mrs. Armah in Exhibit C3 was that Copinasa would pay the legal fees and not the Respondent in his personal capacity. The Appellant's contention that a party to a transaction as in this case has a right to elect who to sue cannot apply in the circumstances of the present case. Where it is agreed that the transaction is with a limited liability company, a party cannot elect to sue any other entity than the company. An individual sued in place of the company will succeed in challenging the action. The cases of Idahosa vs. Oronsaue (1959) 4 FSC 166 and Basma v. Weeks 12 WACA 316 cited by learned senior counsel for the Appellant are inapposite. The Respondent herein did not go into the contract as an agent for the company. It was the company through the respondent a director of the company that entered into the contract and was to pay for the job done according to Mrs. Armah who interfaced with the Respondent. These facts were well amplified by Mrs. Armah in her letter Exhibit C3.<br />  <br /> With due respect, I am of the view that the Appellant has failed to show that the findings reached by the lower court were perverse or not based on the evidence adduced before the lower court. From the evidence adduced, there was no contract between the Appellant and the Respondent. Consequently there was no client/solicitor relationship between them such as would bring into play the provisions of the Legal Practitioner's Act.</p> <p>In the final result, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower court is affirmed. I make no order as to costs.</p> <p>SIDI PAUPA BAGE I had the honour of reading in draft, the lead judgment just delivered by my learned brother, Honourable Justice CHINWE EUGENIA IYIZOBA, JCA. I am in full agreement with the reasoning and conclusion contained therein. The appeal lacks merit, and is also dismissed by me. I abide by the order as to costs contained in the lead judgment.<br />  <br /><u><strong>JAMILU YAMMAMA TUKUR JCA</strong></u> I had the privilege of reading the lead judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA JCA and I agree with him that the appeal lacks merit.<br /> I also dismissed same and I abide by the consequential orders made in the judgment.</p> </div> </div> <p><strong>Counsel</strong></p> <p>O. S. SOWEMIMO SAN WITH C. R. COKER (MISS) AND D. M. IFARAJIMI (MISS) FOR THE APPELLANT,</p> <p>V. O. OGUDE ESQ. FOR THE RESPONDENT,</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-7cb736e3803f14da26128e019e860094dc7a9758535f71964b895cac03043826"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><div> <div> </div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong> <p>?</p> </div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>EMMANUEL ARMAH ESQ</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>CHIEF ALBERT KORUBO HORSFALL</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (Delivered By CHINWE EUGENIA IYIZOBA, JCA)</strong><br /> This is an appeal against the Judgment of Femi-Adeniyi J of the High Court of Lagos State, Lagos Judicial Division in Suit No LD/1053/2007 delivered on the 29th day of January 2014. The Appellant as Claimant instituted this suit against the Respondent as Defendant on 22/08/07 claiming as follows:</p> <p>"1. The sum of N650,000,000.00 (Six Hundred and Fifty Million Naira Only) being professional fees for legal services rendered to you at your request sometime in the year 2003 in Lagos within jurisdiction of this Honourable Court and in respect of which a bill of charges specifying work done has been sent to you and to which you failed, omitted or refused to be taxed in the manner and within the period stipulated in the Legal Practitioner's Act and by so doing or failing to so act, you have admitted the indebtedness in the amount claimed above by the Claimant.<br /> 2.Interest on the above sum at the rate of 15% per annum from the date of the initial demand until the entire judgment is liquidated.<br /> 3.Cost of the action."</p> <p>The Appellant's case at the lower court is that instructions were given by the Respondent to Armah Law Chambers in 2003 to prepare a set of documents to carry into effect a joint venture/partnership transaction between the Respondent (Chief Horsefall) and a Spanish company COPINASA SA QUESTO. The transaction was to be carried on under the auspices of COPINASA NIGERIA LIMITED. Pursuant to those instructions four sets of Agreements were prepared, namely, An All-parties Agreement, Deed of Appointment of Horsefall and Co, Deed of Appointment of Chief Albert Korubo Horsefall as Special Consultant, a Power of Attorney authorizing Antonio Garia Lopez to raise N6.5BilIion naira or its equivalent in Euro currency. The Appellant claimed that these documents were prepared and engrossed and sent to the law office of Chief Albert Korubo Horsefall for execution by the Respondent. A claim was thereafter made by the Appellant for the legal services rendered. This prompted an exchange of correspondence, whereby the Respondent disclaimed liability for the fees, saying the instructions were given to Mrs Armah personally as part of the retainer arrangement he had with her.<br />  <br /> The Respondent’s case is that he did not at any time engage the Appellant or his chambers to handle any legal matter for him; that he placed the Appellant’s wife on a retainership in her personal capacity for his confidential matters because of their close family relationship and paid her promptly for services rendered including the service which forms the Appellant’s cause of action.<br /> In the midst of the dispute, Mrs Tiena died and the appellant consequently reasserted the claims of his Law office to the fees outstanding for the work done.</p> <p>When the matter could not be resolved amicably, the Appellant instituted this action under the Summary Procedure Rules and claimed as set out above. The Respondent opposed the application, filing in response a Counter-Affidavit and Statement of Defence. The learned trial judge, Ishola J ruled that the defence was a sham and entered judgement for the Appellant. The Respondent appealed against the said judgement in Appeal No CA/L/168/2010. The appeal was allowed by this court on 02/06/11 and leave was granted to the Respondent to defend the suit. The court also ordered that the matter be tried before another Judge. The suit was consequently reassigned to Femi-Adeniyi J who proceeded to try the matter on the merits. At the trial the Appellant testified in person and tendered 4 exhibits. The Respondent also testified in person and tendered 4 exhibits. The thrust of the Respondents defence to the appellant’s claims was hinged on the following facts viz:</p> <p>(i) That the Respondent had no solicitor/client relationship with the Appellant given the fact that the Respondent engaged and /or contracted Mrs. Tiena Armah and not the Appellant to handle personal legal matters for which she was duly paid.</p> <p>(ii) The proposed joint venture between Copinasa Nigeria Limited and some Spanish Corporate interests as well as the road construction contract sought to be secured from the Rivers State government never materialized.</p> <p>(iii) That legal services relating to the subject matter of this case was required for the benefit of Copinasa Nigeria Limited and not the Defendant herein.</p> <p>At the close of trial the parties adopted their final written addresses. The learned trial judge delivered judgment on 29/01/14 dismissing the Appellant's claims on the ground that there was no evidence to establish a solicitor-client relationship between the Appellant and the Respondent. His Lordship further held that Mrs. Tiena Armah had known and accepted from the onset that Copinasa Nigeria Ltd was to pay for the services rendered and therefore the Respondent could not be held liable for the fees.</p> <p>The Appellant, dissatisfied with the judgment appealed against it by Notice of Appeal filed on 21/3/14 with four grounds of appeal. The Appellant's brief was settled by Seyi Sowemimo SAN and out of the four grounds of appeal; he formulated two issues for determination as follows:<br /> i.    Whether on the totality of the evidence placed before the Court the defendant is not (sic) fact the contracting party having given instructions directly to the claimant<br /> ii.    Whether the claimant was at liberty to elect the party to sue in the circumstances of this case.<br />  <br /> The Respondent's brief of argument was settled by Victor Ogude Esq. and therein he also distilled two issues for determination as follows:</p> <p>1.Whether having regard to the facts and circumstances of this case the Appellant proved the existence of a solicitor /client relationship between himself and the Respondent as far as the transaction which gave rise to his claims is concerned.<br /> 2.Whether the findings of fact made by the lower court on the issues submitted before it for determination can be faulted or impeached.</p> <p>APPELLANT'S ARGUMENTS:<br /> On the first issue, learned Senior counsel for the Appellant submitted that the learned trial judge in coming to his decision did not fully and correctly appraise the evidence adduced by the parties, as the evidence before the court clearly showed that Copinasa Nig Ltd was a mere facade and that the Respondent, as the instructing party, was in reality the principal party in giving the instructions for the preparation of the Agreements produced by the Appellant. Learned Senior Counsel further submitted that Mrs Armah's expectation that Copinasa Nig Ltd would pay for the brief was as a result of the misleading impression given by the Respondent as she had never met any official of Copinasa Nigeria Ltd and had merely relied on the fact that the company was to be the arrow head of the transaction. He argued that the misapprehension of the facts was seized upon by the Respondent as an excuse to wriggle out of his obligation.</p> <p>Mr. Sowemimo submitted that in any given case where one person purports to transact business on behalf of another it is a question of fact whether the party transacts in reality as agent or principal. After examining various cases and authorities on the incidence of liability of principal and agent in contracts, learned senior counsel submitted that in certain circumstances even persons who purport to act as agents can be contractually liable if the circumstances reveal that they were in reality the contracting party. He further submitted that in coming to the view that Copinasa Nig Ltd is the party which bears sole responsibility' for the Claimant's fees, the learned trial judge overlooked certain crucial considerations such as, amongst many others the fact that the Respondent was the only person with whom the claimant's firm dealt with throughout the briefings and that the defendant had a special personal interest in the transaction which gave rise to the power of attorney to safeguard his interest Learned Senior Counsel submitted that there is no correspondence in which it was expressly stipulated at the outset that in giving his instructions, the defendant was merely acting as an agent. He submitted that in putting forward his defence, the defendant spoke from both sides of the mouth. In one breath, he claimed he was merely acting as agent for Copinasa Nigeria Limited whilst in another breath, he said that the work that was done was part of the retainer he had with Mrs. Tiena Armah and that she had been paid by him. Evidence of such payment was curiously never tendered, despite the fact that he bore the onus of proof.<br />  <br /> On the second issue (Whether the claimant was at liberty to elect the party to sue in the circumstances of this case), the learned senior advocate submitted that the trial judge placed heavy reliance on the declaration made by Mrs. Armah in her letter of 22nd November (Ex. C3)  that Copinasa Nigeria Ltd would be responsible for the fees payable on the brief handed to her firm. Mr. Sowemimo argued that the learned trial judge overlooked the fact that a contracting party who has dealt with an agent may in certain circumstances elect either to sue the agent or the principal especially in circumstances where it is revealed that the agent is in reality the contracting party. After again referring and quoting from decided cases and text books, counsel submitted that in the case of a disclosed principal, the third party has a right of election as against whom to proceed. He argued that this election comes after all the full facts are known and that a declaration at some point by Mrs. Tiena Armah that she intended to hold Copinasa Nigeria Ltd liable for her fees can not amount to an irrevocable election. He submitted that the true choice was made when Copinasa Nigeria Ltd failed to come forward to assume responsibility and a suit had been taken out against the Defendant, being the person who personally gave out the instructions and was the arrowhead of the joint venture transaction to be captured by the agreements that were prepared by the Claimant.</p> <p>RESPONDENTS ARGUMENTS:<br /> Victor Ogude Esq of counsel for the Respondent in his brief of argument on issue one whether a solicitor/client relationship existed between the parties herein, submitted that the Respondent did not at any time engage the Appellant as a legal practitioner to advise and prepare documents for the purpose of a joint venture project between Copinasa Nigeria Limited and some Spanish Corporate interests. Counsel submitted that the Respondent had in his statement of defence and witness deposition denied the existence of a Client/Attorney relationship between himself and the Appellant. Learned counsel submitted that the Respondent at the trial led evidence which was not challenged by the Appellant that the Respondent engaged the Appellant's wife Mrs. Tiena Armah to act for him and made it clear that he wanted nothing to do with the Appellant or his law firm. Counsel contended that it was clear from the evidence led that Copinasa Nigeria Limited was the instructing party and the recipient or beneficiary of the power of attorney and related legal services rendered by Mrs. Tiena Armah. Counsel further contended that the Respondent made it clear to Mrs. Armah that he would need to obtain the approval of the board of directors of Copinasa Nigeria Limited who was to be the beneficiary of the contract to instruct her if and only if the contract was awarded and the proposed joint venture with the foreign partners crystallized. Counsel submitted that the Respondent paid Mrs. Armah for the draft power of attorney which was the only document presented and stopped her from proceeding further when it became obvious that the contract would not crystallize. He further submitted that the Appellant by failing to file a reply to the statement of defence nor an additional witness statement coupled with his failure to cross - examine the Respondent on these material points accepted the testimony of the Respondent on these material facts. Counsel relied on the cases of Amadi v. Nwosu (1992) 5 NWLR (Pt 241) 273 and Daggash v. Bulama (2004) 14 NWLR (Pt 892) 144 ratio 42.<br />  <br /> Counsel submitted that from exhibit C3 a letter written by the Appellant's wife and tendered in evidence by the Appellant, it was clearly understood by the Appellant's wife with whom the Respondent interfaced in all discussions pertaining to the transaction that Copinasa Nigeria Limited was the party liable for the fees. Counsel submitted that the lower Court was justified in coming to the conclusion from the evidence led that no solicitor/client relationship existed between the Appellant and the Respondent.</p> <p>Counsel further submitted that the argument of the Appellant that the Respondent ought to be held liable on the ground that he was an agent of Copinasa and that the company was a fa?ade for the Respondent, should be discountenanced as it is a fresh issue that was never canvassed at the lower court neither was evidence adduced in support thereof nor leave sought from this court to raise it as a fresh issue. Counsel submitted that the contention is a radical departure from the case presented at the lower court where the Appellant contended that he contracted with the Respondent. Counsel relying on the case of Ajide v. Kelani (1985) 3 NWLR (Pt.12) page 248 submitted that the law frowns at such inconsistency.</p> <p>On issue two, whether the findings of fact made by the lower court on the issues submitted before it for determination can be faulted or impeached, learned counsel referred to the findings of the lower court that:</p> <p>(i) in the light of facts which this court has elicited from the documents, particularly exhibit C3, it is clear that Mrs. Tiena Armah knew from the onset that Copinasa Nig Ltd was to pay for the services and accepted the terms, and she had also concluded that it was Copinasa Nig Pic  who had given the instruction and was therefore liable to pay the outstanding fees'.</p> <p>(ii) I find and hold that based on the evidence before this court that there was no client/solicitor relationship between the Claimant and the defendant in respect of the Copinasa Nig Ltd transaction and consequently, that no contract existed between them'</p> <p>(iii) 1 therefore hold that the Claimant's claim for payment of professional fees against the Defendant is unfounded and baseless. Having failed to establish the existence of a contract between the two parties to this action, the Claimant cannot succeed on his other claims.</p> <p>Counsel submitted that the Appellant did not appeal against the specific finding of the lower court that Copinasa gave the instructions and was therefore liable to pay the outstanding fees. He further submitted that the appellant failed to prove that the findings of the trial court were perverse or not based on the evidence adduced before the lower court. Relying on the cases of O.S.LE.C V. Action Congress (2010) 19 NWLR (PT.126) PQ. 273 at 321-322, Olodo V. Josiah (2010) 18 NWLR (PT.122S) PQ. 653 at 676 and 671, he urged us not to interfere with the findings.</p> <p>RESOLUTION:<br /> The contention of the appellant is that the Respondent, contrary to the decision of the learned trial judge should be held responsible for the professional fees as he issued all the instructions and that the company Copinasa Nigeria Ltd was a mere fagade. The contract of service between the parties is not in writing. It can only be inferred from the facts pleaded and evidence led. From the evidence, both sides are in agreement that the interfacing was between the Respondent and Mrs Tiena Armah. It is therefore correct to assume that Mrs Armah is in the best position to say what she and the Respondent agreed on. She said so in Exhibit C3. In the judgment, the lower court at page 299 of the Record came to the following conclusion:</p> <p>"One of the principal players in the unfolding drama, Mrs. Tiena Armah then responded vide letter dated 22/11/2004-Exhibit C3.<br /> The following facts emerged therefrom:</p> <p>1.The legal services rendered by Armah Law Chambers was to Copinasa Nig. Ltd.<br /> 2.Mrs. Tiena Armah had undertaken professional services under the aegis of Armah Law Chambers.<br /> 3.The defendant had agreed that Armah Law Chambers handle the brief on Copinasa Nig. Ltd and the documents had been prepared by the Claimant.<br /> 4.Copinasa Nig. Ltd was to pay for the services.<br /> 5.Copinasa Nig. Ltd was liable to pay for the work done at its instance and its outstanding debt.</p> <p>The claimant had contended that the defendant is both a shareholder and subscriber of Copinasa Nig Ltd, the company appearing to be at the centre of this dispute. Does that then make the defendant liable to pay the debts of the Company which interfacing partner of Armah Law Chambers, Mrs. Tiena Armah, has so eloquently stated was the client and was liable to pay in Exhibit C3?<br /> The law is settled that a company such as Copinasa Nig Ltd has a separate legal personality from its promoters, subscribers and directors. See Salomon vs. Salomon (1879) AC 22. See also Section 37 Companies &amp; Allied Matters Act 2004 and Onuekwusi &amp; Ors vs. The Registered Trustees of the Christ Methodist Zion Church (2011) 6 NWLR 341 where the Supreme<br />  <br /> Court said that 'the effect of incorporation and registration of a company, firm etc is to confer on it legal entity as a person separate and distinct from its members. It is a legal person with personality of its own"</p> <p>Can the above analysis of the lower court be faulted in any way? I think not. The Appellant's contention that the Respondent should be held responsible for the fees because he issued the instruction is with respect misconceived. As rightly held by the learned trial judge a "company has no soul or body through which to act, it can only do so through human agents; but which acts they cannot be personally held liable for." The contention of the Appellant in this appeal that the company, Copinasa Nig Ltd was a mere facade is of no help to him. He did not make the allegation in his pleadings and the evidence led in the case did not disclose any such situation. In fact the evidence led leaves no doubt that the intention was that Copinasa would  pay. If the transaction had gone through as expected, N650 million naira legal fees (being 10% of six billion five hundred Naira expected to be brought in by the foreign partner) could be within the contemplation of the Company. Such an amount cannot possibly be within the contemplation of the parties if the Respondent was to pay the legal fees personally. Further the learned trial judge observed:</p> <p>"It is trite law that he who alleges must prove. In other words, he who alleges the affirmative of a fact has the burden of proving the existence of that fact. The burden of proving that a contract exists between the parties herein lies squarely on the claimant who has alleged it, See Agbaje vs Fashola (2008) 6 NWLR (Pt. 1082) 90 and S. 137 E.A.</p> <p>It is only where the claimant has proved the existence of the contract that the burden will shift to the defendant to prove his denial of its existence.</p> <p>However, in the light of the facts which the Court has elicited from the documents, particularly exhibit C3, it is clear that Mrs Tiena Armah knew from the onset that Copinasa Nig Ltd was to pay for the services and accepted the terms and she had also concluded that it was Copinasa Nig Pic who had given the instruction and was therefore liable to pay the outstanding fees. It is trite contract law principle that a stranger to a contract cannot sue or be sued on it even if the contract was made for his benefit and even if indeed the benefit did in fact accrue to him. See Makwe vs Nwukor (2001) 14 NWLR (pi.733) 356."</p> <p>As earlier stated there is no evidence that the company was a mere fagade. Mr. Sowemimo's submission that Mrs. Armah's expectation that Copinasa Nig Ltd would pay the fees was as a result of the misleading impression created by the Respondent as she had never met any official of Copinasa Nig Ltd is with respect misconceived. The Respondent is a shareholder and director of Copinasa. How can it be contended that Mrs. Armah never met any official of the company when she was actually discussing with one of the principal officers of the company? The fact that the understanding between Mrs. Armah and the Respondent is that instructions were being issued on behalf of Copinasa and that Copinasa would pay is not in doubt as clearly shown in Exhibit C3.</p> <p>Mr, Sowemimo's lengthy submission as to whether the Respondent transacted the business as agent for Copinasa is quite irrelevant in the present situation as it is all a matter of what was agreed by the parties. Where the agreement is not in writing as in the instant case, their intention can only be deduced from evidence presented. Exhibit C3 left no doubt as to the intention of the parties. At page 6 of the appellant's brief of argument, it was submitted that "the claimant acted on trust for the defendant as Mrs. Tiena Armah had a long standing professional relationship with the defendant and the claimants firm would not have proceeded to act for a total stranger in documenting a complex legal transaction without first demanding a deposit or an outright payment of his fees before handing over either draft or engrossed documents to the defendant". It is this long standing professional relationship between the Respondent and Mrs. Tiena Armah that should stamp the contents of Exhibit C3 as authentic. The agreement as indicated by Mrs. Armah in Exhibit C3 was that Copinasa would pay the legal fees and not the Respondent in his personal capacity. The Appellant's contention that a party to a transaction as in this case has a right to elect who to sue cannot apply in the circumstances of the present case. Where it is agreed that the transaction is with a limited liability company, a party cannot elect to sue any other entity than the company. An individual sued in place of the company will succeed in challenging the action. The cases of Idahosa vs. Oronsaue (1959) 4 FSC 166 and Basma v. Weeks 12 WACA 316 cited by learned senior counsel for the Appellant are inapposite. The Respondent herein did not go into the contract as an agent for the company. It was the company through the respondent a director of the company that entered into the contract and was to pay for the job done according to Mrs. Armah who interfaced with the Respondent. These facts were well amplified by Mrs. Armah in her letter Exhibit C3.<br />  <br /> With due respect, I am of the view that the Appellant has failed to show that the findings reached by the lower court were perverse or not based on the evidence adduced before the lower court. From the evidence adduced, there was no contract between the Appellant and the Respondent. Consequently there was no client/solicitor relationship between them such as would bring into play the provisions of the Legal Practitioner's Act.</p> <p>In the final result, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower court is affirmed. I make no order as to costs.</p> <p>SIDI PAUPA BAGE I had the honour of reading in draft, the lead judgment just delivered by my learned brother, Honourable Justice CHINWE EUGENIA IYIZOBA, JCA. I am in full agreement with the reasoning and conclusion contained therein. The appeal lacks merit, and is also dismissed by me. I abide by the order as to costs contained in the lead judgment.<br />  <br /><u><strong>JAMILU YAMMAMA TUKUR JCA</strong></u> I had the privilege of reading the lead judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA JCA and I agree with him that the appeal lacks merit.<br /> I also dismissed same and I abide by the consequential orders made in the judgment.</p> </div> </div> <p><strong>Counsel</strong></p> <p>O. S. SOWEMIMO SAN WITH C. R. COKER (MISS) AND D. M. IFARAJIMI (MISS) FOR THE APPELLANT,</p> <p>V. O. OGUDE ESQ. FOR THE RESPONDENT,</p></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 322 at http://nigerialii.org Nyavo v Zading (YL 124 of 2015) [2016] NGCA 10 (28 July 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/10 <span class="field field--name-title field--type-string field--label-hidden">Nyavo v Zading (YL 124 of 2015) [2016] NGCA 10 (28 July 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/79" hreflang="x-default">CL, Notice of Appeal, Jurisdiction</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>The main issue faced by the court in this matter was whether an appeal could be allowed to proceed when the notice of appeal is incompetent. </p> <p>On the assertion that the notice was defective for failure to reflect names and addresses of the parties, the court was quick to dismiss the objection as baseless as the error was a mere irregularity which could not affect the hearing of the appeal on merits. It reasoned that a liberal interpretation must be followed thus non-compliance per se could not be a ground for nullifying a proceeding unless it could amount to a denial of justice. Since the requirement of endorsement of names and addresses was a measure of convenience and not mandatory, it could not render the notice invalid. </p> <p>On the contention that the notice did not relate to any suit, the court acknowledged the presence of incongruities between record of appeal and the notice to an extent that there was no nexus between the two. Further, it observed the incompleteness of the record, defects which amounted to a failure in invoking the court’s jurisdiction. The court decried the applicant’s failure to remedy the above defects by way of motion on notice to the lower court, a defect it held to be fundamental and stems to the very root of the appeal process. The court thus held the appeal was effectively incompetent and therefore there was no jurisdiction to hear the appeal. <br />  </p> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Yola?</strong></div> <div> </div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>MOHAMMED NYAVO</p> <p>and</p> <div><strong>Respondent</strong></div> <p>BENJAMIN ZADING</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)</strong></p> <p>This is an Appeal against the Judgment of the Taraba State High Court of Justice sitting in Jalingo, in suit number TRSJ/60/2013, delivered on the 31st July, 2015.<br /> The Appellant herein (as Plaintiff before the trial Court) took out a Writ of Summons jointly with one Shavo S. Mago, against the Respondent claiming as follows as per their joint Statement of Claim dated and filed on 16th May, 2014:</p> <p>1.    A DECLARATION that the Plaintiffs are the rightful owners and holders of all the titles and interest over the land lying and situate at Danpudi in Lau bounding to the North and west with Koppo Mountain and to the South with the main road to Zing and to the east with Jarang Stream and a large portion of the family land of the Plaintiffs and the larger portion of the Plaintiffs family land of the Plaintiffs and the larger portion of the Plaintiffs family.<br /> 2.    AN ORDER of perpetual injunction restraining the defendant, his privies, heirs, agents/or whosoever claiming through him from trespassing in to the land or doing anything prejudicial to the interest of the Plaintiffs on the said land.<br /> 3.    AN ORDER of this Honourable Court compiling the defendant to hand possession of the said land. <br /> 4.    The cost of litigation.</p> <p>The Respondent did not file any defence to the claim of the Appellant. The case of the Appellant, being declaratory in nature, he adduced evidence through two witnesses and closed his case. The Appellant’s Counsel later addressed the Court, and on 31st day of July, 2015, the trial Court in its Judgment, dismissed the Appellant’s claim. It is against this Judgment that the Appellant has now appealed on seven grounds vide his Notice of Appeal dated 22nd September, 2015 and filed on the 23rd September, 2015.</p> <p>A succinct statement of the facts leading to the Appeal is that, a dispute arose between the Appellant and the Respondent over a parcel of land lying and situate at Gada Village in Lau Local Government Area of Taraba State. The Appellant contended that he inherited the disputed land from his mother who also acquired same via a gift from her brother, Selleng who, in turn had deforested and founded the land before his demise. Selleng died without a child and so the gift to his sister, the Appellant’s mother. The Appellant and his younger brother, Shavo S. Mago, also now deceased, filed the suit against the Respondent before the trial Court. After the demise of the 2nd Plaintiff, the Appellant continued with the case to conclusion.</p> <p>The Writ of Summons was filed on 26th June 2013 and same was served on the Respondent. The Respondent did not put up a defense against the claim despite several adjournments granted at his instance to enable him file a Statement of Defence and to join issues with the Appellant. The Appellant thereafter adduced evidence in proof of his claim through two witnesses who were duly cross-examined by the Respondent. At the end of the trial, the Appellant’s Counsel filed and adopted his Written Address, after which the trial Court entered Judgment dismissing the case of the Appellant.</p> <p>When the Appeal was called up for hearing on 19th May, 2016, L.J. Ezekiel, (Mrs.), learned Counsel for the Respondent, with the leave of Court, argued the Respondent’s Notice of preliminary objection to the hearing of the Appeal filed on 29-02-16. She adopted the arguments on the objections at pages 3-5 of the Respondent’s Brief of argument also filed on 29-02-16 in urging the Court to strike out the Notice of Appeal on the ground of incompetence.</p> <p>Martin Milkman Esq. appearing with P.E. Owachu Esq., in response to the submissions on the preliminary objection, adopted his arguments at pages 1-7 of the Appellant’s Reply Brief of argument filed on 18-04-16 in answer thereto, and urged the Court to dismiss the objection for lacking in merit.  In respect of the main Appeal, Mr. Milkman adopted and relied on his submissions as contained in the Appellant’s Brief of argument filed on 23-12-15 and pages 7-14 of the Appellant’s Reply Brief filed on 18-04-16, in urging the Court to allow the Appeal, set aside the Judgment of the lower Court and enter Judgment for the Appellant in terms of the reliefs claimed before that Court.</p> <p>In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondent’s Brief of argument in urging the Court to dismiss the Appeal. </p> <p>Before going into the merits or otherwise of the Appeal, it is expedient to address the issues raised in the Notice of preliminary objection since they determination may have a bearing on the jurisdiction of the Court to entertain the Appeal.</p> <p>RULING ON PRELIMINARY OBJECTION</p> <p>The Notice of Preliminary objection filed by the Respondent on 29-02-2016 seeks an order of Court striking out or dismissing the Notice of Appeal in this Appeal on the following grounds:</p> <p>1.    “The Notice of Appeal filed by the Appellant on the 23rd day of September 2015 in this Appeal No. CA/YL/124/15 is incompetent and liable to be struck out.<br /> 2.    The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.”</p> <p>In his Brief of argument, the Respondent submits that the Notice of Appeal filed by the Appellant in this Appeal is incompetent for violating the mandatory provisions of Order 6 Rule 2(1) Court of Appeal Rules, 2011. He contends that the Notice of Appeal filed on 23rd September, 2015 failed to comply with this mandatory provision of the rules of this Court. He argues that the word ‘shall’ when used in a statute denotes a mandatory act and admits of no discretion. He relies on National Assembly V CCI Co. Limited (2008) 5 NWLR (Pt. 1081) 519 at 540, paras G-D. Counsel submits that when the law prescribes the mode in which a thing is to be done, it is only that method that must be followed, and any act to the contrary is a nullity. He relies on Orakul Resources Limited V NCC (2007) 16 NWLR (Pt. 1060) 270 at 302, paras D-G, 303 paras C-G.</p> <p>Secondly, Counsel submits that the Notice of Appeal filed by the Appellant does not relate to any suit filed at the Registry of the High Court of Justice of Taraba State. The Writ of Summons and Statement of Claim filed at the Registry of the trial High Court are at pages 1-7 of the printed Record. The registered suit number as contained on the Writ and Statement of claim is: No. TRSJ/60/2013.  The Notice of Appeal (at on pages 142-149 of the Record) however relates to suit no. TRSJ/160/2013.  He submits that the Notice of Appeal, having no bearing with any suit filed at the trial High Court, is incompetent and liable to be strike out and he invites the Court to so do.</p> <p>In response to the submissions in respect of the objection, learned Counsel for the Appellant submits that the import of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011, is that the names of all the parties affected by the Appeal must be indicated on the Notice of Appeal. The Rules do not mandatorily require that such information must be contained in a particular style on the Notice of Appeal. He relies on Amininaowuka V Derego (2011) LPELR-9099(CA) 1 at 10, paras A-G.<br /> Counsel argues that the germane question to be asked is: has the Notice of Appeal in this Appeal complied with the provision of Order 6 rule 2(1) of the Rules of Court? In other words, who are the parties affected by this Appeal? Are their names and addresses contained in the Notice of Appeal? A perusal of the Judgment of the trial Court appealed against contained at page 120 of the Record of Proceedings reveals that the parties at the lower Court were:</p> <p>MOHAMMED NYAVO    PLAINTIFF<br /> And BENJAMIN ZADING      DEFENDANT</p> <p>The parties as reflected on the Notice of Appeal (at page 142 of the Record of Appeal) are:</p> <p>MOHAMMED NYAVO     APPELLANT<br /> VS<br /> BENJAMIN ZADING    RESPONDENT</p> <p>Pages 148 and 149 of the Record contain the addresses of the parties affected by this Appeal. Counsel therefore submits that the failure of the Appellant’s Counsel to write out the names of the parties affected by the Appeal and their addresses in a distinct sub-head or a particular manner cannot invalidate a valid Notice of Appeal or render same incompetent to rob this Court of jurisdiction to hear and determine the Appeal on the merit.<br /> Assuming without conceding that failure to mention the names and addresses of the affected parties under a distinct sub-heading amounts to non-compliance with Order 6 Rule 2(1) of the Rules, Counsel submits that it is a mere irregularity. He relies on Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A.</p> <p>In response to the second arm of the preliminary objection that the Notice of Appeal filed by the Appellant does not relate to any suit, Counsel submits that the said Suit No. TRSJ/160/13 instead of Suit No. TRSJ/60/13 reflected on the Notice of Appeal was a mistake occasioned by the Registry of the lower Court. A perusal of the Judgment appealed against contained at page 120 of the Record of Proceedings, which was made available to the Appellant’s Counsel has Suit No. TRSJ/160/13. He argues that the mistake of the Registry cannot be visited on a litigant. Courts are not in the habit of punishing or penalizing a party because of the error committed by the Counsel the Judge or even court officials. He relies on Fidelity Bank Plc V Monye (2012) ALL FWLR (Pt. 631) 1412 at 1417-1418. More so that this Appeal is against the Judgment of the lower Court and the Notice of Appeal is attacking the said Judgment. It cannot therefore be right to submit that the Notice of Appeal which relates to the Judgment of lower Court is incompetent simply because Counsel inadvertently followed the mistake manifestly contained on the</p> <p>Judgment with respect to the suit number. Counsel submits further that, having regard to the provision of Order 6 of the Court of Appeal Rules, 2011 which stipulates the mandatory requirements of a valid Notice of appeal, the insertion of the Suit number on the Notice of Appeal is not a mandatory requirement of a valid Notice of Appeal. </p> <p>On the whole, Counsel submits that this objection is an attempt to take this Court back to the days of technical justice. More so that Counsel for the Respondent did not show how the Respondent was misled or how the wrong suit number and failure to mention the names and addresses of the parties affected by this Appeal in a separate sub-head will occasion a miscarriage of justice. He urged the Court to dismiss the preliminary objection for lacking in merit.</p> <p>Findings: </p> <p>It is without question that the initiating process for an Appeal before an appellate court is the Notice of Appeal. The Notice of Appeal is the foundation and substratum of every Appeal. Any defect thereto will render the whole appeal incompetent and the appellate court will lack the jurisdiction to entertain it. Thus, once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the Court to consider. It is the root of the appeal and robs the court of the jurisdiction to hear the appeal. See: FBN Plc V Maiwada (2012) LPELR-9713(SC); Uwazurike V AG Federation (2007) 8 NWLR (Pt. 1035) 11; AG Federation V Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187. That is exactly why, in FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) 1 at 49, Adekeye, JSC, stated as follows:</p> <p>“A notice of appeal in the process of appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain. See Anadi V Okoti (1972) 7 SC 57; CBN V Okojie (2004) 10 NWLR (Pt. 882) 488; Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622.”</p> <p>This Court has also spoken out very strongly on the issue of defective Notices of Appeal and the consequence of such. Thus, to validly invoke the jurisdiction of the Court, the Appellant must show that the appeal arose from the suit before the trial Court. The only way to do this is to state the particulars of the decision appealed against, etc. This would be consistent with the Civil Form 3 in the First Schedule to the Court of Appeal Rules, 2007.<br /> The Respondent’s first ground of objection in the Notice of preliminary objection reads as follows:</p> <p>“1. The Notice of Appeal filed by the Appellant on the 23rd day of September, 2015 in this Appeal No. CAYL/124/15 is incompetent and liable to be struck out.”  </p> <p>It is hinged on Order 6 Rule 2 of the Court of Appeal Rules, 2011. The Respondent’s contention is that the failure to reflect the names and addresses of the parties to the appeal in the Notice of Appeal renders it incompetent. I will quickly say that this ground of objection is baseless because the failure to state the names and addresses of all the parties directly affected by the Appeal in the Notice of Appeal has been serially held to be a mere irregularity which cannot affect the hearing of an appeal on the merit. See: Dyeris V Mobil Oil Nig. Plc (2009) LPELR-8914(CA) 1 at 11; Deen Mark Construction Co. Ltd V Abiola (2002) 3 NWLR (Pt. 754) 418; &amp; Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618, to mention a few. </p> <p>The provisions of the Court of Appeal Rules, 2011 dealing with the Notice and Grounds of Civil Appeals are contained on Part 2 of the said Rules. Order 6 Rule 2(1) under the Part 2 provides thus:</p> <p>“All appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.” (Emphasis supplied)</p> <p>It would appear indisputable from the underlined portion of the provision of the above rule that a Notice of Appeal is expected to contain the names and addresses of the parties directly affected by the Appeal; as well as the addresses for service of the said parties. The submissions of the Appellant in relation to the Notice of Appeal have been extensively reviewed, and it is evident that he expressly admits that there has been non-compliance with this rule in that no such names and addresses have been supplied on the Notice of Appeal as required. The question therefore is: whether the Notice of Appeal amounts to a nullity for this reason, as argued by the Respondent, particularly in view of the word “shall” used in relation to the endorsement of names and addresses for service?</p> <p>The law, no doubt, is that rules of court should be obeyed. However this Court has consistently held to the effect that, as a general rule, non-compliance with the rules of court (including its own Rules) is primarily an irregularity. See Enakhimion V Edo Transport Services (2006) ALL FWLR (Pt. 334) 1882 at 1904-1905, where this Court held to the effect that non-compliance with the rules of court does not prima facie invalidate the proceedings, unless no reasons are adduced upon which the Court can overlook or waive such non-compliance. In Uko V Ekpengyong (2006) ALL FWLR (Pt. 324) 1927 at 1946, again this Court held to the effect that non-compliance with the Rules of court would not be a ground for nullifying a proceeding unless such non-compliance amounts to a denial of justice. </p> <p>Rules of court, it must always be borne in mind, are actually rules of procedure made for the convenient and orderly hearing of cases. They are meant to aid the cause of justice and not to defeat it. For this reason, courts have been consistently admonished not to be slavish to their rules and therefore not to read the rules in the absolute, without recourse to the justice of the case. In other words, a most liberal approach is to be given to the interpretation of Rules of Court. See also Odu V Fawehinmi (Rtd) (2006) ALL FWLR (Pt. 301) 1848 at 1866. Indeed in this case, this Court, in order to bring out clearly the effect of non-compliance with the Rules of Court in any given situation, stated the difference between a defect in the competence of an action and a defect in procedure to be that: “a defect in competence of an action spells absence of jurisdiction,” while “a defect in procedure shows a defect in the process of adjudication and not fatal to jurisdiction.”    </p> <p>It is without a doubt that a Notice of Appeal can properly be said to be the originating process upon which an appeal is founded. This is because it is the process by which a party aggrieved by the decision of a court signifies his dissatisfaction. See Adelekan V Ekuline NJ (2000) ALL FWLR (Pt. 321) 1213 at 1222. The provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 relating to the endorsement on the Notice of Appeal of the parties directly affected by the appeal and the addresses for service on the parties, in my respectful view, is simply to ensure service of the said Notice of Appeal on the parties in the Appeal. An Appellant is equally enjoined by the provision of the Rule under consideration to provide not only the names and addresses of all parties directly affected by the Appeal, but to also file sufficient copies of the Notice of Appeal for service on such parties. Courts, it is to be appreciated, are expected to interpret the provision of legislation (be it statute or subsidiary, which Rules of court are), sensibly, and not make nonsense out of them. Against this backdrop, It is my respectful view that the requirement for the endorsement of names and addresses of parties affected by the Appeal on the Notice of Appeal, while important, is simply to enable the appropriate officer charged with the duty of serving the process know at a glance who the parties are and where service is to be effected, thereby eliminating the need for him to wade through the whole of the Notice of Appeal to determine this. The use of the word “shall” in relation to these endorsements therefore do not connote “mandatoriness” as argued by the Respondents. It is directory only, and the non-endorsement of the names and addresses of the parties for service of the court processes on the Notice of Appeal therefore, while important, cannot without more, render an otherwise valid Notice of Appeal, invalid. See Bob V Akpan (2009) LPELR-8519(CA) 1 at 47-51. This must be the reason for the finding of this Court by Tobi, JCA (as he then was, of blessed memory), as far back as the year 2000 in Agu V NICON (2000) 11 NWLR (Pt. 677) 187 at 194, where he held:</p> <p>“I hold that the failure on the part of the applicant to state in the Notice of Appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merits of the appeal.”</p> <p>Yet again, in Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A, Okunola JCA, held thus:</p> <p>“The fact that the word “shall” as used in the said Order 3 Rule 2(1) of the Court of Appeal Rules has been interpreted in other legislations to mean “mandatory” notwithstanding the case of Amata V Omofuma (1997) 2 NWLR (Pt. 485) 93; Ajayi V. Military Administrator, Ondo State, (1997) 5 NWLR (Pt. 504) 237; Okpala V DGNC for M.M. (1996) 4 NWLR (Pt. 444) 585 etc, this  Court had in two different cases made a return. Thus, in Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618 the Court, per Onalaja, JCA, relied on the decision in the case of Surakatu V Nigerian Hosing Dev. Society Ltd. (1984) 4 SC 26 and Odi V Osafile (1987) 2 NWLR (Pt. 57) 510 to hold that the mistake is an irregularity which should not affect the hearing of the appeal on the merit. See also the case of Agu V Nicon Ins. Plc (2000) 11 NWLR (Pt. 677) 187 at 194 per Tobi, JCA, where faced with a notice of appeal that failed to comply with the said Order Rule 2(1) held inter alia thus:</p> <p>“I hold that the failure on the part of the applicant to state in the notice of appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merit of the appeal’’. From the foregoing authorities, it is evidence that the argument of the learned SAN against an issue that has been pronounced upon as a mere irregularity cannot affect the hearing of this appeal on merit and I so hold.” (Emphasis supplied)</p> <p>In the instant Appeal, the names of the parties are clearly spelt out on the face of the Notice, while the addresses for service of the process have been stated at the end of the process. The objection of the Respondent that the Notice of Appeal filed by the Appellant is a nullity for failure to separately endorse the names and addresses of the parties, in my respectful view, rings hollow against the backdrop that the names are ad idem with those already stated in the Notice, and the addresses for service are also set out at the end of the Notice of Appeal. The hollowness of the objection becomes even more pronounced when it is viewed against the purpose which the provision is to serve vis-à-vis the lack of any complaint that the Notice of Appeal was not served. Thus, I am of the view that the failure by the Appellant to insert an endorsement separately bearing details of the names and addresses of the parties to the Appeal in the Notice of Appeal, is an irregularity that ordinarily, cannot and will not affect the hearing of the Appeal on the merit, and I so hold. The Respondent’s first ground of objection is therefore overruled. </p> <p>The second ground of objection in the Notice of preliminary objection is:<br /> “2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.”</p> <p>The Notice of Appeal dated 22nd September, 2015 and filed on 23rd September, 2015, (at un-numbered pages at the back of the printed Record of Appeal) in its first paragraph reads thus:</p> <p>“TAKE NOTICE that the Appellant, Mohammed Nyavo, who was the Plaintiff in Suit No: TRSJ/160/13, being dissatisfied with the decision of the Taraba State High Court sitting in Jalingo, contained in the Judgment dated the 31st day of July, 2015, Coram: Hon. Justice Silas Haruna, do hereby appeal to the Court of Appeal on the grounds and particulars set out in paragraph 3, and is seeking the reliefs set out in paragraph 4.” (Emphasis supplied) </p> <p>From the Writ of summons and Statement of Claim filed by the Appellant himself (as Plaintiff before the trial Court), at pages 1-7 of the Record of Appeal, the suit was registered at the Registry of the High Court of Justice, Taraba State as “suit number TRSJ/60/13”. This suit number is reflected on all processes filed in respect of the case at the lower Court, and is also reflected on the Record of proceedings transferred to this Court, (which constitutes the Record of Appeal), on 26th November, 2015. Just a cursory comparison of the Record of Appeal with the Notice of Appeal, reveals the obvious incongruity between the two. Clearly, there is nothing in the Notice of Appeal which would serve to invoke the jurisdiction of this Court to entertain the Appeal based on this Notice. The suit referred to in the Notice of Appeal has absolutely no nexus with the Record of Appeal before the Court. </p> <p>While noting however, as gleefully pointed out by learned Counsel for the Appellant, that the Judgment of the lower Court (at pages 120-140 of the Record) bears the same suit number as that in the defective Notice of Appeal, i.e. suit number “TRSJ/160/13” instead of “TRSJ/60/13,” it goes without saying that, in addition to the defect on the Notice of Appeal, the Record of proceedings transmitted to this Court, is also both incomplete and incompetent, as it does not contain a valid Judgment in respect of suit number TRSJ/60/2013, from which the Judgment is purported to emanate.  Without any correction effected to the Judgment of the lower Court itself by the learned trial Judge either suo motu or by a motion under the hand of one of the parties under the “Slip rule”, the Judgment itself is also a stranger to the proceedings in respect of the Record of Appeal transmitted to this Court.</p> <p>There is no doubt that an error or slip in the Judgment of a court can be corrected by that court. Most rules of court make such appropriate provisions to enable the Judges correct their Judgments. Judges are human after all and are subject to also err just like any other person. In Akpan V Umoh (1999) 7 SCNJ 154, the Supreme Court suo motu corrected a slip made by a lower Court in referring to a survey plan of a disputed plan. A Judge can amend his Judgment, whether enrolled or not, where there is a clerical slip or where the order does not express the meaning of the Judgment or the order intended by the Judge. This is what is known as the “Slip Rule” principle. The correction of such a slip by a party to the suit can only be made via a motion on notice. See: Makanjuola V Baligun (1989) 3 NWLR (Pt. 108) 192; NICON V Pie Co. Ltd (1990) 1 NWLR (Pt. 129) 697; Bakare V Apena (1986) 4 NWLR (Pt. 33) 1. See Nwankudu V Ibeto (2010) LPELR-4391(CA) 1 at 32; Olurotimi V Ige (1993) 8 NWLR (Pt. 311) 257; Koiki V FBN (1994) 8 NWLR (Pt. 35) 665. This is because there should be no ex parte communication between a party and the court. </p> <p>In this case, the Appellant has actually conceded to the defect in the Notice of Appeal. However curiously, he blames it on the Judgment of the learned trial Judge, which he says misled him, and therefore, in his view, he should not be blamed/sanctioned for it. Much as Counsel’s passing of the buck, in the way he has sought to do instead, of “man-ning” up to it, leaves a sour taste in the mouth, the problem is not so much the slip in the Judgment in stating the correct registered suit number of the case at the Court below. The problem is ignoring or overlooking the slip in the Judgment of the Court and failing to embark on initiating the proper procedure to have the slip corrected before activating the Appeal. Instead of going through that route, Counsel chose to compound the obvious error/slip on the face of the Judgment by filing a Notice of Appeal and deliberately choosing to base it on the wrong suit number, which suit number, as aforesaid, has no bearing to the suit filed by the Plaintiff at the lower Court, as well as the subsequent proceedings thereon. This was his choice, a risk, a gamble and he has lost! </p> <p>I am of the firm view that the slip in the Judgment (as pointed out by Counsel for the Appellant himself) and, by the same token, in the Notice of Appeal cannot be overlooked. The Judgment can only be corrected by the lower Court itself upon a motion on notice by the affected party. This was not done in this case, and it is only in the highest court in the hierarchy of courts that amendments to orders of a lower court may be made suo motu. Filing an Appeal based on this evident error has not helped the Appellant, but only made a bad case, worse. It is well settled that a court is able to correct a misnomer or mis-description under the “Slip Rule”. In the present case, the Taraba State High Court is a court of competent jurisdiction with definite powers, either under the Slip rule or under the inherent jurisdiction of the court, to rectify or correct its judgments or orders within the framework of the law concerning the rectification or correction of court judgments or orders. See Osho V Ape (1998) 8 NWLR (Pt. 562) 492; Afolabi V Adekunle (1993) 8 SC 98.  </p> <p>The Notice of Appeal contains the subject matter of that appeal. It is only when a proper Notice of Appeal has been filed that an appeal is said to have commenced. No appeal can stand without a proper Notice of Appeal to sustain it. Where a Notice of Appeal contains an error, or is fundamentally defective or deficient, it becomes incompetent and any appeal founded on an incompetent Notice is invalid. It renders any proceeding founded on it equally invalid, null and void. Thus, an appellate court has inherent power to strike it out for being incompetent as the issue touches on the competence of the Appeal and also the jurisdiction of the Court to entertain it. See Obidoa V Marchie (2010) LPELR-4668(CA) 1 at 16; Chairman, Oyo State LG Trad. Council V Adegboye (2010) LPELR-3903(CA) 1 at 14; LASTMA V Esezoobo (2010) LPELR-4420 (CA) 1 at 4; Cornelius V Ezenwa (1996) LPELR-1632(SC) 1 at 40; (1996) 4 NWLR (Pt. 443) 391; Tukur V Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 339.</p> <p> I feel the need to join the Supreme Court in deprecating the increasing habit of some Counsel who show very little care in the way and manner processes relating to Appeals in Court are prepared and filed. Some Counsel hardly take sufficient care in drawing up processes relating to Appeals from the decisions of lower Courts. The Notice of Appeal is a very important document because it is the foundation of the Appeal. If it is defective, the Court of Appeal has inherent power to strike it out on the ground that it is incompetent, and in appropriate cases, it will not hesitate to do so. See Anadi V Okoli (1977) LPELR-479-(SC) 1 at 3-4. </p> <p>I am of the considered view that the defect in this regard on the face of the Notice of Appeal is a fundamental defect that goes to the very root of the entire process. It is not an irregularity that can be cured by any amendment. It has failed to invoke the jurisdiction of the Court by virtue of this feature on the Judgment, in conjunction with the Notice of Appeal. Where the jurisdiction of the Court has not been properly invoked, the Court would have no jurisdiction to entertain an Appeal based on such an incompetent process. See MadukoluV Nkemdilim (1962) NLR LPELR-24023(SC). The error of Counsel in the present circumstances is fundamental and robs the Court of jurisdiction to entertain it. In the result, I sustain the preliminary objection to the hearing of the Appeal on the second ground of objection.<br /> On the whole, having found that the Notice of Appeal is incurably defective on the basis of the Appeal being against a non-existent suit, the objection of the Respondent to the hearing of the Appeal is sustained.</p> <p>Now the question is, having sustained ground two of the preliminary objection, what is the fate of the Appeal before the Court? I am well aware that as a general rule, an intermediate court, such as this Court, has a duty to pronounce on all issues placed before it. See: Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522.<br /> In this respect, this Court is unlike the Supreme Court which, as the apex court of the land, is vested with authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See: Shasi V Smith (2010) 6 WRN 39 at 68; Uzuda V Ebigah (2009) 48 WRN 1. </p> <p>Nonetheless, there exist some exceptions to this broad rule that applies to the Court of Appeal as an intermediate court. For instance, where the Court decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction. See: Falade (1995) 5 NWLR (Pt. 396) 385 at 407; Ifeanyi Chukwu (Osondu) Ltd V Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at 352. What this means therefore is that, where a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the Appeal. See: Onigemeh V Egbochualam (1996) NWLR (Pt. 448) 255; NEPA V Ango (2001) 15 NWLR (Pt. 737) 627; Uwazurike V AG, Federation (supra).  <br /> In the circumstance, there is nothing more worth considering in the Appeal. Put tersely, it lacks everything that any court should look for in an attempt to determine the credit of an appeal from a forensic point of view, the premise upon which the Appeal is based having crumbled like a pack of cards. This conclusion, as aforesaid, obviates the need to consider the arguments in the main appeal. This must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit. Indeed, that is why this court is under an obligation to resolve the issues agitated in the preliminary objection before taking any further step in the Appeal. Thus, since the preliminary objection to the competence of this Appeal has succeeded in the second ground, the proceedings in the Appeal are aborted, and the need to consider the issues raised therein automatically abates. The Appeal having been found incompetent, this Court lacks jurisdiction to entertain the Appellant’s agitation, which is woven around it. See Ikuepenikan V State (2015) LPELR-SC.402/2010 at 33-34; Onyemah V Egbuchulam (1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237; AG Federation V ANPP (2003) 12 SCNJ 67 at 81-82; Jim-Jaja V COP Rivers State (2012) LPELR-20621(SC) 10, para F; Okoi V Ibiag (2002) 10 NWLR (Pt. 776) 445 at 468; UBA Plc V ACB (2005) 12 NWLR (Pt. 939) 232; Goji V Ewete (2001) 15 NWLR (Pt. 736) 273 at 280; L.M. Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011) LPELR-8807; Ananeku v Ekeruo (2002) 1 NWLR (Pt. 748) 301; NPA V Eyamba (2005) 12 NWLR (Pt. 939) 409; UBN V Sogunro (2006) 16 NWLR (Pt. 1006) 504; Uwazurike V AG, Federation (2007) LPELR-3448(SC) 14; Okoye V Nigerian Construction &amp; Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import &amp; Export V Adebayo (2003) FWLR (Pt. 140) 1686. </p> <p>In the result, the Notice of Appeal in Appeal number CA/YL/124/2015 between Mohammed Nyavo V Benjamin Zading dated 22nd September, 2015 and filed on 23rd September, 2015, and the Appeal in its entirety, is accordingly struck out on the ground of incompetence.    <br />  <br /> SAIDU TANKO HUSAINI<br /> I had the privilege of reading in draft the lead Judgment of my learned brother, JummaiHannatuSankey, JCA just delivered. I am in total agreement with the reasoning therein and the conclusions arrived it<br /> A defective Notice of Appeal conveys no appeal and cannot for this reason serve as the medium throughwhich the grievances of the party effected by the case is ventilated. A Notice of appeal is fundamentally defective if it has no correlation with the facts in the record of Appeal. Such Notice is incompetent, and the appeal as well. I abide by the order in the lead Judgment striking out this appeal.</p> <p>BIOBELE ABRAHAM GEORGEWILL, JCA:<br /> I have been privileged to read in advance a draft copy of the lead judgment just delivered by my lord, JUMMAI HANNATU SANKEY JCA, and I am in complete agreement with both the reasons and conclusions reached therein, which I hereby humbly adopt as mine. I only wish to add a few words of mine to the lucid judgment. </p> <p>In law an issue of competence is of utmost importance. This is so because where the requisite jurisdiction to hear and entertain any suit or matter or cause or appeal is found to be lacking by reason of incompetence of the originating processes, that is indeed to end of the matter and it does not matter how meritorious or even how painful or difficult the result may be on the party whose originating process turns out to be incompetent. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the erudite Kayode Eso JSC, (God bless his soul) had put it so poetically and biblically thus: </p> <p>                      “Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the court on the hand labour in vain”  </p> <p>It is for this reason that the issue of competence, that is jurisdiction, can even be raised suo motu by the Court to ensure that matters before it are competent in order that the Court does not end up acting in vain and in nullity if it turns out in the end that it indeed lacked the requisite competence to have heard and determine the cause or matter or action or appeal before it.  It is simply a nullity. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Balogun V. Ohiwhere (2005) All FWLR (Pt. 281) 1724; Onuorah V. Kaduna PRC Ltd. (2005) All FWLR (Pt. 256) 1356; Okereke V. Yar’Adua (2008) All FWLR (Pt. 343) 636; Essien V. Essien (2010) All FWLR (Pt. 523) 1192; Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693; Western Steel Works Ltd. V. Iron and Steel Workers Union (1986) 2 NSCC (Vol. 17) 786 @ p. 798.</p> <p>In law, therefore, where a Court finds that it has no jurisdiction and that the proceedings are a nullity that is where the matter ends and no amount of sentiment or substantial justice or indeed over zealousness can dictate otherwise, since one cannot put something on nothing and expect it to stand. In Macfoy V. UAC Ltd. (1962)I AC 100  @ p. 160, the immortal words of the erudite law lord, Lord Denning springs forth thus:</p> <p>                      “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have an order declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” </p> <p>See also Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Barclays Bank of Nigeria V. C.B.N (1976) 1 All NLR (Pt. 1) 6; Attorney General of Lagos State V. Dosunmu (Supra) @ p. 552. </p> <p>The Notice of Appeal, in so far as appeals are concerned, is the originating process and thus must be valid and competent to confer life on an appeal. Consequently, once a Notice of appeal is found or turns out to be invalid and incompetent, as in the instant appeal, it is indeed the end of the matter. In law such an appeal commenced by an invalid Notice of Appeal is itself incompetent. It is incurably bad and thus good for nothing or anything worthwhile the precious time of this court to be considered on the merit. See Amadi V. Okoli (1977) 7 SC 57. See also Olarenwaju V. BON Ltd. (1994) 3 NWLR (Pt. 364) 622; Odofin v. Agu  ( 1992) 3 NWLR (Pt. 229) 350; Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Oketade (2010) 3 SCNJ 368. </p> <p>In Okarika V. Samuel (2013) 2 SCNJ 491, the Supreme Court pronounced with finality on the issue of invalid Notice of Appeal inter alia thus: </p> <p>                     “It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a court to adjudicate between parties on a subject matter in dispute between them. Thus a notice of appeal not signed by an appellant or his counsel is invalid as there is no stamp of authority or authentication”<br /> Again, in Shelim V. Gobang(2009) Vol. 173 LRCN 36 @ 42,   it was emphatically stated thus:</p> <p>                      “First and foremost, a notice of appeal is the basis, foundation and backbone of every appeal and where it is found to be defective or incompetent, the Court of Appeal has the power to strike it out or to discountenance any purported appeal for which there is no notice of appeal.”<br /> The above decision, though based on the strength of the succinct provisions of the Rules of this Court, vide Order 6 Rule 6 of the Court of Appeal Rules 2011, is equally true as the general position of the law whenever a Court or Tribunal finds that the originating process of any matter before it is incompetent and not initiated by due process of law, such a process or matter is invalid and a nullity and should be struck out without much ado! See Order 6 (6) of the Rules of this Court, which provides as follows: <br />                           “The Court shall have the power to strike out a notice of appeal when the appeal is not competent..........”    <br /> See also Nigerian Army V. Sgt. Samuel (2013) LPELR 20931. See also Yusuf V. Tolulu (2008) 6 SCNJ 1; Olori Motors Co. Ltd V. UBN Plc (2006) 4SCNJ 1; Okotie – Eboh V. Manager (2004) 5 SCNJ 131; Anya V. Imo Concorde Hotel (2001) 12 SCNJ 145.<br /> It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the preliminary objection challenging the competence of the appeal partly succeeds on the second ground of objection. Consequently, I too hereby strike out the Notice of Appeal and the entire appeal founded thereon for being incompetent.?</p> </div> </div> <p><strong>Counsel</strong></p> <p> Martin Milkman Esq. with P.E. Owachu Esq., appears for the Appellant.<br /> L.J. Ezekiel (Mrs.) appears for the Respondent</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-ebfbee549a6385f04ad68234c5647ef2f4fd1ab6d6edd4a863592fcc9a83ebf8"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Yola?</strong></div> <div> </div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>MOHAMMED NYAVO</p> <p>and</p> <div><strong>Respondent</strong></div> <p>BENJAMIN ZADING</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)</strong></p> <p>This is an Appeal against the Judgment of the Taraba State High Court of Justice sitting in Jalingo, in suit number TRSJ/60/2013, delivered on the 31st July, 2015.<br /> The Appellant herein (as Plaintiff before the trial Court) took out a Writ of Summons jointly with one Shavo S. Mago, against the Respondent claiming as follows as per their joint Statement of Claim dated and filed on 16th May, 2014:</p> <p>1.    A DECLARATION that the Plaintiffs are the rightful owners and holders of all the titles and interest over the land lying and situate at Danpudi in Lau bounding to the North and west with Koppo Mountain and to the South with the main road to Zing and to the east with Jarang Stream and a large portion of the family land of the Plaintiffs and the larger portion of the Plaintiffs family land of the Plaintiffs and the larger portion of the Plaintiffs family.<br /> 2.    AN ORDER of perpetual injunction restraining the defendant, his privies, heirs, agents/or whosoever claiming through him from trespassing in to the land or doing anything prejudicial to the interest of the Plaintiffs on the said land.<br /> 3.    AN ORDER of this Honourable Court compiling the defendant to hand possession of the said land. <br /> 4.    The cost of litigation.</p> <p>The Respondent did not file any defence to the claim of the Appellant. The case of the Appellant, being declaratory in nature, he adduced evidence through two witnesses and closed his case. The Appellant’s Counsel later addressed the Court, and on 31st day of July, 2015, the trial Court in its Judgment, dismissed the Appellant’s claim. It is against this Judgment that the Appellant has now appealed on seven grounds vide his Notice of Appeal dated 22nd September, 2015 and filed on the 23rd September, 2015.</p> <p>A succinct statement of the facts leading to the Appeal is that, a dispute arose between the Appellant and the Respondent over a parcel of land lying and situate at Gada Village in Lau Local Government Area of Taraba State. The Appellant contended that he inherited the disputed land from his mother who also acquired same via a gift from her brother, Selleng who, in turn had deforested and founded the land before his demise. Selleng died without a child and so the gift to his sister, the Appellant’s mother. The Appellant and his younger brother, Shavo S. Mago, also now deceased, filed the suit against the Respondent before the trial Court. After the demise of the 2nd Plaintiff, the Appellant continued with the case to conclusion.</p> <p>The Writ of Summons was filed on 26th June 2013 and same was served on the Respondent. The Respondent did not put up a defense against the claim despite several adjournments granted at his instance to enable him file a Statement of Defence and to join issues with the Appellant. The Appellant thereafter adduced evidence in proof of his claim through two witnesses who were duly cross-examined by the Respondent. At the end of the trial, the Appellant’s Counsel filed and adopted his Written Address, after which the trial Court entered Judgment dismissing the case of the Appellant.</p> <p>When the Appeal was called up for hearing on 19th May, 2016, L.J. Ezekiel, (Mrs.), learned Counsel for the Respondent, with the leave of Court, argued the Respondent’s Notice of preliminary objection to the hearing of the Appeal filed on 29-02-16. She adopted the arguments on the objections at pages 3-5 of the Respondent’s Brief of argument also filed on 29-02-16 in urging the Court to strike out the Notice of Appeal on the ground of incompetence.</p> <p>Martin Milkman Esq. appearing with P.E. Owachu Esq., in response to the submissions on the preliminary objection, adopted his arguments at pages 1-7 of the Appellant’s Reply Brief of argument filed on 18-04-16 in answer thereto, and urged the Court to dismiss the objection for lacking in merit.  In respect of the main Appeal, Mr. Milkman adopted and relied on his submissions as contained in the Appellant’s Brief of argument filed on 23-12-15 and pages 7-14 of the Appellant’s Reply Brief filed on 18-04-16, in urging the Court to allow the Appeal, set aside the Judgment of the lower Court and enter Judgment for the Appellant in terms of the reliefs claimed before that Court.</p> <p>In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondent’s Brief of argument in urging the Court to dismiss the Appeal. </p> <p>Before going into the merits or otherwise of the Appeal, it is expedient to address the issues raised in the Notice of preliminary objection since they determination may have a bearing on the jurisdiction of the Court to entertain the Appeal.</p> <p>RULING ON PRELIMINARY OBJECTION</p> <p>The Notice of Preliminary objection filed by the Respondent on 29-02-2016 seeks an order of Court striking out or dismissing the Notice of Appeal in this Appeal on the following grounds:</p> <p>1.    “The Notice of Appeal filed by the Appellant on the 23rd day of September 2015 in this Appeal No. CA/YL/124/15 is incompetent and liable to be struck out.<br /> 2.    The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.”</p> <p>In his Brief of argument, the Respondent submits that the Notice of Appeal filed by the Appellant in this Appeal is incompetent for violating the mandatory provisions of Order 6 Rule 2(1) Court of Appeal Rules, 2011. He contends that the Notice of Appeal filed on 23rd September, 2015 failed to comply with this mandatory provision of the rules of this Court. He argues that the word ‘shall’ when used in a statute denotes a mandatory act and admits of no discretion. He relies on National Assembly V CCI Co. Limited (2008) 5 NWLR (Pt. 1081) 519 at 540, paras G-D. Counsel submits that when the law prescribes the mode in which a thing is to be done, it is only that method that must be followed, and any act to the contrary is a nullity. He relies on Orakul Resources Limited V NCC (2007) 16 NWLR (Pt. 1060) 270 at 302, paras D-G, 303 paras C-G.</p> <p>Secondly, Counsel submits that the Notice of Appeal filed by the Appellant does not relate to any suit filed at the Registry of the High Court of Justice of Taraba State. The Writ of Summons and Statement of Claim filed at the Registry of the trial High Court are at pages 1-7 of the printed Record. The registered suit number as contained on the Writ and Statement of claim is: No. TRSJ/60/2013.  The Notice of Appeal (at on pages 142-149 of the Record) however relates to suit no. TRSJ/160/2013.  He submits that the Notice of Appeal, having no bearing with any suit filed at the trial High Court, is incompetent and liable to be strike out and he invites the Court to so do.</p> <p>In response to the submissions in respect of the objection, learned Counsel for the Appellant submits that the import of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011, is that the names of all the parties affected by the Appeal must be indicated on the Notice of Appeal. The Rules do not mandatorily require that such information must be contained in a particular style on the Notice of Appeal. He relies on Amininaowuka V Derego (2011) LPELR-9099(CA) 1 at 10, paras A-G.<br /> Counsel argues that the germane question to be asked is: has the Notice of Appeal in this Appeal complied with the provision of Order 6 rule 2(1) of the Rules of Court? In other words, who are the parties affected by this Appeal? Are their names and addresses contained in the Notice of Appeal? A perusal of the Judgment of the trial Court appealed against contained at page 120 of the Record of Proceedings reveals that the parties at the lower Court were:</p> <p>MOHAMMED NYAVO    PLAINTIFF<br /> And BENJAMIN ZADING      DEFENDANT</p> <p>The parties as reflected on the Notice of Appeal (at page 142 of the Record of Appeal) are:</p> <p>MOHAMMED NYAVO     APPELLANT<br /> VS<br /> BENJAMIN ZADING    RESPONDENT</p> <p>Pages 148 and 149 of the Record contain the addresses of the parties affected by this Appeal. Counsel therefore submits that the failure of the Appellant’s Counsel to write out the names of the parties affected by the Appeal and their addresses in a distinct sub-head or a particular manner cannot invalidate a valid Notice of Appeal or render same incompetent to rob this Court of jurisdiction to hear and determine the Appeal on the merit.<br /> Assuming without conceding that failure to mention the names and addresses of the affected parties under a distinct sub-heading amounts to non-compliance with Order 6 Rule 2(1) of the Rules, Counsel submits that it is a mere irregularity. He relies on Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A.</p> <p>In response to the second arm of the preliminary objection that the Notice of Appeal filed by the Appellant does not relate to any suit, Counsel submits that the said Suit No. TRSJ/160/13 instead of Suit No. TRSJ/60/13 reflected on the Notice of Appeal was a mistake occasioned by the Registry of the lower Court. A perusal of the Judgment appealed against contained at page 120 of the Record of Proceedings, which was made available to the Appellant’s Counsel has Suit No. TRSJ/160/13. He argues that the mistake of the Registry cannot be visited on a litigant. Courts are not in the habit of punishing or penalizing a party because of the error committed by the Counsel the Judge or even court officials. He relies on Fidelity Bank Plc V Monye (2012) ALL FWLR (Pt. 631) 1412 at 1417-1418. More so that this Appeal is against the Judgment of the lower Court and the Notice of Appeal is attacking the said Judgment. It cannot therefore be right to submit that the Notice of Appeal which relates to the Judgment of lower Court is incompetent simply because Counsel inadvertently followed the mistake manifestly contained on the</p> <p>Judgment with respect to the suit number. Counsel submits further that, having regard to the provision of Order 6 of the Court of Appeal Rules, 2011 which stipulates the mandatory requirements of a valid Notice of appeal, the insertion of the Suit number on the Notice of Appeal is not a mandatory requirement of a valid Notice of Appeal. </p> <p>On the whole, Counsel submits that this objection is an attempt to take this Court back to the days of technical justice. More so that Counsel for the Respondent did not show how the Respondent was misled or how the wrong suit number and failure to mention the names and addresses of the parties affected by this Appeal in a separate sub-head will occasion a miscarriage of justice. He urged the Court to dismiss the preliminary objection for lacking in merit.</p> <p>Findings: </p> <p>It is without question that the initiating process for an Appeal before an appellate court is the Notice of Appeal. The Notice of Appeal is the foundation and substratum of every Appeal. Any defect thereto will render the whole appeal incompetent and the appellate court will lack the jurisdiction to entertain it. Thus, once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the Court to consider. It is the root of the appeal and robs the court of the jurisdiction to hear the appeal. See: FBN Plc V Maiwada (2012) LPELR-9713(SC); Uwazurike V AG Federation (2007) 8 NWLR (Pt. 1035) 11; AG Federation V Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187. That is exactly why, in FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) 1 at 49, Adekeye, JSC, stated as follows:</p> <p>“A notice of appeal in the process of appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain. See Anadi V Okoti (1972) 7 SC 57; CBN V Okojie (2004) 10 NWLR (Pt. 882) 488; Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622.”</p> <p>This Court has also spoken out very strongly on the issue of defective Notices of Appeal and the consequence of such. Thus, to validly invoke the jurisdiction of the Court, the Appellant must show that the appeal arose from the suit before the trial Court. The only way to do this is to state the particulars of the decision appealed against, etc. This would be consistent with the Civil Form 3 in the First Schedule to the Court of Appeal Rules, 2007.<br /> The Respondent’s first ground of objection in the Notice of preliminary objection reads as follows:</p> <p>“1. The Notice of Appeal filed by the Appellant on the 23rd day of September, 2015 in this Appeal No. CAYL/124/15 is incompetent and liable to be struck out.”  </p> <p>It is hinged on Order 6 Rule 2 of the Court of Appeal Rules, 2011. The Respondent’s contention is that the failure to reflect the names and addresses of the parties to the appeal in the Notice of Appeal renders it incompetent. I will quickly say that this ground of objection is baseless because the failure to state the names and addresses of all the parties directly affected by the Appeal in the Notice of Appeal has been serially held to be a mere irregularity which cannot affect the hearing of an appeal on the merit. See: Dyeris V Mobil Oil Nig. Plc (2009) LPELR-8914(CA) 1 at 11; Deen Mark Construction Co. Ltd V Abiola (2002) 3 NWLR (Pt. 754) 418; &amp; Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618, to mention a few. </p> <p>The provisions of the Court of Appeal Rules, 2011 dealing with the Notice and Grounds of Civil Appeals are contained on Part 2 of the said Rules. Order 6 Rule 2(1) under the Part 2 provides thus:</p> <p>“All appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.” (Emphasis supplied)</p> <p>It would appear indisputable from the underlined portion of the provision of the above rule that a Notice of Appeal is expected to contain the names and addresses of the parties directly affected by the Appeal; as well as the addresses for service of the said parties. The submissions of the Appellant in relation to the Notice of Appeal have been extensively reviewed, and it is evident that he expressly admits that there has been non-compliance with this rule in that no such names and addresses have been supplied on the Notice of Appeal as required. The question therefore is: whether the Notice of Appeal amounts to a nullity for this reason, as argued by the Respondent, particularly in view of the word “shall” used in relation to the endorsement of names and addresses for service?</p> <p>The law, no doubt, is that rules of court should be obeyed. However this Court has consistently held to the effect that, as a general rule, non-compliance with the rules of court (including its own Rules) is primarily an irregularity. See Enakhimion V Edo Transport Services (2006) ALL FWLR (Pt. 334) 1882 at 1904-1905, where this Court held to the effect that non-compliance with the rules of court does not prima facie invalidate the proceedings, unless no reasons are adduced upon which the Court can overlook or waive such non-compliance. In Uko V Ekpengyong (2006) ALL FWLR (Pt. 324) 1927 at 1946, again this Court held to the effect that non-compliance with the Rules of court would not be a ground for nullifying a proceeding unless such non-compliance amounts to a denial of justice. </p> <p>Rules of court, it must always be borne in mind, are actually rules of procedure made for the convenient and orderly hearing of cases. They are meant to aid the cause of justice and not to defeat it. For this reason, courts have been consistently admonished not to be slavish to their rules and therefore not to read the rules in the absolute, without recourse to the justice of the case. In other words, a most liberal approach is to be given to the interpretation of Rules of Court. See also Odu V Fawehinmi (Rtd) (2006) ALL FWLR (Pt. 301) 1848 at 1866. Indeed in this case, this Court, in order to bring out clearly the effect of non-compliance with the Rules of Court in any given situation, stated the difference between a defect in the competence of an action and a defect in procedure to be that: “a defect in competence of an action spells absence of jurisdiction,” while “a defect in procedure shows a defect in the process of adjudication and not fatal to jurisdiction.”    </p> <p>It is without a doubt that a Notice of Appeal can properly be said to be the originating process upon which an appeal is founded. This is because it is the process by which a party aggrieved by the decision of a court signifies his dissatisfaction. See Adelekan V Ekuline NJ (2000) ALL FWLR (Pt. 321) 1213 at 1222. The provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 relating to the endorsement on the Notice of Appeal of the parties directly affected by the appeal and the addresses for service on the parties, in my respectful view, is simply to ensure service of the said Notice of Appeal on the parties in the Appeal. An Appellant is equally enjoined by the provision of the Rule under consideration to provide not only the names and addresses of all parties directly affected by the Appeal, but to also file sufficient copies of the Notice of Appeal for service on such parties. Courts, it is to be appreciated, are expected to interpret the provision of legislation (be it statute or subsidiary, which Rules of court are), sensibly, and not make nonsense out of them. Against this backdrop, It is my respectful view that the requirement for the endorsement of names and addresses of parties affected by the Appeal on the Notice of Appeal, while important, is simply to enable the appropriate officer charged with the duty of serving the process know at a glance who the parties are and where service is to be effected, thereby eliminating the need for him to wade through the whole of the Notice of Appeal to determine this. The use of the word “shall” in relation to these endorsements therefore do not connote “mandatoriness” as argued by the Respondents. It is directory only, and the non-endorsement of the names and addresses of the parties for service of the court processes on the Notice of Appeal therefore, while important, cannot without more, render an otherwise valid Notice of Appeal, invalid. See Bob V Akpan (2009) LPELR-8519(CA) 1 at 47-51. This must be the reason for the finding of this Court by Tobi, JCA (as he then was, of blessed memory), as far back as the year 2000 in Agu V NICON (2000) 11 NWLR (Pt. 677) 187 at 194, where he held:</p> <p>“I hold that the failure on the part of the applicant to state in the Notice of Appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merits of the appeal.”</p> <p>Yet again, in Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A, Okunola JCA, held thus:</p> <p>“The fact that the word “shall” as used in the said Order 3 Rule 2(1) of the Court of Appeal Rules has been interpreted in other legislations to mean “mandatory” notwithstanding the case of Amata V Omofuma (1997) 2 NWLR (Pt. 485) 93; Ajayi V. Military Administrator, Ondo State, (1997) 5 NWLR (Pt. 504) 237; Okpala V DGNC for M.M. (1996) 4 NWLR (Pt. 444) 585 etc, this  Court had in two different cases made a return. Thus, in Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618 the Court, per Onalaja, JCA, relied on the decision in the case of Surakatu V Nigerian Hosing Dev. Society Ltd. (1984) 4 SC 26 and Odi V Osafile (1987) 2 NWLR (Pt. 57) 510 to hold that the mistake is an irregularity which should not affect the hearing of the appeal on the merit. See also the case of Agu V Nicon Ins. Plc (2000) 11 NWLR (Pt. 677) 187 at 194 per Tobi, JCA, where faced with a notice of appeal that failed to comply with the said Order Rule 2(1) held inter alia thus:</p> <p>“I hold that the failure on the part of the applicant to state in the notice of appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merit of the appeal’’. From the foregoing authorities, it is evidence that the argument of the learned SAN against an issue that has been pronounced upon as a mere irregularity cannot affect the hearing of this appeal on merit and I so hold.” (Emphasis supplied)</p> <p>In the instant Appeal, the names of the parties are clearly spelt out on the face of the Notice, while the addresses for service of the process have been stated at the end of the process. The objection of the Respondent that the Notice of Appeal filed by the Appellant is a nullity for failure to separately endorse the names and addresses of the parties, in my respectful view, rings hollow against the backdrop that the names are ad idem with those already stated in the Notice, and the addresses for service are also set out at the end of the Notice of Appeal. The hollowness of the objection becomes even more pronounced when it is viewed against the purpose which the provision is to serve vis-à-vis the lack of any complaint that the Notice of Appeal was not served. Thus, I am of the view that the failure by the Appellant to insert an endorsement separately bearing details of the names and addresses of the parties to the Appeal in the Notice of Appeal, is an irregularity that ordinarily, cannot and will not affect the hearing of the Appeal on the merit, and I so hold. The Respondent’s first ground of objection is therefore overruled. </p> <p>The second ground of objection in the Notice of preliminary objection is:<br /> “2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.”</p> <p>The Notice of Appeal dated 22nd September, 2015 and filed on 23rd September, 2015, (at un-numbered pages at the back of the printed Record of Appeal) in its first paragraph reads thus:</p> <p>“TAKE NOTICE that the Appellant, Mohammed Nyavo, who was the Plaintiff in Suit No: TRSJ/160/13, being dissatisfied with the decision of the Taraba State High Court sitting in Jalingo, contained in the Judgment dated the 31st day of July, 2015, Coram: Hon. Justice Silas Haruna, do hereby appeal to the Court of Appeal on the grounds and particulars set out in paragraph 3, and is seeking the reliefs set out in paragraph 4.” (Emphasis supplied) </p> <p>From the Writ of summons and Statement of Claim filed by the Appellant himself (as Plaintiff before the trial Court), at pages 1-7 of the Record of Appeal, the suit was registered at the Registry of the High Court of Justice, Taraba State as “suit number TRSJ/60/13”. This suit number is reflected on all processes filed in respect of the case at the lower Court, and is also reflected on the Record of proceedings transferred to this Court, (which constitutes the Record of Appeal), on 26th November, 2015. Just a cursory comparison of the Record of Appeal with the Notice of Appeal, reveals the obvious incongruity between the two. Clearly, there is nothing in the Notice of Appeal which would serve to invoke the jurisdiction of this Court to entertain the Appeal based on this Notice. The suit referred to in the Notice of Appeal has absolutely no nexus with the Record of Appeal before the Court. </p> <p>While noting however, as gleefully pointed out by learned Counsel for the Appellant, that the Judgment of the lower Court (at pages 120-140 of the Record) bears the same suit number as that in the defective Notice of Appeal, i.e. suit number “TRSJ/160/13” instead of “TRSJ/60/13,” it goes without saying that, in addition to the defect on the Notice of Appeal, the Record of proceedings transmitted to this Court, is also both incomplete and incompetent, as it does not contain a valid Judgment in respect of suit number TRSJ/60/2013, from which the Judgment is purported to emanate.  Without any correction effected to the Judgment of the lower Court itself by the learned trial Judge either suo motu or by a motion under the hand of one of the parties under the “Slip rule”, the Judgment itself is also a stranger to the proceedings in respect of the Record of Appeal transmitted to this Court.</p> <p>There is no doubt that an error or slip in the Judgment of a court can be corrected by that court. Most rules of court make such appropriate provisions to enable the Judges correct their Judgments. Judges are human after all and are subject to also err just like any other person. In Akpan V Umoh (1999) 7 SCNJ 154, the Supreme Court suo motu corrected a slip made by a lower Court in referring to a survey plan of a disputed plan. A Judge can amend his Judgment, whether enrolled or not, where there is a clerical slip or where the order does not express the meaning of the Judgment or the order intended by the Judge. This is what is known as the “Slip Rule” principle. The correction of such a slip by a party to the suit can only be made via a motion on notice. See: Makanjuola V Baligun (1989) 3 NWLR (Pt. 108) 192; NICON V Pie Co. Ltd (1990) 1 NWLR (Pt. 129) 697; Bakare V Apena (1986) 4 NWLR (Pt. 33) 1. See Nwankudu V Ibeto (2010) LPELR-4391(CA) 1 at 32; Olurotimi V Ige (1993) 8 NWLR (Pt. 311) 257; Koiki V FBN (1994) 8 NWLR (Pt. 35) 665. This is because there should be no ex parte communication between a party and the court. </p> <p>In this case, the Appellant has actually conceded to the defect in the Notice of Appeal. However curiously, he blames it on the Judgment of the learned trial Judge, which he says misled him, and therefore, in his view, he should not be blamed/sanctioned for it. Much as Counsel’s passing of the buck, in the way he has sought to do instead, of “man-ning” up to it, leaves a sour taste in the mouth, the problem is not so much the slip in the Judgment in stating the correct registered suit number of the case at the Court below. The problem is ignoring or overlooking the slip in the Judgment of the Court and failing to embark on initiating the proper procedure to have the slip corrected before activating the Appeal. Instead of going through that route, Counsel chose to compound the obvious error/slip on the face of the Judgment by filing a Notice of Appeal and deliberately choosing to base it on the wrong suit number, which suit number, as aforesaid, has no bearing to the suit filed by the Plaintiff at the lower Court, as well as the subsequent proceedings thereon. This was his choice, a risk, a gamble and he has lost! </p> <p>I am of the firm view that the slip in the Judgment (as pointed out by Counsel for the Appellant himself) and, by the same token, in the Notice of Appeal cannot be overlooked. The Judgment can only be corrected by the lower Court itself upon a motion on notice by the affected party. This was not done in this case, and it is only in the highest court in the hierarchy of courts that amendments to orders of a lower court may be made suo motu. Filing an Appeal based on this evident error has not helped the Appellant, but only made a bad case, worse. It is well settled that a court is able to correct a misnomer or mis-description under the “Slip Rule”. In the present case, the Taraba State High Court is a court of competent jurisdiction with definite powers, either under the Slip rule or under the inherent jurisdiction of the court, to rectify or correct its judgments or orders within the framework of the law concerning the rectification or correction of court judgments or orders. See Osho V Ape (1998) 8 NWLR (Pt. 562) 492; Afolabi V Adekunle (1993) 8 SC 98.  </p> <p>The Notice of Appeal contains the subject matter of that appeal. It is only when a proper Notice of Appeal has been filed that an appeal is said to have commenced. No appeal can stand without a proper Notice of Appeal to sustain it. Where a Notice of Appeal contains an error, or is fundamentally defective or deficient, it becomes incompetent and any appeal founded on an incompetent Notice is invalid. It renders any proceeding founded on it equally invalid, null and void. Thus, an appellate court has inherent power to strike it out for being incompetent as the issue touches on the competence of the Appeal and also the jurisdiction of the Court to entertain it. See Obidoa V Marchie (2010) LPELR-4668(CA) 1 at 16; Chairman, Oyo State LG Trad. Council V Adegboye (2010) LPELR-3903(CA) 1 at 14; LASTMA V Esezoobo (2010) LPELR-4420 (CA) 1 at 4; Cornelius V Ezenwa (1996) LPELR-1632(SC) 1 at 40; (1996) 4 NWLR (Pt. 443) 391; Tukur V Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 339.</p> <p> I feel the need to join the Supreme Court in deprecating the increasing habit of some Counsel who show very little care in the way and manner processes relating to Appeals in Court are prepared and filed. Some Counsel hardly take sufficient care in drawing up processes relating to Appeals from the decisions of lower Courts. The Notice of Appeal is a very important document because it is the foundation of the Appeal. If it is defective, the Court of Appeal has inherent power to strike it out on the ground that it is incompetent, and in appropriate cases, it will not hesitate to do so. See Anadi V Okoli (1977) LPELR-479-(SC) 1 at 3-4. </p> <p>I am of the considered view that the defect in this regard on the face of the Notice of Appeal is a fundamental defect that goes to the very root of the entire process. It is not an irregularity that can be cured by any amendment. It has failed to invoke the jurisdiction of the Court by virtue of this feature on the Judgment, in conjunction with the Notice of Appeal. Where the jurisdiction of the Court has not been properly invoked, the Court would have no jurisdiction to entertain an Appeal based on such an incompetent process. See MadukoluV Nkemdilim (1962) NLR LPELR-24023(SC). The error of Counsel in the present circumstances is fundamental and robs the Court of jurisdiction to entertain it. In the result, I sustain the preliminary objection to the hearing of the Appeal on the second ground of objection.<br /> On the whole, having found that the Notice of Appeal is incurably defective on the basis of the Appeal being against a non-existent suit, the objection of the Respondent to the hearing of the Appeal is sustained.</p> <p>Now the question is, having sustained ground two of the preliminary objection, what is the fate of the Appeal before the Court? I am well aware that as a general rule, an intermediate court, such as this Court, has a duty to pronounce on all issues placed before it. See: Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522.<br /> In this respect, this Court is unlike the Supreme Court which, as the apex court of the land, is vested with authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See: Shasi V Smith (2010) 6 WRN 39 at 68; Uzuda V Ebigah (2009) 48 WRN 1. </p> <p>Nonetheless, there exist some exceptions to this broad rule that applies to the Court of Appeal as an intermediate court. For instance, where the Court decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction. See: Falade (1995) 5 NWLR (Pt. 396) 385 at 407; Ifeanyi Chukwu (Osondu) Ltd V Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at 352. What this means therefore is that, where a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the Appeal. See: Onigemeh V Egbochualam (1996) NWLR (Pt. 448) 255; NEPA V Ango (2001) 15 NWLR (Pt. 737) 627; Uwazurike V AG, Federation (supra).  <br /> In the circumstance, there is nothing more worth considering in the Appeal. Put tersely, it lacks everything that any court should look for in an attempt to determine the credit of an appeal from a forensic point of view, the premise upon which the Appeal is based having crumbled like a pack of cards. This conclusion, as aforesaid, obviates the need to consider the arguments in the main appeal. This must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit. Indeed, that is why this court is under an obligation to resolve the issues agitated in the preliminary objection before taking any further step in the Appeal. Thus, since the preliminary objection to the competence of this Appeal has succeeded in the second ground, the proceedings in the Appeal are aborted, and the need to consider the issues raised therein automatically abates. The Appeal having been found incompetent, this Court lacks jurisdiction to entertain the Appellant’s agitation, which is woven around it. See Ikuepenikan V State (2015) LPELR-SC.402/2010 at 33-34; Onyemah V Egbuchulam (1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237; AG Federation V ANPP (2003) 12 SCNJ 67 at 81-82; Jim-Jaja V COP Rivers State (2012) LPELR-20621(SC) 10, para F; Okoi V Ibiag (2002) 10 NWLR (Pt. 776) 445 at 468; UBA Plc V ACB (2005) 12 NWLR (Pt. 939) 232; Goji V Ewete (2001) 15 NWLR (Pt. 736) 273 at 280; L.M. Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011) LPELR-8807; Ananeku v Ekeruo (2002) 1 NWLR (Pt. 748) 301; NPA V Eyamba (2005) 12 NWLR (Pt. 939) 409; UBN V Sogunro (2006) 16 NWLR (Pt. 1006) 504; Uwazurike V AG, Federation (2007) LPELR-3448(SC) 14; Okoye V Nigerian Construction &amp; Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import &amp; Export V Adebayo (2003) FWLR (Pt. 140) 1686. </p> <p>In the result, the Notice of Appeal in Appeal number CA/YL/124/2015 between Mohammed Nyavo V Benjamin Zading dated 22nd September, 2015 and filed on 23rd September, 2015, and the Appeal in its entirety, is accordingly struck out on the ground of incompetence.    <br />  <br /> SAIDU TANKO HUSAINI<br /> I had the privilege of reading in draft the lead Judgment of my learned brother, JummaiHannatuSankey, JCA just delivered. I am in total agreement with the reasoning therein and the conclusions arrived it<br /> A defective Notice of Appeal conveys no appeal and cannot for this reason serve as the medium throughwhich the grievances of the party effected by the case is ventilated. A Notice of appeal is fundamentally defective if it has no correlation with the facts in the record of Appeal. Such Notice is incompetent, and the appeal as well. I abide by the order in the lead Judgment striking out this appeal.</p> <p>BIOBELE ABRAHAM GEORGEWILL, JCA:<br /> I have been privileged to read in advance a draft copy of the lead judgment just delivered by my lord, JUMMAI HANNATU SANKEY JCA, and I am in complete agreement with both the reasons and conclusions reached therein, which I hereby humbly adopt as mine. I only wish to add a few words of mine to the lucid judgment. </p> <p>In law an issue of competence is of utmost importance. This is so because where the requisite jurisdiction to hear and entertain any suit or matter or cause or appeal is found to be lacking by reason of incompetence of the originating processes, that is indeed to end of the matter and it does not matter how meritorious or even how painful or difficult the result may be on the party whose originating process turns out to be incompetent. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the erudite Kayode Eso JSC, (God bless his soul) had put it so poetically and biblically thus: </p> <p>                      “Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the court on the hand labour in vain”  </p> <p>It is for this reason that the issue of competence, that is jurisdiction, can even be raised suo motu by the Court to ensure that matters before it are competent in order that the Court does not end up acting in vain and in nullity if it turns out in the end that it indeed lacked the requisite competence to have heard and determine the cause or matter or action or appeal before it.  It is simply a nullity. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Balogun V. Ohiwhere (2005) All FWLR (Pt. 281) 1724; Onuorah V. Kaduna PRC Ltd. (2005) All FWLR (Pt. 256) 1356; Okereke V. Yar’Adua (2008) All FWLR (Pt. 343) 636; Essien V. Essien (2010) All FWLR (Pt. 523) 1192; Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693; Western Steel Works Ltd. V. Iron and Steel Workers Union (1986) 2 NSCC (Vol. 17) 786 @ p. 798.</p> <p>In law, therefore, where a Court finds that it has no jurisdiction and that the proceedings are a nullity that is where the matter ends and no amount of sentiment or substantial justice or indeed over zealousness can dictate otherwise, since one cannot put something on nothing and expect it to stand. In Macfoy V. UAC Ltd. (1962)I AC 100  @ p. 160, the immortal words of the erudite law lord, Lord Denning springs forth thus:</p> <p>                      “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have an order declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” </p> <p>See also Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Barclays Bank of Nigeria V. C.B.N (1976) 1 All NLR (Pt. 1) 6; Attorney General of Lagos State V. Dosunmu (Supra) @ p. 552. </p> <p>The Notice of Appeal, in so far as appeals are concerned, is the originating process and thus must be valid and competent to confer life on an appeal. Consequently, once a Notice of appeal is found or turns out to be invalid and incompetent, as in the instant appeal, it is indeed the end of the matter. In law such an appeal commenced by an invalid Notice of Appeal is itself incompetent. It is incurably bad and thus good for nothing or anything worthwhile the precious time of this court to be considered on the merit. See Amadi V. Okoli (1977) 7 SC 57. See also Olarenwaju V. BON Ltd. (1994) 3 NWLR (Pt. 364) 622; Odofin v. Agu  ( 1992) 3 NWLR (Pt. 229) 350; Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Oketade (2010) 3 SCNJ 368. </p> <p>In Okarika V. Samuel (2013) 2 SCNJ 491, the Supreme Court pronounced with finality on the issue of invalid Notice of Appeal inter alia thus: </p> <p>                     “It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a court to adjudicate between parties on a subject matter in dispute between them. Thus a notice of appeal not signed by an appellant or his counsel is invalid as there is no stamp of authority or authentication”<br /> Again, in Shelim V. Gobang(2009) Vol. 173 LRCN 36 @ 42,   it was emphatically stated thus:</p> <p>                      “First and foremost, a notice of appeal is the basis, foundation and backbone of every appeal and where it is found to be defective or incompetent, the Court of Appeal has the power to strike it out or to discountenance any purported appeal for which there is no notice of appeal.”<br /> The above decision, though based on the strength of the succinct provisions of the Rules of this Court, vide Order 6 Rule 6 of the Court of Appeal Rules 2011, is equally true as the general position of the law whenever a Court or Tribunal finds that the originating process of any matter before it is incompetent and not initiated by due process of law, such a process or matter is invalid and a nullity and should be struck out without much ado! See Order 6 (6) of the Rules of this Court, which provides as follows: <br />                           “The Court shall have the power to strike out a notice of appeal when the appeal is not competent..........”    <br /> See also Nigerian Army V. Sgt. Samuel (2013) LPELR 20931. See also Yusuf V. Tolulu (2008) 6 SCNJ 1; Olori Motors Co. Ltd V. UBN Plc (2006) 4SCNJ 1; Okotie – Eboh V. Manager (2004) 5 SCNJ 131; Anya V. Imo Concorde Hotel (2001) 12 SCNJ 145.<br /> It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the preliminary objection challenging the competence of the appeal partly succeeds on the second ground of objection. Consequently, I too hereby strike out the Notice of Appeal and the entire appeal founded thereon for being incompetent.?</p> </div> </div> <p><strong>Counsel</strong></p> <p> Martin Milkman Esq. with P.E. Owachu Esq., appears for the Appellant.<br /> L.J. Ezekiel (Mrs.) appears for the Respondent</p></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 321 at http://nigerialii.org Tuskar Resuorces Limited -vs- Cavendish Petroleum Nig. (L 348 of 2) [2004] NGCA 15 (26 April 2004); http://nigerialii.org/ng/judgment/court-appeal/2004/15 <span class="field field--name-title field--type-string field--label-hidden">Tuskar Resuorces Limited -vs- Cavendish Petroleum Nig. (L 348 of 2) [2004] NGCA 15 (26 April 2004);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p>  </p> <p><strong>IN THE COURT OF APPEAL HOLDEN AT LAGOS</strong></p> <p><strong>CORAM</strong><br /> JAMES OGENYI OGEBE                  JUSTICE, COURT OF APPEAL<br /> DALHATU ADAMU                        JUSTICE, COURT OF APPEAL<br /> SULEIMAN GALADIMA                 JUSTICE, COURT OF APPEAL</p> <p> <strong>BETWEEN</strong><br /> TUSKAR RESUORCES LIMITED                                      APPELLANT</p> <p>AND</p> <p>CAVENDISH PETROLEUM NIG. LTD                             RESPONDENT</p> <p> </p> <div> <p>JUDGMENT (DELIVERED BY <strong>J. O. OGEBE, JCA</strong>)</p> <p>The appellant sued the respondent in the Federal High Court, Lagos seeking a number of declaratory and injunctive reliefs.</p> <p>The appellant filed a statement of claim along with the writ of summons and the respondent was duly served with the same.</p> <p>On the 27th of October 2000 the respondent filed a statement of defence out of time and served an advanced copy on the appellant’s counsel. On the 14th of November 2000 the bailiff of the court also served the statement of defence on the appellant’s counsel. On 2nd of November 2000 the respondent’s counsel filed a motion seeking an order for extension of time to file a statement of defence and to deem the statement of defence as properly filed.</p> </div> <div> <p>On the 16th of November 2002 the trial Judge granted the respondent’s application for extension of time to file its statement of defence and to deem it as properly filed. There was no order made by the trial court deeming the statement of defence as properly served.</p> <p>On the 27th of November 2000 the appellant filed a notice of discontinuance of Suit No.FHC/CS/884/2000. By an application dated 12th day of January 2001 and filed on the same date, the respondent prayed the lower court to set aside the appellant’s notice of discontinuance on the ground that the leave of the lower court was not obtained before the notice of discontinuance was filed. The appellant opposed the application and on the 18th of July 2002 the trial court granted the respondent’s application.</p> <p>Dissatisfied with that ruling the appellant appealed to this court and learned counsel for it filed a brief of argument and identified 2 issues for determination as follows:</p> <p>“i) whether the period within which the plaintiff/ appellant was required to serve a Notice of Discontinuance to enable it exercise its right to Discontinue Suit No.FHC/L/CS/884/2000?</p> <p>ii) If time did not begin to run from the 30th of October  2000, when then did time begin to run and whether the Notice of Discontinuance dated the 27th of November 2000 and filed on the same date was an abuse of court process?”</p> </div> <p>The respondent also filed a brief of argument and formulated 2 issues as follows:</p> <div> <p>“i) Whether under the circumstances the appellant should have sought leave of court before seeking to discontinue the action.</p> <p>ii) Whether the Notice of Discontinuance filed by the appellant was an abuse of process.”</p> <p>The appellant filed a reply-brief.</p> <p>The learned counsel for the appellant submitted that the processes served on him in respect of the respondent’s statement of defence prior to the grant of the respondent’s application for extension of time to file its statement of defence and to deem same as properly filed, on the 16th of November 2000 were of no consequence since that order did not include an order to deem the statement of defence properly served. The learned counsel said that up to date no service of the statement of defence has been effected on him after the court’s order granting extension of time; it follows therefore that the trial court was wrong in holding that the time to discontinue the appellant’s suit without leave of court should start running from the 30th of October 2000 and not the 16th of November 2000 when the statement of defence was deemed properly filed.</p> <p>He relied on the cases of OLASEINDE V. FHA (1999) 9 NWLR (Pt.19) 448; MINISTER OF WORKS V. TOMAS (NIG.)LTD. (2002) 2 NWLR (Pt.752) 740.</p> <p>The learned counsel for the respondent submitted that the appellant had advanced notice of the statement of defence, on the 30th of October 2000. Therefore if he wanted to discontinuance the suit without leave of court he should have done so within 14 days of that date as required by the Rules of court.</p> </div> <div> <p>He said that the trial court properly exercised its decision and this court should not interfere with it. He relied on the case of the UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt.1) 143.</p> <p>The sole question that calls for determination in this appeal is the time when the appellant’s notice of discontinuance of the suit began to run to enable it withdrew the suit without leave of court. Order 30 Rule 2(1) of the Federal High Court (Civil Procedure) Rules 2000 provides as follows:</p> <p>“The plaintiff in an action may without leave of court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or if there are two or more defendants of the defence last served by serving a notice to that effect on the defendant concerned.”</p> <p>By this provision the plaintiff has 14 days from the date of the service of statement of defence on him to discontinue his action without leave of court. It is not disputed that the appellant was served with advanced copy of the statement of defence, on the 20th of October 2000. The bailiff of the court also served the appellant’s counsel with the statement of defence which was still out of time on 14th November 2000. It was not until the 16th of November 2000 that the trial court formally granted an extension of time to file the respondent statement of defence and deemed it as properly filed. There was no prayer in the respondent’s motion that the statement of defence be deemed properly filed and served and no order was made by the trial court in respect of service.</p> <p>It is beyond dispute that all the processes served on the appellant’s counsel prior to the order of the court granting extension of time were not proper and regular services since the respondent was clearly out of time and no order had been made to regularize the filing of the respondent’s statement of defence out of time. The normal practice of court when such order is made is to deem the process properly filed and served. It is unusual to backdate the deeming as that can complicate matters for the opposing side who may wish to take steps in reaction to the process that has been deemed properly filed and served.</p> <p>Since no statement of defence was served on the appellant after the trial court had deemed it properly filed on the 16th of November 2000, I agree with the learned counsel for the appellant that up to date there has been no proper service of the statement of defence on the appellant and therefore the court was wrong in holding that time began to run against the appellant from the 30th of October 2000.</p> <p>The true position is that time has not started to run against appellant with respect to the filing of the notice of discontinuance of the suit. Even if time was deemed to have started running from the 16th of November 2000, then the notice of discontinuance filed on the 27th November 2000 was clearly within 14 days stipulated by the rules for the discontinuance of the action without leave of court. See the case of MINISTER OF WORKS V. TOMAS (NIG.) LTD. (supra). From which ever angle one looks at this matter the trial court was clearly in error in his computation of time and holding that the filing of the notice of discontinuance of the suit was an abuse of the process of the court. It surely was not an abuse of the court’s process. The appellant was exercising the option given to it by the rules of court.</p> <p>Accordingly, there is merit in the appeal and the appeal is hereby allowed. The ruling of the trial court is set aside. In its place the respondent’s motion to set aside the notice of discontinuance is dismissed. It will be a wasteful exercise to send the case back merely to give effect to the notice of discontinuance. This court is empowered by Section 16 of the Court of Appeal Act to make the appropriate order. Consequently by virtue of the notice of discontinuance filed in lower court, Suit No.FHC/SC/LC/884/2000 is hereby struck out. The respondent shall pay costs of N=7,000.00 to the appellant.</p> </div> <p><strong>J. O. OGEBE</strong></p> <p><strong>JUSTICE,</strong> <strong>COURT</strong> <strong>OF APPEAL APPEARANCE</strong></p> <p><strong>Mr.</strong> <strong>Ayodele</strong> <strong>Akintunde</strong> <strong>and</strong> <strong>Miss Ogechi Ugozi for the appellant. </strong></p> <p><strong>Miss Uche Nwokedi for the respondent.</strong></p> <p><strong>COURT OF APPEAL NIGERIA</strong></p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-13c21883e4f119c5221bcb6e57dafa85a2014e68b48dfbd6cd52903e45cbf8ba"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p>  </p> <p><strong>IN THE COURT OF APPEAL HOLDEN AT LAGOS</strong></p> <p><strong>CORAM</strong><br /> JAMES OGENYI OGEBE                  JUSTICE, COURT OF APPEAL<br /> DALHATU ADAMU                        JUSTICE, COURT OF APPEAL<br /> SULEIMAN GALADIMA                 JUSTICE, COURT OF APPEAL</p> <p> <strong>BETWEEN</strong><br /> TUSKAR RESUORCES LIMITED                                      APPELLANT</p> <p>AND</p> <p>CAVENDISH PETROLEUM NIG. LTD                             RESPONDENT</p> <p> </p> <div> <p>JUDGMENT (DELIVERED BY <strong>J. O. OGEBE, JCA</strong>)</p> <p>The appellant sued the respondent in the Federal High Court, Lagos seeking a number of declaratory and injunctive reliefs.</p> <p>The appellant filed a statement of claim along with the writ of summons and the respondent was duly served with the same.</p> <p>On the 27th of October 2000 the respondent filed a statement of defence out of time and served an advanced copy on the appellant’s counsel. On the 14th of November 2000 the bailiff of the court also served the statement of defence on the appellant’s counsel. On 2nd of November 2000 the respondent’s counsel filed a motion seeking an order for extension of time to file a statement of defence and to deem the statement of defence as properly filed.</p> </div> <div> <p>On the 16th of November 2002 the trial Judge granted the respondent’s application for extension of time to file its statement of defence and to deem it as properly filed. There was no order made by the trial court deeming the statement of defence as properly served.</p> <p>On the 27th of November 2000 the appellant filed a notice of discontinuance of Suit No.FHC/CS/884/2000. By an application dated 12th day of January 2001 and filed on the same date, the respondent prayed the lower court to set aside the appellant’s notice of discontinuance on the ground that the leave of the lower court was not obtained before the notice of discontinuance was filed. The appellant opposed the application and on the 18th of July 2002 the trial court granted the respondent’s application.</p> <p>Dissatisfied with that ruling the appellant appealed to this court and learned counsel for it filed a brief of argument and identified 2 issues for determination as follows:</p> <p>“i) whether the period within which the plaintiff/ appellant was required to serve a Notice of Discontinuance to enable it exercise its right to Discontinue Suit No.FHC/L/CS/884/2000?</p> <p>ii) If time did not begin to run from the 30th of October  2000, when then did time begin to run and whether the Notice of Discontinuance dated the 27th of November 2000 and filed on the same date was an abuse of court process?”</p> </div> <p>The respondent also filed a brief of argument and formulated 2 issues as follows:</p> <div> <p>“i) Whether under the circumstances the appellant should have sought leave of court before seeking to discontinue the action.</p> <p>ii) Whether the Notice of Discontinuance filed by the appellant was an abuse of process.”</p> <p>The appellant filed a reply-brief.</p> <p>The learned counsel for the appellant submitted that the processes served on him in respect of the respondent’s statement of defence prior to the grant of the respondent’s application for extension of time to file its statement of defence and to deem same as properly filed, on the 16th of November 2000 were of no consequence since that order did not include an order to deem the statement of defence properly served. The learned counsel said that up to date no service of the statement of defence has been effected on him after the court’s order granting extension of time; it follows therefore that the trial court was wrong in holding that the time to discontinue the appellant’s suit without leave of court should start running from the 30th of October 2000 and not the 16th of November 2000 when the statement of defence was deemed properly filed.</p> <p>He relied on the cases of OLASEINDE V. FHA (1999) 9 NWLR (Pt.19) 448; MINISTER OF WORKS V. TOMAS (NIG.)LTD. (2002) 2 NWLR (Pt.752) 740.</p> <p>The learned counsel for the respondent submitted that the appellant had advanced notice of the statement of defence, on the 30th of October 2000. Therefore if he wanted to discontinuance the suit without leave of court he should have done so within 14 days of that date as required by the Rules of court.</p> </div> <div> <p>He said that the trial court properly exercised its decision and this court should not interfere with it. He relied on the case of the UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt.1) 143.</p> <p>The sole question that calls for determination in this appeal is the time when the appellant’s notice of discontinuance of the suit began to run to enable it withdrew the suit without leave of court. Order 30 Rule 2(1) of the Federal High Court (Civil Procedure) Rules 2000 provides as follows:</p> <p>“The plaintiff in an action may without leave of court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or if there are two or more defendants of the defence last served by serving a notice to that effect on the defendant concerned.”</p> <p>By this provision the plaintiff has 14 days from the date of the service of statement of defence on him to discontinue his action without leave of court. It is not disputed that the appellant was served with advanced copy of the statement of defence, on the 20th of October 2000. The bailiff of the court also served the appellant’s counsel with the statement of defence which was still out of time on 14th November 2000. It was not until the 16th of November 2000 that the trial court formally granted an extension of time to file the respondent statement of defence and deemed it as properly filed. There was no prayer in the respondent’s motion that the statement of defence be deemed properly filed and served and no order was made by the trial court in respect of service.</p> <p>It is beyond dispute that all the processes served on the appellant’s counsel prior to the order of the court granting extension of time were not proper and regular services since the respondent was clearly out of time and no order had been made to regularize the filing of the respondent’s statement of defence out of time. The normal practice of court when such order is made is to deem the process properly filed and served. It is unusual to backdate the deeming as that can complicate matters for the opposing side who may wish to take steps in reaction to the process that has been deemed properly filed and served.</p> <p>Since no statement of defence was served on the appellant after the trial court had deemed it properly filed on the 16th of November 2000, I agree with the learned counsel for the appellant that up to date there has been no proper service of the statement of defence on the appellant and therefore the court was wrong in holding that time began to run against the appellant from the 30th of October 2000.</p> <p>The true position is that time has not started to run against appellant with respect to the filing of the notice of discontinuance of the suit. Even if time was deemed to have started running from the 16th of November 2000, then the notice of discontinuance filed on the 27th November 2000 was clearly within 14 days stipulated by the rules for the discontinuance of the action without leave of court. See the case of MINISTER OF WORKS V. TOMAS (NIG.) LTD. (supra). From which ever angle one looks at this matter the trial court was clearly in error in his computation of time and holding that the filing of the notice of discontinuance of the suit was an abuse of the process of the court. It surely was not an abuse of the court’s process. The appellant was exercising the option given to it by the rules of court.</p> <p>Accordingly, there is merit in the appeal and the appeal is hereby allowed. The ruling of the trial court is set aside. In its place the respondent’s motion to set aside the notice of discontinuance is dismissed. It will be a wasteful exercise to send the case back merely to give effect to the notice of discontinuance. This court is empowered by Section 16 of the Court of Appeal Act to make the appropriate order. Consequently by virtue of the notice of discontinuance filed in lower court, Suit No.FHC/SC/LC/884/2000 is hereby struck out. The respondent shall pay costs of N=7,000.00 to the appellant.</p> </div> <p><strong>J. O. OGEBE</strong></p> <p><strong>JUSTICE,</strong> <strong>COURT</strong> <strong>OF APPEAL APPEARANCE</strong></p> <p><strong>Mr.</strong> <strong>Ayodele</strong> <strong>Akintunde</strong> <strong>and</strong> <strong>Miss Ogechi Ugozi for the appellant. </strong></p> <p><strong>Miss Uche Nwokedi for the respondent.</strong></p> <p><strong>COURT OF APPEAL NIGERIA</strong></p> <p> </p> <p> </p></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 323 at http://nigerialii.org Alhassan v Federal Republic of Nigeria (YL 58 of 2015) [2016] NGCA 11 (27 June 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/11 <span class="field field--name-title field--type-string field--label-hidden">Alhassan v Federal Republic of Nigeria (YL 58 of 2015) [2016] NGCA 11 (27 June 2016);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p> </p> <p> </p> <p><strong>IN THE COURT OF APPEAL</strong></p> <div> <div> <div><strong>Holden at Yola</strong></div> </div> <div> <div><strong>?</strong></div> </div> <div> <p><strong>Between</strong></p> <div><strong>APPELLANT</strong></div> <p>DANTSOHO ALHASSAN</p> <p>and</p> <div>RESPONDENT</div> <p>FEDERAL REPUBLIC OF NIGERIA</p> </div> <div> <div> <p><strong>JUDGMENT<br /> (DELIVERED BY SAIDU TANKO HUSAINI, JCA)</strong><br /> This appeal is against the ruling of the Federal High Court, Yola delivered on the 11th day of May, 2015 dismissing the Motion on Notice filed by the Appellant on 18/5/2015 seeking the release of his Mitsubishi Pajaro Jeep with  registration No. CL488 JJJ from the custody of the National Drug law Enforcement Agency or the respondents.</p> <p>The background facts to this case appeal can be traced to the arrest of the appellant, Dantsoho Alhassan. It was on the 25/8/2011. He was riding in his Mercedes Benz Car with registration No. AU 927ABC when along Ngurof-Numan Road he was forced to halt by a group of officers from National Drug Law Enforcement Agency who demanded to know from the Appellant the contents of the bag he was carrying in the boot of his Mercedes Benz Car. There and then the appellant was arrested along with one other person in the car by the name Abdullahi Adamu (Pw3). At the close of investigation, the appellant and him alone was charged to Federal High Court Yola for being in possession of 7.4 kilogrammes of a substance suspected to be Cannabis Sativa (Idian hemp) contrary to and punishable under Section 19 of the National Drug Law Enforcement Act, Cap N.30 Laws of the Federation of Nigeria 2004 and prosecuted accordingly. At the close of hearing of his case at Federal High Court, Appellant was convicted and sentenced to a term of imprisonment of 3 years without an option  of fine, in the Judgment delivered at that Court on the 2nd November, 2012 in charge or Suit No. FHC/YL/128c/2011, Coram: Justice S. ,M. Shuaibu.  Facts on record reveal that on that same date that Judgment was delivered the Appellant drove himself to premises of the Federal High court in a Mitsubishi Pajero Jeep but the officers of the National Drug Law Enforcement Agency had cause to impound this car upon the appellant being convicted and sentenced for the offence he was charged. Record reveal that the appellant has since served the term of his imprisonment.</p> <p>After conviction and sentence of the appellant, counsel who prosecuted the case filed a Motion on Notice on the 1st February, 2013 seeking an order forfeiting 2 (two) vehicles belonging to the Appellant to the Federal Government of Nigeria pursuant to the provision of Sections 32 (c), 33 (1) (a) and 27 (1) (c) of the National Drug Law Enforcement Agency Act. The vehicle in question are: (i) the Mercedes Benz with Registration Number AU927ABC and, (ii) Mitsubishi Jeep with Registration Number CL 488 JJJ.</p> <p>Upon the hearing of the application, the Court in a considered ruling delivered on the 14th February, 2013 granted same and ordered the forfeiture of the Mercedes Benz Car to the Federal Government of Nigeria pursuant to section 27 (1)(c) of the National Drug Law Enforcement Act. As for the Mitsubishi Jeep, an order of interim forfeiture of same was made pending investigation into the source of the procurement of the said vehicle by the appellant. See Respondent’s additional record of Appeal from page 61, particularly at page 65. There was no appeal against the ruling. The same court had earlier on the 30th January, 2013refused the application of the appellant seeking for, among other reliefs or prayers, the release of the appellant’s Mercedes Benz Car, V-Boot and Mitsubishi Pajero Jeep to him vide the ruling delivered on the 30th January, 2013, the reason being that to grant the request would over reach on the application filed by the National Drug Law Enforcement Agency seeking to forfeit those same vehicles but which application was still pending before the court.</p> <p>On 1st December, 2014the appellant by a Motion on Notice prayed the trial Federal High Court for the release of the same Mitsubishi Pajero Jeep to the Appellant. This application was heard, refused and dismissed on the 11th May, 2015 wherein the Federal High Court in its ruling at page 74 of the record held that the Appellant:</p> <p>“is bound to explain the source of the vehicle to the NDLEA an having fault (sic) to report, he cannot ask the court to release the Jeep to him.”</p> <p>Still not done, the appellant by another Motion dated the 18th May, 2015 prayed the court below to release to him the Mitsubishi Pajero Jeep. See pages 77 – 81of the printed record. At the hearing of this application on the 8th June, 2015 the court again dismissed same and held thus:</p> <p>“This was dismissed earlier, the applicant can only go on appeal because I have become funtus offcuor (sic) on the matter. This application is dismissed for being, an abuse of courts process. The objection of the respondent has merit and it is upheld.”</p> <p>See pages 89 – 90 of the  printed record. </p> <p>The appeal to this Court is not against this decision but against the earlier ruling delivered on the 11th May, 2015, wherein by the Notice filed on the 6th July, 2015 the appellant appealed on three grounds. See pages 91 – 94 of the printed record of appeal. The record was deemed as properly transmitted to this court on the 16th May, 2016. I will now reproduce in full all the 3 (three) grounds of appeal as appear on record together with the particulars which accompany the grounds as follows:</p> <p>1.    GROUND ONE<br /> The learned trial Judge erred in law when he dismissed the Appellant’s Motion seeking an order of the lower Court releasing the Appellant’s vehicle’s Mitsubishi Pajero Jeep with registration No. 488 JJJ to the Appellant which was seized by the national Law Drug Enforcement Agency (NDLEA) and had remained in its custody.</p> <p>PARTICULARS OF ERROR:</p> <p>a.    The Appellant was convicted by the Federal High Court, Yola Division, Adamawa State on 2nd November, 2012 for the offence of Knowingly possessing cannabis sativa in Charge No. FHC/YL/128C/2011dated and filed on 15th November, 2011<br /> b.    The appellant was released from Yola Prison custody on 1st November, 2014having fully served his said term of imprisonment and while still pursuing his appeal against the conviction.<br /> c.    The Appellant’s vehicle, a Mitsubishi Pajero Jeep with Registration No. CL 488 JJJwas impounded from the Appellant in the premises of the Federal High Court, Yola Division immediately after the conviction of the Appellant by the Federal High Court, Yola Division on 2nd November, 2012and the vehicle was later moved and detained by the officer of the National Drug Law enforcement Agency (NDLEA) at their Adamawa State Command Headquarters, Jimeta up till the time the Appellant’s motion of 1st December was filed at and determined by the lower court.<br /> d.    There was no order for the forfeiture of either the Appellant’s said Mitsubishi Pajero Jeep with Registration No. CL 488 JJJ or the Appellant’s Mercedes Benz V. Boot car with which the said offence was alleged to have been committed by the Appellant and neither of the vehicle had been released to the Appellant by the National Drug Law Enforcement Agency.<br /> e.    By virtue of the provision of the National Drug Law Enforcement Agency Act, Cap No. 30 Laws of the Federation of Nigeria under which the Appellant was convicted, the Respondent ought to have obtained a final order of the Federal High Court for the forfeiture of any property, real or personal of the Appellant before such property could be permanently seized by the Respondent.<br /> f.    No order of forfeiture interim or final was produced before the trial Judge by the Respondent before the Court dismissed the Appellant’s Motion for the release of the vehicle, Mitsubishi Pajero Jeep<br /> g.    The trial Court had no basis in law to refuse and/or dismiss the appellant’s application for the release of the vehicle<br /> 2.    GROUND TWO:</p> <p>The lower Court erred in law when it held as follows:-</p> <p>“The applicant is bound to explain the source of the vehicle to the NDLEA and having faults (sic)to report, he cannot ask the court to release the Jeep to him”</p> <p>PARTICULARS OF ERROR:</p> <p>a.    There was no credible evidence before lower court that the Appellant failed, refused or neglected to make himself available for any investigation in respect of the Mitsubishi Pajero Jeep seized by the Respondent. <br /> b.    There was no evidence before the trial Court that the Appellant was contacted by the 1st Respondent or properly contacted to enable the Appellant explain the source of the vehicle seized by the Respondent.<br /> c.    Nothing in law prevented the Respondent or the national Drug Law Enforcement Agency from contacting the Appellant while serving his term of imprisonment at Yola prison in order to fully investigate the Appellant regarding the seized vehicle.<br /> d.    The judgment convicting and sentencing the Appellant on 2nd November, 2012was delivered by Honourable Justice S. M. Shuaibu and not the Honourable Justice B. B. Aliyu who dismissed the Appellant’s application for the release of the seized vehicle.<br /> e.    There was no basis in law or in fact for the holding of the learned trial judge<br /> f.    The finding and decision of the learned trial judge is a flagrant breach of the Appellant’s constitutional right to fair hearing</p> <p>3.    GROUND THREE:</p> <p>The Ruling/Judgment of the lower Court is against the weight of evidence.</p> <p>In line with the rules of this court parties on both sides filed and exchanged their briefs of argument.</p> <p>The brief of argument for the appellant dated the 18th May, 2016 was filed on the 19th May, 2016.In it he raised just one issue for determination at page 5, thus:</p> <p>“Whether having regard to the relevant provisions of the national Drug Law Enforcement Act, Cap N30, 2004, laws of the Federation of Nigeria and the affidavit evidence filed by parties in relation to the Appellant’s application filed on 1st December, 2014, the trial court ought not to have granted the said application?”(Grounds 1, 2 and 3).</p> <p>Upon the Appellant’s brief being served, the Respondent on the 20th may, 2016 and at page 6 thereof raised three (3) issues for determination of court, thus:</p> <p>i.    Whether having regard to the relevant provisions of the National drug law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004, the affidavit evidence before the court and the subsisting order of interim forfeiture of the Mitsubishi Pajero Jeep, the learned trial Judge was right in law dismissing the Appellant’s Motion for the release of the same Mitsubishi Pajero Jeep to the applicant/appellant (Ground 1, 2 &amp; 3).<br /> ii.    Whether the Appellant is not bound by the subsisting order of court for the interim attachment of the Mitsubishi Pajero Jeep to the NDLEA pending investigation, which order has not been appealed against and or discharged (Ground 1, 2 &amp; 3).<br /> iii.    Whether this present appeal is competent in the light of issues 1 and 2 above (Grounds 1 2 &amp; 3)</p> <p>On the 23rd May, 2016 the appellant filed a Reply brief of argument ostensibly in response to the brief of argument for the Respondent earlier served on him and thus the stage was set for the hearing of the appeal which came on the24th May, 2016. Parties on both sides were each represented by counsel who adopted their respective briefs of argument. Mr. Hassan T. Fajimite has urged on the court to allow the appeal. Contrariwise is the prayer coming from B. S. Abdullahi, learned counsel from the respondent. He urged us to affirm the decision of the court below, that is to say, to dismiss this appeal. </p> <p>I will examine each of these claims in the course of this exercise. But first, I want to make an observation, just one (1) and this is as regards the 3 (three) issues formulated by the Respondent in their brief of argument. Issue 1 is derived from all the three grounds of appeal. i.e grounds 1, 2 and 3. Issue 2 (two) is similarly derived from those same grounds of appeal i.e grounds 1, 2 and 3. Ditto issue No. 3 as having been derived from Grounds 1, 2 and 3 of the grounds of appeal.</p> <p>By this arrangement it means that the respondent has formulated or distilled 3 issues from each and every ground of appeal as to render incompetent all the issues distilled by them in their brief of argument. The multiplicity of issues more than the grounds of appeal should be discountenanced. It amounts to proliferation of issues which is not acceptable. See: Agbetoba V. L.S.E.C. (1991) 4 NWLR (Pt. 188) 664 Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209)578 (SC); Unilorin Vs. Oluwadare (2003) 3 NWLR (Pt. 808) Pg. 557. For this reason therefore, I will prefer and abide by the sole or lone issue formulated in the appellant’s brief of argument in addressing this appeal. The Issue again, for the avoidance of doubt is:</p> <p>Whether having regard to the relevant provisions of the national Drug Law Enforcement Agency Act, Cap N30, 2004, Laws of the Federation of Nigeria and the affidavit evidence filed by parties in relation to the Appellant’s application filed on 19th December, 2014 the trial Court ought not to have granted the said application? (Ground 1, 2and 3).</p> <p>The appellant in answer to the question raised above returned an affirmative answer in that the court below ought to have granted the request or prayers before it and release to the appellant the Mitsubishi Jeep in the custody of the respondent or the agency, the Nation Drug Law Enforcement Agency. To them, it is wrong in law and on the facts for the trial court to have dismissed that application rather than granting it. <br /> Learned appellant’s counsel alluded to the provision of the National Drug law Enforcement Agency Act CapN30, to Section 34 in particular, to submit that the provision vest on the Agency the power to trace and attach all or any asset once any person was arrested in connection with any offence under this law. He argued that the appellant having been arrested and detained he has since the 25th August, 2011 and only released on the 1st November, 2014 at the completion of his sentence, he was virtually in the custody of the respondent and the respondent had access to him, the appellant. Consequently argued the learned counsel, it was incongruous of the respondent to contend that the appellant refused to submit himself to them for the purpose of investigating the source of the acquisition of that vehicle as directed by the court below.</p> <p>According to the learned counsel for the appellant, there being no final order of forfeiture of the Mitsubishi jeep to the respondent, the court below was in error to refuse their application seeking for the release of the said vehicle and the affidavit in support of their application particularly paragraph 4 (e) and (f) at page 59 of the printed record which it is argued were not controverted by the party on the other side. Those averments he said are deemed as admitted relying on Nwosu v. I.S.E.S.A (1990) 1 NWLR (Pt. 135) 688. He referred to section 37 of National Drug Law enforcement Agency Act. This refusal to release the vehicle he said, impacted negatively on the appellant’s right to the ownership and use of his property, the Mitsubishi Jeep in reference, to Section 44 of the Constitution of the Federal Republic of Nigeria and Section 37 and 38 of the National Drug Law Enforcement Agency Act, 2004. Learned appellant’s counsel urged on this court to set aside  the order of the trial court refusing and dismissing appellant’s Motion of the 1st December, 2014, Relying on the decision in State V. Ajie (2000) 8 WRN 1. It was argued that where a trial court wrongly applied facts in an affidavit evidence or where inference drawn from those facts are erroneous or where the findings and/or conclusion of the trial court are not reasonably justified or  supported by the applicable law, an appellate court would hold such findings or conclusions of the trial court perverse and therefore set aside same especially where a miscarriage of justice has been occasioned. Such conclusion he argued, is perverse. He urged on the court to so hold and allow this appeal on this lone issue.</p> <p>Arguing per contra on the same issue counsel for the respondent is of the opinion that the interim Order of forfeiture of the Mitsubishi Pajero Jeep made by the court below and the ruling of the said court refusing the appellant’s application for the release of the said vehicle were in order.</p> <p>Drawing inspiration from the provision of the National Drug Law Enforcement Act, particularly Section 3 (1) (c) (f), 27, 31 and33 learned respondent’s counsel argued that the Act empowers the National Drug Law Enforcement Agency to identify, trace, freeze, confiscate or seize proceeds derived from drug related offences or property. Citing further the constitution of the Federal Republic of Nigeria at Section 250 (1) and Section 26 of the Act he argued that the Federal High Court has jurisdiction to adjudicate on drug related matters to grant or refuse the prayers of the appellant and the court below rightly refused the prayers for the release of the Mitsubishi Pajero Jeep to the Appellant. He submits further that even on the state of the affidavit evidence the court below was right in refusing the Motion for the release of the vehicle.<br /> In reference to the counter-affidavit filed by them (respondent) at the court below in respect of the Motion, the ruling of which give rise to this appeal was definitive when they referred to the appellant as major dealer in drug in the North-East region and a second time offender.</p> <p>On the reason why the respondent suspended further investigation of the appellant, counsel attributed this suspension to the fact that the appellant (as convict) was at that time serving a jail term in prison and he needed time and opportunity to be heard and to defend himself. Still by reference to the counter-affidavit at the court below, learned counsel in his brief argued that the appellant denied all invitations extended to him for the purpose of investigation and proof of the ownership of the Mitsubishi Jeep.</p> <p>It is further argued that the appellant is a drug peddler who has no other trade. Learned respondent’s counsel further contends that all the facts adumbrated above in the counter-affidavit before the court below were never controverted hence same all are taken as admitted relying in Asikpo V. George (2013) All FWLR (Pt. 690) 1426, 1438.</p> <p>According to the learned respondent’s counsel, those grave depositions in the counter-affidavit not having been debunked by the Appellant and the fact that the Appellant had failed to submit himself to investigation and thus frustrating same, he (appellant ) was not entitled to the order sought at the Federal High Court vide the Motion on Notice filed by him. It is further argued that evidence of proof of ownership of the Mitsubishi Jeep was imperative in an application such as this hence the appellant cannot in his claim for an order for the release of the vehicle if he failed to prove his ownership of the Mitsubishi Pajero Jeep.</p> <p>In reference to the ruling made or delivered at the court below on the 14th February, 2013 and as captured by the enrolled order dated 4th February, 2014 granting interim attachment of the Jeep to the National Drug Law Enforcement Agency or the respondent pending investigation, the Appellant cannot approach this Court for the release of the same Mitsubishi Pajero Jeep since the order of the Court below has not been appealed against or set aside. He argued that the appellant has a duty to obey the order of a court whether made for or against his interest until such order is set aside. He cited the decision in Attorney General Anambra State Vs. Attorney General of the Federation (2005) All FWLR (Pt. 268) 1557, 1584 and Odu Vs. Jolaoso (2005) All FWLR(Pt. 262) 428, 442. He submitted that the order of interim attachment of the vehicle as done at the court below has not been set aside and the same still subsists whether or not it was made by a different Judge as far as it was/is an order of the same Federal High Court.</p> <p>There being no appeal against the order of interim attachment of the property or vehicle, the appeal to this Court seeking for the release of the Mitsubishi Jeep, constitute an abuse of court process, wanting in bonafide and that same is frivolous. He cited and relied on Ogoejeofor v. Ogoejoefor (2006) All FWLR (Pt. 301) 1972, 1802-1803; A.R.C. vs. J. D. p. Construction (Nig.) Ltd (2003) All FWLR (Pt. 153) 251, 270.</p> <p>It is respondent’s further submission that once a court in satisfied that any proceedings before it is an abuse of process it has the power to strike it out. He cited Christian Outreach Ministry Inc. V. Cobham (2006) All FWLR (Pt. 310) 16 75, 1691. Learned respondents counsel urged on the court therefore to dismiss this appeal. </p> <p>In response to those submission of counsel for the Respondent is the Reply brief filed on behalf of the Appellant on the 23rd May, 2016 wherein it is argued par contra that in relation to paragraph 5.3 and 5.4 in the</p> <p>Respondent’s brief of argument on the jurisdiction of the Federal High court to entertain the case as it did and raised by the respondent in his brief was outside the scope that this appeal relates and for which reason, it is urged on the court to discountenance same. Learned counsel referred us to the decision in Chukwema V. ifeloye (2009) All FWLR (Pt. 460) 629, 650; Fawami Ali vs. Alesinloye (2000) 16 WRN 1, 37. </p> <p>In reference to the submission of the respondent’s counsel at paragraph 5.6 and 5.7oftheir brief of argument that the counter-affidavit filed by the respondent was not challenged or controverted so far as it relates to paragraph 11 of the said counter-affidavit it is argued, contrariwise that the said paragraph 11 only relate to the previous counsel, and that the appellant not being in the know of those averments, it cannot be held against him. He urged us to so hold.</p> <p>On the question of the ownership of the Mitsubishi Jeep and the proof to ownership, learned counsel for the appellant submitted that the vehicle is vested in the appellant and he argued stating in any case that the question of the ownership of the Mitsubishi Jeep was not the issue in the appeal before this court. </p> <p>On the issue of the subsisting order of forfeiture of the Jeep by the Federal High court, the appellant argued that his application was not predicated on the propriety or otherwise of the order for interim forfeiture of the said car and therefore the subsistence of the order does not in law practice the grant of the application for the release of the car since no final order for its forfeiture was made by the lower Court as at the time the application was determined.</p> <p>Arguing par contra to the submission made at in the respondent’s brief of argument at page 14 -15, learned counsel for the appellant submits that it does not amount to an abuse of court process for the appellant to seek for an order for the release of his car since no final order of the court has been made forfeiting the car. He urged on the court therefore to discountenanced the submission of the respondent and allow the appeal and grant the reliefs sought for in this appeal.</p> <p>OPINION</p> <p>In beginning this exercise I gave a short resume of the case leading to this appeal. The appellant is a convict by reason of the Judgment of the Federal High Court delivered on the 2nd November, 2012 in charge No. FHC/YL/128C/2011 This fact is not in dispute. Also not in dispute is the fact of several or multiple application which follow as a consequence of the Judgment by which the appellant was convicted and sentenced to a term of imprisonment. These various applications, reference to which I have already made, sought a variety of reliefs. <br /> It is important to note that at the time the appeal to this court was lodged there have been a number of existing orders of the Federal High Court in terms of:</p> <p>i. The ruling and orders made on the 30th January, 2013vide Suit No. FHC/YL/128C/2011wherein the court refused the grant of the application to release 2 vehicles i.e. Mercedes Benz Car. V-Boot and Mitsubishi Pajero Jeep. See page 56 of the Respondent’s additional record of appeal.<br /> ii. The ruling delivered on the 14th February, 2013videCharge No. FHC/YL/128C/2013wherein the court, (a) ordered the forfeiture of the Mercedes Benz , V-Boot car Registration No. AU 927 ABC to the Federal Government of Nigeria. (b) ordered for the interim forfeiture of the Mitsubishi jeep with Registration No. CL 488 JJJ and for the officers of the NDLEA to hold the Jeep pending investigation into the source of its procurement by the Appellant. See page 65 of the Respondents additional record of appeal<br /> iii. The ruling of the 11th May, 2015dismissing the application seeking for the release of the Mitsubishi Pajero Jeep. See page 75 – 76 of the main record of appeal.<br /> iv. The ruling of the 8th June, 2015dismissing the application by appellant filed on the 18th May, 2015 for the release of the Mitsubishi jeep. See pages 89 90 of the printed record of appeal.</p> <p>All those various applications and rulings made thereto were sought or made pursuant to the relevant provisions of the National Drug Law Enforcement Agency, Cap N. 30, LFN, 2004.Counsel in their respective briefs of argument have alluded to some of these provisions. I have in mind provisions at Sections 3 (1) (c) (f), 26, 27, 31, 32, 33, 34 36, 37 38 and 41 among others of the National Drug Law enforcement Agency Act.</p> <p>There is the need, I think to reproduce some of these provisions of the National Drug Law Enforcement Agency Act so as to derive home some points as follows:-</p> <p>“3(1) Subject to this Act and in addition to any other functions expressly conferred on it by other provisions of this Act, the Agency shall have responsibility for-<br /> (a)x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x xx x x<br /> (b)x x x x x x x x x x x x x x x x x x x x x x x x x x x x x  x x x<br /> (c)adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from drug-related offences or property whose value corresponds to such proceeds.<br />       x x x x x x x x x x x x x x x  x x x x x x x x x x x x x x x x x <br /> (f) adoption of measures which shall include coordinated preventive and repressive action introduction and maintenance of investigative and control techniques;”</p> <p>“26(1) the Federal High Court shall have exclusive jurisdiction to try offenders under this Act.</p> <p>(2) the Federal High Court shall have power to impose the penalties provided for in this Act.”</p> <p>“27(1) Any person convicted of an offence under this Act shall forfeit to the federal Government</p> <p>(a) all the assets and properties which may or are the subject of an interim order of the Federal High Court after an attachment by the agency as specified in section 34 of this Act;<br /> (b) any asset or property constituted, or derived from, any proceeds the person obtained, directly or indirectly, as a result of such offence not already disclosed in the Asset Declaration Form or not falling under paragraph 9a) of this subsection;<br /> (c) any of the person’s property or instrumentalities used in any manner or commit or to facilitate the commission of such offence not already disclosed in the Assets Declaration Form or not falling under paragraph 9a) of this subsection.</p> <p>(2) The Federal high Court in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to section 11 of this Act, that the person forfeit to the Federal Government all property described in subsection (1) of this section  ”</p> <p>“31 The following property is subject to forfeiture to the Federal Government and no other propriety right shall exist in them-<br /> (a)    Any property, real or personal, which represents the gross receipt a person obtains directly as a result of the violation of this act or which is traceable to such gross receipts;”</p> <p>“32 Without prejudice to the provision of any other law permitting the forfeiture of property, the following shall also be subject to forfeiture under this Act and no propriety right shall exist in them-<br /> (a)    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<br /> (b)    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<br /> (c)    all instrumentalities of conveyance, including aircraft, vehicles, or vessels which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of substances described in paragraph (a) or (b) of this section”</p> <p>“33(1) Any property subject to forfeiture under this Act may be seized by the Agency in the following circumstances<br /> (a) if the seizure is incidental to an arrest or search;<br /> (b) in the case of property liable to forfeiture upon process issued by the federal High Court following an application made by the Agency in accordance with the prescribed rules”</p> <p>“36 Where-<br /> (a)    the assets or properties of any person arrested for an offence under this Act,<br /> (b)    any asset or property has been seized by the Agency under this Act, the Agency shall cause an application to be made to the Federal High Court for an interim order forfeiting the property concerned to the Federal</p> <p>Government  and the Federal High Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government”</p> <p>“37 Where an arrested person convicted of an offence under this Act, the Agency, or any authorized officer, shall apply to the Federal High Court for a final order of confiscation and forfeiture of the convicted person’s assets and properties already subjected to an interim order under this Act.”</p> <p>As can be seen from the above provisions, the National Drug Law Enforcement Agency Act empowers the agency to arrest and investigate any person whom the agency reasonably suspects or believes has committed an offence under the Act and to inspect or carry out a search of any means or instrumentality which the agency believes is connected with the commission of the offence involving prohibited drugs and to impound such carriers or properties.</p> <p>In the event of conviction and sentencing of such person by the Federal High Court after prosecution, the agency shall apply to the same court for final order forfeiting any assets of the convict seized and is connected to the case, to the Federal Government of Nigeria including assets or properties of the convict already subject to an interim order pursuant to the Act. That is the law as clearly spelt out in the various provisions under reference.<br /> The issue in this current appeal is the propriety or otherwise of the refusal by the court below to release to the Appellant, the Mitsubishi Pajero Jeep, in respect which, there is an existing interim order of court forfeiting the vehicle to government by reason of the ruling delivered at the Federal High Court Yola on 14th February, 2015. That ruling or order is contingent upon an investigation being conducted into the source of the procurement of the said vehicle. It is thus not a final order. An order is interim when it is temporary or provisional. It is not absolute yet or final. It is merely a transistory order and can only become absolute or final upon the happening of the event as stated before that is, the holding of an investigation into the source of the procurement of that vehicle. See: Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419. The question now is whether that event has taken place? Has the agency fully conducted investigation into the sources of procurement of the Mitsubishi jeep as directed by the court below?</p> <p>In the brief of argument filed and exchanged by counsel on both sides, are arguments and counter-arguments as to who is to blame for the failure in the investigation being carried out by the Agency.<br /> For the counsel to the appellants, the argument has been that the appellant even though convicted and sentenced and incarcerated in prison, he was nevertheless in the custody of the respondent and as such respondents had access to him even during that period the appellant was in prison and thus carry out the desired investigation if respondent (NDLEA) so wished but they failed. See paragraphs 2.6-2.11 of Reply brief at pages 3-4.<br /> In contrast, the respondent argue that the agency was adviced to suspend further investigation into the matter to allow the appellant serve and complete his sentence in prison but upon the completion of his term of imprisonment the appellant was invited for the purpose of carrying out but further investigation but the appellant rebuffed and refused to honour that invitation. See: paragraphs 5.5 to 5.9 of the respondent brief of argument at pages 8-12.</p> <p>The submission made by counsel for the appellant upon which this appeal is hinged therefore is that since there had been no final order of court in relation to the Mitsubishi Vehicle confiscating same nor a provision in the national Drug law Enforcement Agency Act requiring the respondent to obtain a final order of the trial court before it could forfeit and therefore permanently seize any property of the appellant after conviction, then this court on appeal can set aside the order of the trial court refusing and dismissing appellant’s Motion on Notice of 1st December, 2014 seeking the release of his vehicle. See argument of counsel at paragraph 4. 16 in the appellant’s brief of argument. I do not think this submission of counsel for the appellant represent the state of the law in view of Section 37 of the National Drug law Enforcement Agency Act, cap N. 30 LFN, 2004 which provide thus;<br /> “Where an accused person is convicted of an offence under this Act, the Agency or any authorized officer, shall apply to the Federal High court for a final order of confiscation and forfeiture, of the convicted person’s assets and properties already subject to an interim order under this Act.”</p> <p>Words underlined for emphasis. There is thus a requirement for an application by the agency to the Federal High court for a final order confiscating the property as in this case, of the property of the appellant, subject of interim order. But as the facts in this case reveal, where it is required of the Agency to conduct or carry out an investigation, an application to the Federal High Court to make a final order cannot be made in my view , unless and until the investigation was completed. Thus the holding of an investigation as in this case is a condition precedent. The question still is whether that investigation into the procurement of Mitsubishi jeep was fully conducted and if not what is it that was responsible for the non-completion of that investigation. Let us take another look at the facts, in particular the facts of the application, the ruling of which gave rise to this appeal:</p> <p>The Appellant approached the Federal High Court on the 1st December, 2013by way of the Motion on Notice of the same date and prayed for an:</p> <p>“order against the respondent to release the vehicle (Mitsubishi Pajero Jeep) of the applicant with registration number CL 488 JJJ which is in the custody of the national Drug law Enforcement Agency (NDLEA) Yola command”<br /> The appellant in the supporting affidavit deposed to through one Joseph Williams, a lawyer, stated diverse facts and consistences why the application should be granted. In particular he deposed that he was released from prison in November, 2014 after serving his terms of imprisonment that he, the appellant was earlier arrested by officers of NDLEA on the 25th August, 2011 and remained in their custody for about 2 weeks before his transfer to Yola prison on the order of court, that upon his conviction on the 2nd November, 2012 he was referred to Yola prison where he served and completed his sentence, that by a final order of forfeiture his V-Boot Mercedes Benz car with which he conveyed the illegal drugs was confiscated; that his Mitsubishi jeep was impounded after his conviction on the 2nd November, 2012; that he acquired the said Jeep through his legitimate earnings as a businessman and politician; that no final order was made relating to the said vehicle but only an interim order; that he has for many years been engaged in transport business and also inherited properties from his father and proceeds he realized from the sale of one of those properties, to purchase the Mitsubishi jeep, whose Registration number is CL488 JJJ; that no investigation has been conducted by National Drug Law Enforcement Agency or any of the officials of the agency as to how he acquired the vehicle; that while he was in the custody of the national Drug law Enforcement Agency and even till date nobody has asked him to fill a declaration of asset form; that it will amount to double jeopardy for him to be subjected to the loss of his vehicle after he has already served the prescribed prison term for the offence which he committed; that there is nothing linking the said Mitsubishi Pajero Jeep with the offence for which he was convicted. See page 57-60 of the printed record.</p> <p>In the counter-affidavit filed by the respondent at the court below on 9th December, 2014 in opposition to the application are facts deposed to that the appellant had been a defendant in different cases for dealing and being in possession of prohibited drugs; that the appellant was a second time drug offender; that he was one of the major illicit drug dealers in the North Eastern Nigeria; that the investigation of the appellant in connection with the acquisition of the Jeep was suspended to enable appellant complete his jail term; that the appellant completed his jail term sometimes in November, 2014 and was invited by the agency to their office through his agent for investigation in respect of the Mitsubishi Jeep; that counsel to the respondent D.S. Abdullahi met the appellant at the premises of the Federal high Court, Yola and requested him to report to National Drug Law Enforcement agency Area Command for investigation on the Mitsubishi jeep; that  the appellant did not report for investigation; that it is not in the interest of the appellant to take further steps on the Mitsubishi jeep without hearing from him; that the respondent (NDLEA) prior to this time had no contact with the applicant; that the appellant has no other means of income than trade in illicit drug;  that the appellant refused to forward to the National Drug Law Enforcement Agency the particulars of the said Jeep for investigation and proof of ownership; that the respondent is in custody of the preliminary report of investigation on the Mitsubishi Jeep and are ready to submit same to court.</p> <p>Those are the facts placed before the Federal High Court on the 11th May, 2015 when it heard and dismissed the appellant’s application dated and filed on the 1st December, 2014. See pages 75-76 of record. it is instructive to note that by the counter-affidavit at pages 64-66 of the printed record, the respondents at their paragraph 11 (a) – (f) thereof raised issues regarding the invitation extended to the appellant to report at the office of the National Drug law Enforcement Agency at Numan with a view of proceeding to conclusions the investigation into the forfeiture of the Mitsubishi jeep but which the appellant did not respond to. This fact stands admitted so far as there is no reply to the counter-affidavit of the respondent by the Appellant on this very important point as to whose fault it was who frustrated all efforts being made to get to the root of the source of the procurement of the Jeep Car. When facts deposed to in an affidavit are unchallenged, the Court may accept those facts as true and correct. In Chief salami V. Adesina V. Commissioner Boundary Commission (1996) LPELR-148 (SC) the apex Court held:<br /> “If a party deposed to certain facts in an affidavit, his adversary, who wishes to dispute the facts so stated has a duty to swear to an affidavit to the contrary, otherwise the facts deposed to may be regarded as duly established” per Adio, JSC.</p> <p>See further decision in Ajomale V. Yaduat (No. 2) (1991) 5 SCNJ 178, 184; Attorney General, Plateau state Vs. Attorney General Nasarawa State (2005) 4 SCNJ 120, 125 Eze V. State (1985) 3 NWLR )Pt. 13) 429; Adejumo Vs. Ayantegbe (1989) 3 NWLR(pt. 110) 417. Therefore, the appellant having failed or refused to submit himself to investigation on the source of the acquisition of the Mitsubishi Jeep as directed by the Court below, was by that act of refusal or failure, is a disobedience of court Order. But parties or litigants before a court have a duty to obey  the order of court affecting them so long as they exist  hence the party in disobedience can be punished for it see Platinum bank V. Tari International Ltd (2008) LPELR-4855 (CA) ; Oshiomhole v. Federal Government of Nigeria (2005) 1 NWLR (Pt. 905) 414; Odu V. Jolaoso (2005) 1 NWLR (Pt. 950) 178. The effect of this failure of appellant to submit to investigation by the Respondents (NDLEA) means that investigation cannot be concluded or be completed and where investigation was not concluded there would be nothing or no application can be made relative to the existing order of interim forfeiture to the Federal High Court urging it to take appropriate action as to make the forfeiture absolute or final. Se: section 37 of the National Drug Law Enforcement Agency Act, Cap No. 30, 2004 Act.</p> <p>As it appears to me based of course on the facts on record, the appellant by the application made by him to the Court below, for the release of the Mitsubishi Pajero Jeep was by that singular application, seeking to benefit from his acts of disobedience to the existing orders of court which enjoin the appellant to give account of his sources of the procurement of the Mitsubishi Jeep consequent upon which an interim order of forfeiture was placed on the Jeep. This order to investigate the source of purchase of the car not having been discharged, was extant as at the time the application was made by the appellant to release the same vehicle.</p> <p>I am not impressed by the argument of counsel for the appellant that the appellant can apply for the release of the Mitsubishi Jeep Car without having to first apply to set aside the order of forfeiture made on the vehicle. I think common sense and the law dictate that an order in terms of an interim order forfeiting property belonging to another cannot just be released as a matter of course but upon that Interim Order forfeiting the property first being discharged.</p> <p>In the current case on appeal, the Mitsubishi Pajero Jeep is the common denominator so to say, in the two applications covered by the Interim order of forfeiture as well as the application seeking the release of same. The subject-matter in the two applications is the same. To get to the other and secure the release of the vehicle, the interim order of forfeiture must necessarily be discharged. The appellant having not submitted himself before the National Drug law Enforcement Agency by the respondent for investigation and also failed to get the interim order of forfeiture set aside, the court below is right in its ruling of the 11th May, 2015 when it dismissed the application brought before it in Charge No. FHC/YL/128c/2011.Those acts in my view are condition precedent to the grant of the application of the appellant for the release of the Mitsubishi Pajero Jeep and unless those conditions are met or discharged, the application by the appellant seeking as at were the release of the Mitsubishi Pajero, No. CL 488 JJJ was still-born. See: Salati V. Shelu (1986) 1 NWLR (Pt. 15) 198; Madukolu vs. Nkemdelin (1962) 1 All NLR 587 hence this appeal lacks merit and the same is dismissed on that sole issue canvassed.</p> <p>Accordingly I affirm the decision or ruling of the Federal High Court, Yola delivered on 11th May, 2015 in Charge No. FHC/YL/128C/2011. Cost is assessed in the Sum of N50, 000. 00 against the Appellant and in favour of the Respondent.</p> <p>Ordered according.</p> <p>JUMMAI HANNATU SANKEY, J.C.A.<br /> I read before now the Judgment of my learned brother, Husaini, J.C.A.<br /> I am in agreement with him that the Appeal is devoid of any merit and it should be dismissed. <br /> I hereby dismiss the Appeal and affirm the Ruling of the trial Federal High Court, Yola Division, and abide by the order as to costs.</p> <p>BIOBELE ABRAHAM GEORGEWILL, JCA:<br /> I have been afforded in advance a draft copy of the judgment just delivered by my learned brother SAIDU TANKO HUSAINI, JCA; and I am in complete agreement with the reasons and conclusions reached therein which I adopt as mine. I have nothing more to add. <br /> I too hold that the appeal lacks merit and is thus liable to be dismissed. Consequently, I too hereby dismiss the appeal for lacking in merit. I shall abide by the consequential orders made in the lead judgment.?</p> </div> </div> <div><strong>COUNSEL</strong> <div> <p>1.    Hassan Taiwo Fajimite., Esq., for the Appellant.<br /> 2.    B. S. Abdullahi, Esq., for the Respondent.</p> <p>?</p> </div> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-0e4cd3528654a5c4e381fc8032f740c87ffc1b5674877c47a59ac2aa501ea7f8"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p> </p> <p> </p> <p><strong>IN THE COURT OF APPEAL</strong></p> <div> <div> <div><strong>Holden at Yola</strong></div> </div> <div> <div><strong>?</strong></div> </div> <div> <p><strong>Between</strong></p> <div><strong>APPELLANT</strong></div> <p>DANTSOHO ALHASSAN</p> <p>and</p> <div>RESPONDENT</div> <p>FEDERAL REPUBLIC OF NIGERIA</p> </div> <div> <div> <p><strong>JUDGMENT<br /> (DELIVERED BY SAIDU TANKO HUSAINI, JCA)</strong><br /> This appeal is against the ruling of the Federal High Court, Yola delivered on the 11th day of May, 2015 dismissing the Motion on Notice filed by the Appellant on 18/5/2015 seeking the release of his Mitsubishi Pajaro Jeep with  registration No. CL488 JJJ from the custody of the National Drug law Enforcement Agency or the respondents.</p> <p>The background facts to this case appeal can be traced to the arrest of the appellant, Dantsoho Alhassan. It was on the 25/8/2011. He was riding in his Mercedes Benz Car with registration No. AU 927ABC when along Ngurof-Numan Road he was forced to halt by a group of officers from National Drug Law Enforcement Agency who demanded to know from the Appellant the contents of the bag he was carrying in the boot of his Mercedes Benz Car. There and then the appellant was arrested along with one other person in the car by the name Abdullahi Adamu (Pw3). At the close of investigation, the appellant and him alone was charged to Federal High Court Yola for being in possession of 7.4 kilogrammes of a substance suspected to be Cannabis Sativa (Idian hemp) contrary to and punishable under Section 19 of the National Drug Law Enforcement Act, Cap N.30 Laws of the Federation of Nigeria 2004 and prosecuted accordingly. At the close of hearing of his case at Federal High Court, Appellant was convicted and sentenced to a term of imprisonment of 3 years without an option  of fine, in the Judgment delivered at that Court on the 2nd November, 2012 in charge or Suit No. FHC/YL/128c/2011, Coram: Justice S. ,M. Shuaibu.  Facts on record reveal that on that same date that Judgment was delivered the Appellant drove himself to premises of the Federal High court in a Mitsubishi Pajero Jeep but the officers of the National Drug Law Enforcement Agency had cause to impound this car upon the appellant being convicted and sentenced for the offence he was charged. Record reveal that the appellant has since served the term of his imprisonment.</p> <p>After conviction and sentence of the appellant, counsel who prosecuted the case filed a Motion on Notice on the 1st February, 2013 seeking an order forfeiting 2 (two) vehicles belonging to the Appellant to the Federal Government of Nigeria pursuant to the provision of Sections 32 (c), 33 (1) (a) and 27 (1) (c) of the National Drug Law Enforcement Agency Act. The vehicle in question are: (i) the Mercedes Benz with Registration Number AU927ABC and, (ii) Mitsubishi Jeep with Registration Number CL 488 JJJ.</p> <p>Upon the hearing of the application, the Court in a considered ruling delivered on the 14th February, 2013 granted same and ordered the forfeiture of the Mercedes Benz Car to the Federal Government of Nigeria pursuant to section 27 (1)(c) of the National Drug Law Enforcement Act. As for the Mitsubishi Jeep, an order of interim forfeiture of same was made pending investigation into the source of the procurement of the said vehicle by the appellant. See Respondent’s additional record of Appeal from page 61, particularly at page 65. There was no appeal against the ruling. The same court had earlier on the 30th January, 2013refused the application of the appellant seeking for, among other reliefs or prayers, the release of the appellant’s Mercedes Benz Car, V-Boot and Mitsubishi Pajero Jeep to him vide the ruling delivered on the 30th January, 2013, the reason being that to grant the request would over reach on the application filed by the National Drug Law Enforcement Agency seeking to forfeit those same vehicles but which application was still pending before the court.</p> <p>On 1st December, 2014the appellant by a Motion on Notice prayed the trial Federal High Court for the release of the same Mitsubishi Pajero Jeep to the Appellant. This application was heard, refused and dismissed on the 11th May, 2015 wherein the Federal High Court in its ruling at page 74 of the record held that the Appellant:</p> <p>“is bound to explain the source of the vehicle to the NDLEA an having fault (sic) to report, he cannot ask the court to release the Jeep to him.”</p> <p>Still not done, the appellant by another Motion dated the 18th May, 2015 prayed the court below to release to him the Mitsubishi Pajero Jeep. See pages 77 – 81of the printed record. At the hearing of this application on the 8th June, 2015 the court again dismissed same and held thus:</p> <p>“This was dismissed earlier, the applicant can only go on appeal because I have become funtus offcuor (sic) on the matter. This application is dismissed for being, an abuse of courts process. The objection of the respondent has merit and it is upheld.”</p> <p>See pages 89 – 90 of the  printed record. </p> <p>The appeal to this Court is not against this decision but against the earlier ruling delivered on the 11th May, 2015, wherein by the Notice filed on the 6th July, 2015 the appellant appealed on three grounds. See pages 91 – 94 of the printed record of appeal. The record was deemed as properly transmitted to this court on the 16th May, 2016. I will now reproduce in full all the 3 (three) grounds of appeal as appear on record together with the particulars which accompany the grounds as follows:</p> <p>1.    GROUND ONE<br /> The learned trial Judge erred in law when he dismissed the Appellant’s Motion seeking an order of the lower Court releasing the Appellant’s vehicle’s Mitsubishi Pajero Jeep with registration No. 488 JJJ to the Appellant which was seized by the national Law Drug Enforcement Agency (NDLEA) and had remained in its custody.</p> <p>PARTICULARS OF ERROR:</p> <p>a.    The Appellant was convicted by the Federal High Court, Yola Division, Adamawa State on 2nd November, 2012 for the offence of Knowingly possessing cannabis sativa in Charge No. FHC/YL/128C/2011dated and filed on 15th November, 2011<br /> b.    The appellant was released from Yola Prison custody on 1st November, 2014having fully served his said term of imprisonment and while still pursuing his appeal against the conviction.<br /> c.    The Appellant’s vehicle, a Mitsubishi Pajero Jeep with Registration No. CL 488 JJJwas impounded from the Appellant in the premises of the Federal High Court, Yola Division immediately after the conviction of the Appellant by the Federal High Court, Yola Division on 2nd November, 2012and the vehicle was later moved and detained by the officer of the National Drug Law enforcement Agency (NDLEA) at their Adamawa State Command Headquarters, Jimeta up till the time the Appellant’s motion of 1st December was filed at and determined by the lower court.<br /> d.    There was no order for the forfeiture of either the Appellant’s said Mitsubishi Pajero Jeep with Registration No. CL 488 JJJ or the Appellant’s Mercedes Benz V. Boot car with which the said offence was alleged to have been committed by the Appellant and neither of the vehicle had been released to the Appellant by the National Drug Law Enforcement Agency.<br /> e.    By virtue of the provision of the National Drug Law Enforcement Agency Act, Cap No. 30 Laws of the Federation of Nigeria under which the Appellant was convicted, the Respondent ought to have obtained a final order of the Federal High Court for the forfeiture of any property, real or personal of the Appellant before such property could be permanently seized by the Respondent.<br /> f.    No order of forfeiture interim or final was produced before the trial Judge by the Respondent before the Court dismissed the Appellant’s Motion for the release of the vehicle, Mitsubishi Pajero Jeep<br /> g.    The trial Court had no basis in law to refuse and/or dismiss the appellant’s application for the release of the vehicle<br /> 2.    GROUND TWO:</p> <p>The lower Court erred in law when it held as follows:-</p> <p>“The applicant is bound to explain the source of the vehicle to the NDLEA and having faults (sic)to report, he cannot ask the court to release the Jeep to him”</p> <p>PARTICULARS OF ERROR:</p> <p>a.    There was no credible evidence before lower court that the Appellant failed, refused or neglected to make himself available for any investigation in respect of the Mitsubishi Pajero Jeep seized by the Respondent. <br /> b.    There was no evidence before the trial Court that the Appellant was contacted by the 1st Respondent or properly contacted to enable the Appellant explain the source of the vehicle seized by the Respondent.<br /> c.    Nothing in law prevented the Respondent or the national Drug Law Enforcement Agency from contacting the Appellant while serving his term of imprisonment at Yola prison in order to fully investigate the Appellant regarding the seized vehicle.<br /> d.    The judgment convicting and sentencing the Appellant on 2nd November, 2012was delivered by Honourable Justice S. M. Shuaibu and not the Honourable Justice B. B. Aliyu who dismissed the Appellant’s application for the release of the seized vehicle.<br /> e.    There was no basis in law or in fact for the holding of the learned trial judge<br /> f.    The finding and decision of the learned trial judge is a flagrant breach of the Appellant’s constitutional right to fair hearing</p> <p>3.    GROUND THREE:</p> <p>The Ruling/Judgment of the lower Court is against the weight of evidence.</p> <p>In line with the rules of this court parties on both sides filed and exchanged their briefs of argument.</p> <p>The brief of argument for the appellant dated the 18th May, 2016 was filed on the 19th May, 2016.In it he raised just one issue for determination at page 5, thus:</p> <p>“Whether having regard to the relevant provisions of the national Drug Law Enforcement Act, Cap N30, 2004, laws of the Federation of Nigeria and the affidavit evidence filed by parties in relation to the Appellant’s application filed on 1st December, 2014, the trial court ought not to have granted the said application?”(Grounds 1, 2 and 3).</p> <p>Upon the Appellant’s brief being served, the Respondent on the 20th may, 2016 and at page 6 thereof raised three (3) issues for determination of court, thus:</p> <p>i.    Whether having regard to the relevant provisions of the National drug law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004, the affidavit evidence before the court and the subsisting order of interim forfeiture of the Mitsubishi Pajero Jeep, the learned trial Judge was right in law dismissing the Appellant’s Motion for the release of the same Mitsubishi Pajero Jeep to the applicant/appellant (Ground 1, 2 &amp; 3).<br /> ii.    Whether the Appellant is not bound by the subsisting order of court for the interim attachment of the Mitsubishi Pajero Jeep to the NDLEA pending investigation, which order has not been appealed against and or discharged (Ground 1, 2 &amp; 3).<br /> iii.    Whether this present appeal is competent in the light of issues 1 and 2 above (Grounds 1 2 &amp; 3)</p> <p>On the 23rd May, 2016 the appellant filed a Reply brief of argument ostensibly in response to the brief of argument for the Respondent earlier served on him and thus the stage was set for the hearing of the appeal which came on the24th May, 2016. Parties on both sides were each represented by counsel who adopted their respective briefs of argument. Mr. Hassan T. Fajimite has urged on the court to allow the appeal. Contrariwise is the prayer coming from B. S. Abdullahi, learned counsel from the respondent. He urged us to affirm the decision of the court below, that is to say, to dismiss this appeal. </p> <p>I will examine each of these claims in the course of this exercise. But first, I want to make an observation, just one (1) and this is as regards the 3 (three) issues formulated by the Respondent in their brief of argument. Issue 1 is derived from all the three grounds of appeal. i.e grounds 1, 2 and 3. Issue 2 (two) is similarly derived from those same grounds of appeal i.e grounds 1, 2 and 3. Ditto issue No. 3 as having been derived from Grounds 1, 2 and 3 of the grounds of appeal.</p> <p>By this arrangement it means that the respondent has formulated or distilled 3 issues from each and every ground of appeal as to render incompetent all the issues distilled by them in their brief of argument. The multiplicity of issues more than the grounds of appeal should be discountenanced. It amounts to proliferation of issues which is not acceptable. See: Agbetoba V. L.S.E.C. (1991) 4 NWLR (Pt. 188) 664 Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209)578 (SC); Unilorin Vs. Oluwadare (2003) 3 NWLR (Pt. 808) Pg. 557. For this reason therefore, I will prefer and abide by the sole or lone issue formulated in the appellant’s brief of argument in addressing this appeal. The Issue again, for the avoidance of doubt is:</p> <p>Whether having regard to the relevant provisions of the national Drug Law Enforcement Agency Act, Cap N30, 2004, Laws of the Federation of Nigeria and the affidavit evidence filed by parties in relation to the Appellant’s application filed on 19th December, 2014 the trial Court ought not to have granted the said application? (Ground 1, 2and 3).</p> <p>The appellant in answer to the question raised above returned an affirmative answer in that the court below ought to have granted the request or prayers before it and release to the appellant the Mitsubishi Jeep in the custody of the respondent or the agency, the Nation Drug Law Enforcement Agency. To them, it is wrong in law and on the facts for the trial court to have dismissed that application rather than granting it. <br /> Learned appellant’s counsel alluded to the provision of the National Drug law Enforcement Agency Act CapN30, to Section 34 in particular, to submit that the provision vest on the Agency the power to trace and attach all or any asset once any person was arrested in connection with any offence under this law. He argued that the appellant having been arrested and detained he has since the 25th August, 2011 and only released on the 1st November, 2014 at the completion of his sentence, he was virtually in the custody of the respondent and the respondent had access to him, the appellant. Consequently argued the learned counsel, it was incongruous of the respondent to contend that the appellant refused to submit himself to them for the purpose of investigating the source of the acquisition of that vehicle as directed by the court below.</p> <p>According to the learned counsel for the appellant, there being no final order of forfeiture of the Mitsubishi jeep to the respondent, the court below was in error to refuse their application seeking for the release of the said vehicle and the affidavit in support of their application particularly paragraph 4 (e) and (f) at page 59 of the printed record which it is argued were not controverted by the party on the other side. Those averments he said are deemed as admitted relying on Nwosu v. I.S.E.S.A (1990) 1 NWLR (Pt. 135) 688. He referred to section 37 of National Drug Law enforcement Agency Act. This refusal to release the vehicle he said, impacted negatively on the appellant’s right to the ownership and use of his property, the Mitsubishi Jeep in reference, to Section 44 of the Constitution of the Federal Republic of Nigeria and Section 37 and 38 of the National Drug Law Enforcement Agency Act, 2004. Learned appellant’s counsel urged on this court to set aside  the order of the trial court refusing and dismissing appellant’s Motion of the 1st December, 2014, Relying on the decision in State V. Ajie (2000) 8 WRN 1. It was argued that where a trial court wrongly applied facts in an affidavit evidence or where inference drawn from those facts are erroneous or where the findings and/or conclusion of the trial court are not reasonably justified or  supported by the applicable law, an appellate court would hold such findings or conclusions of the trial court perverse and therefore set aside same especially where a miscarriage of justice has been occasioned. Such conclusion he argued, is perverse. He urged on the court to so hold and allow this appeal on this lone issue.</p> <p>Arguing per contra on the same issue counsel for the respondent is of the opinion that the interim Order of forfeiture of the Mitsubishi Pajero Jeep made by the court below and the ruling of the said court refusing the appellant’s application for the release of the said vehicle were in order.</p> <p>Drawing inspiration from the provision of the National Drug Law Enforcement Act, particularly Section 3 (1) (c) (f), 27, 31 and33 learned respondent’s counsel argued that the Act empowers the National Drug Law Enforcement Agency to identify, trace, freeze, confiscate or seize proceeds derived from drug related offences or property. Citing further the constitution of the Federal Republic of Nigeria at Section 250 (1) and Section 26 of the Act he argued that the Federal High Court has jurisdiction to adjudicate on drug related matters to grant or refuse the prayers of the appellant and the court below rightly refused the prayers for the release of the Mitsubishi Pajero Jeep to the Appellant. He submits further that even on the state of the affidavit evidence the court below was right in refusing the Motion for the release of the vehicle.<br /> In reference to the counter-affidavit filed by them (respondent) at the court below in respect of the Motion, the ruling of which give rise to this appeal was definitive when they referred to the appellant as major dealer in drug in the North-East region and a second time offender.</p> <p>On the reason why the respondent suspended further investigation of the appellant, counsel attributed this suspension to the fact that the appellant (as convict) was at that time serving a jail term in prison and he needed time and opportunity to be heard and to defend himself. Still by reference to the counter-affidavit at the court below, learned counsel in his brief argued that the appellant denied all invitations extended to him for the purpose of investigation and proof of the ownership of the Mitsubishi Jeep.</p> <p>It is further argued that the appellant is a drug peddler who has no other trade. Learned respondent’s counsel further contends that all the facts adumbrated above in the counter-affidavit before the court below were never controverted hence same all are taken as admitted relying in Asikpo V. George (2013) All FWLR (Pt. 690) 1426, 1438.</p> <p>According to the learned respondent’s counsel, those grave depositions in the counter-affidavit not having been debunked by the Appellant and the fact that the Appellant had failed to submit himself to investigation and thus frustrating same, he (appellant ) was not entitled to the order sought at the Federal High Court vide the Motion on Notice filed by him. It is further argued that evidence of proof of ownership of the Mitsubishi Jeep was imperative in an application such as this hence the appellant cannot in his claim for an order for the release of the vehicle if he failed to prove his ownership of the Mitsubishi Pajero Jeep.</p> <p>In reference to the ruling made or delivered at the court below on the 14th February, 2013 and as captured by the enrolled order dated 4th February, 2014 granting interim attachment of the Jeep to the National Drug Law Enforcement Agency or the respondent pending investigation, the Appellant cannot approach this Court for the release of the same Mitsubishi Pajero Jeep since the order of the Court below has not been appealed against or set aside. He argued that the appellant has a duty to obey the order of a court whether made for or against his interest until such order is set aside. He cited the decision in Attorney General Anambra State Vs. Attorney General of the Federation (2005) All FWLR (Pt. 268) 1557, 1584 and Odu Vs. Jolaoso (2005) All FWLR(Pt. 262) 428, 442. He submitted that the order of interim attachment of the vehicle as done at the court below has not been set aside and the same still subsists whether or not it was made by a different Judge as far as it was/is an order of the same Federal High Court.</p> <p>There being no appeal against the order of interim attachment of the property or vehicle, the appeal to this Court seeking for the release of the Mitsubishi Jeep, constitute an abuse of court process, wanting in bonafide and that same is frivolous. He cited and relied on Ogoejeofor v. Ogoejoefor (2006) All FWLR (Pt. 301) 1972, 1802-1803; A.R.C. vs. J. D. p. Construction (Nig.) Ltd (2003) All FWLR (Pt. 153) 251, 270.</p> <p>It is respondent’s further submission that once a court in satisfied that any proceedings before it is an abuse of process it has the power to strike it out. He cited Christian Outreach Ministry Inc. V. Cobham (2006) All FWLR (Pt. 310) 16 75, 1691. Learned respondents counsel urged on the court therefore to dismiss this appeal. </p> <p>In response to those submission of counsel for the Respondent is the Reply brief filed on behalf of the Appellant on the 23rd May, 2016 wherein it is argued par contra that in relation to paragraph 5.3 and 5.4 in the</p> <p>Respondent’s brief of argument on the jurisdiction of the Federal High court to entertain the case as it did and raised by the respondent in his brief was outside the scope that this appeal relates and for which reason, it is urged on the court to discountenance same. Learned counsel referred us to the decision in Chukwema V. ifeloye (2009) All FWLR (Pt. 460) 629, 650; Fawami Ali vs. Alesinloye (2000) 16 WRN 1, 37. </p> <p>In reference to the submission of the respondent’s counsel at paragraph 5.6 and 5.7oftheir brief of argument that the counter-affidavit filed by the respondent was not challenged or controverted so far as it relates to paragraph 11 of the said counter-affidavit it is argued, contrariwise that the said paragraph 11 only relate to the previous counsel, and that the appellant not being in the know of those averments, it cannot be held against him. He urged us to so hold.</p> <p>On the question of the ownership of the Mitsubishi Jeep and the proof to ownership, learned counsel for the appellant submitted that the vehicle is vested in the appellant and he argued stating in any case that the question of the ownership of the Mitsubishi Jeep was not the issue in the appeal before this court. </p> <p>On the issue of the subsisting order of forfeiture of the Jeep by the Federal High court, the appellant argued that his application was not predicated on the propriety or otherwise of the order for interim forfeiture of the said car and therefore the subsistence of the order does not in law practice the grant of the application for the release of the car since no final order for its forfeiture was made by the lower Court as at the time the application was determined.</p> <p>Arguing par contra to the submission made at in the respondent’s brief of argument at page 14 -15, learned counsel for the appellant submits that it does not amount to an abuse of court process for the appellant to seek for an order for the release of his car since no final order of the court has been made forfeiting the car. He urged on the court therefore to discountenanced the submission of the respondent and allow the appeal and grant the reliefs sought for in this appeal.</p> <p>OPINION</p> <p>In beginning this exercise I gave a short resume of the case leading to this appeal. The appellant is a convict by reason of the Judgment of the Federal High Court delivered on the 2nd November, 2012 in charge No. FHC/YL/128C/2011 This fact is not in dispute. Also not in dispute is the fact of several or multiple application which follow as a consequence of the Judgment by which the appellant was convicted and sentenced to a term of imprisonment. These various applications, reference to which I have already made, sought a variety of reliefs. <br /> It is important to note that at the time the appeal to this court was lodged there have been a number of existing orders of the Federal High Court in terms of:</p> <p>i. The ruling and orders made on the 30th January, 2013vide Suit No. FHC/YL/128C/2011wherein the court refused the grant of the application to release 2 vehicles i.e. Mercedes Benz Car. V-Boot and Mitsubishi Pajero Jeep. See page 56 of the Respondent’s additional record of appeal.<br /> ii. The ruling delivered on the 14th February, 2013videCharge No. FHC/YL/128C/2013wherein the court, (a) ordered the forfeiture of the Mercedes Benz , V-Boot car Registration No. AU 927 ABC to the Federal Government of Nigeria. (b) ordered for the interim forfeiture of the Mitsubishi jeep with Registration No. CL 488 JJJ and for the officers of the NDLEA to hold the Jeep pending investigation into the source of its procurement by the Appellant. See page 65 of the Respondents additional record of appeal<br /> iii. The ruling of the 11th May, 2015dismissing the application seeking for the release of the Mitsubishi Pajero Jeep. See page 75 – 76 of the main record of appeal.<br /> iv. The ruling of the 8th June, 2015dismissing the application by appellant filed on the 18th May, 2015 for the release of the Mitsubishi jeep. See pages 89 90 of the printed record of appeal.</p> <p>All those various applications and rulings made thereto were sought or made pursuant to the relevant provisions of the National Drug Law Enforcement Agency, Cap N. 30, LFN, 2004.Counsel in their respective briefs of argument have alluded to some of these provisions. I have in mind provisions at Sections 3 (1) (c) (f), 26, 27, 31, 32, 33, 34 36, 37 38 and 41 among others of the National Drug Law enforcement Agency Act.</p> <p>There is the need, I think to reproduce some of these provisions of the National Drug Law Enforcement Agency Act so as to derive home some points as follows:-</p> <p>“3(1) Subject to this Act and in addition to any other functions expressly conferred on it by other provisions of this Act, the Agency shall have responsibility for-<br /> (a)x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x xx x x<br /> (b)x x x x x x x x x x x x x x x x x x x x x x x x x x x x x  x x x<br /> (c)adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from drug-related offences or property whose value corresponds to such proceeds.<br />       x x x x x x x x x x x x x x x  x x x x x x x x x x x x x x x x x <br /> (f) adoption of measures which shall include coordinated preventive and repressive action introduction and maintenance of investigative and control techniques;”</p> <p>“26(1) the Federal High Court shall have exclusive jurisdiction to try offenders under this Act.</p> <p>(2) the Federal High Court shall have power to impose the penalties provided for in this Act.”</p> <p>“27(1) Any person convicted of an offence under this Act shall forfeit to the federal Government</p> <p>(a) all the assets and properties which may or are the subject of an interim order of the Federal High Court after an attachment by the agency as specified in section 34 of this Act;<br /> (b) any asset or property constituted, or derived from, any proceeds the person obtained, directly or indirectly, as a result of such offence not already disclosed in the Asset Declaration Form or not falling under paragraph 9a) of this subsection;<br /> (c) any of the person’s property or instrumentalities used in any manner or commit or to facilitate the commission of such offence not already disclosed in the Assets Declaration Form or not falling under paragraph 9a) of this subsection.</p> <p>(2) The Federal high Court in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to section 11 of this Act, that the person forfeit to the Federal Government all property described in subsection (1) of this section  ”</p> <p>“31 The following property is subject to forfeiture to the Federal Government and no other propriety right shall exist in them-<br /> (a)    Any property, real or personal, which represents the gross receipt a person obtains directly as a result of the violation of this act or which is traceable to such gross receipts;”</p> <p>“32 Without prejudice to the provision of any other law permitting the forfeiture of property, the following shall also be subject to forfeiture under this Act and no propriety right shall exist in them-<br /> (a)    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<br /> (b)    xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<br /> (c)    all instrumentalities of conveyance, including aircraft, vehicles, or vessels which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of substances described in paragraph (a) or (b) of this section”</p> <p>“33(1) Any property subject to forfeiture under this Act may be seized by the Agency in the following circumstances<br /> (a) if the seizure is incidental to an arrest or search;<br /> (b) in the case of property liable to forfeiture upon process issued by the federal High Court following an application made by the Agency in accordance with the prescribed rules”</p> <p>“36 Where-<br /> (a)    the assets or properties of any person arrested for an offence under this Act,<br /> (b)    any asset or property has been seized by the Agency under this Act, the Agency shall cause an application to be made to the Federal High Court for an interim order forfeiting the property concerned to the Federal</p> <p>Government  and the Federal High Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government”</p> <p>“37 Where an arrested person convicted of an offence under this Act, the Agency, or any authorized officer, shall apply to the Federal High Court for a final order of confiscation and forfeiture of the convicted person’s assets and properties already subjected to an interim order under this Act.”</p> <p>As can be seen from the above provisions, the National Drug Law Enforcement Agency Act empowers the agency to arrest and investigate any person whom the agency reasonably suspects or believes has committed an offence under the Act and to inspect or carry out a search of any means or instrumentality which the agency believes is connected with the commission of the offence involving prohibited drugs and to impound such carriers or properties.</p> <p>In the event of conviction and sentencing of such person by the Federal High Court after prosecution, the agency shall apply to the same court for final order forfeiting any assets of the convict seized and is connected to the case, to the Federal Government of Nigeria including assets or properties of the convict already subject to an interim order pursuant to the Act. That is the law as clearly spelt out in the various provisions under reference.<br /> The issue in this current appeal is the propriety or otherwise of the refusal by the court below to release to the Appellant, the Mitsubishi Pajero Jeep, in respect which, there is an existing interim order of court forfeiting the vehicle to government by reason of the ruling delivered at the Federal High Court Yola on 14th February, 2015. That ruling or order is contingent upon an investigation being conducted into the source of the procurement of the said vehicle. It is thus not a final order. An order is interim when it is temporary or provisional. It is not absolute yet or final. It is merely a transistory order and can only become absolute or final upon the happening of the event as stated before that is, the holding of an investigation into the source of the procurement of that vehicle. See: Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419. The question now is whether that event has taken place? Has the agency fully conducted investigation into the sources of procurement of the Mitsubishi jeep as directed by the court below?</p> <p>In the brief of argument filed and exchanged by counsel on both sides, are arguments and counter-arguments as to who is to blame for the failure in the investigation being carried out by the Agency.<br /> For the counsel to the appellants, the argument has been that the appellant even though convicted and sentenced and incarcerated in prison, he was nevertheless in the custody of the respondent and as such respondents had access to him even during that period the appellant was in prison and thus carry out the desired investigation if respondent (NDLEA) so wished but they failed. See paragraphs 2.6-2.11 of Reply brief at pages 3-4.<br /> In contrast, the respondent argue that the agency was adviced to suspend further investigation into the matter to allow the appellant serve and complete his sentence in prison but upon the completion of his term of imprisonment the appellant was invited for the purpose of carrying out but further investigation but the appellant rebuffed and refused to honour that invitation. See: paragraphs 5.5 to 5.9 of the respondent brief of argument at pages 8-12.</p> <p>The submission made by counsel for the appellant upon which this appeal is hinged therefore is that since there had been no final order of court in relation to the Mitsubishi Vehicle confiscating same nor a provision in the national Drug law Enforcement Agency Act requiring the respondent to obtain a final order of the trial court before it could forfeit and therefore permanently seize any property of the appellant after conviction, then this court on appeal can set aside the order of the trial court refusing and dismissing appellant’s Motion on Notice of 1st December, 2014 seeking the release of his vehicle. See argument of counsel at paragraph 4. 16 in the appellant’s brief of argument. I do not think this submission of counsel for the appellant represent the state of the law in view of Section 37 of the National Drug law Enforcement Agency Act, cap N. 30 LFN, 2004 which provide thus;<br /> “Where an accused person is convicted of an offence under this Act, the Agency or any authorized officer, shall apply to the Federal High court for a final order of confiscation and forfeiture, of the convicted person’s assets and properties already subject to an interim order under this Act.”</p> <p>Words underlined for emphasis. There is thus a requirement for an application by the agency to the Federal High court for a final order confiscating the property as in this case, of the property of the appellant, subject of interim order. But as the facts in this case reveal, where it is required of the Agency to conduct or carry out an investigation, an application to the Federal High Court to make a final order cannot be made in my view , unless and until the investigation was completed. Thus the holding of an investigation as in this case is a condition precedent. The question still is whether that investigation into the procurement of Mitsubishi jeep was fully conducted and if not what is it that was responsible for the non-completion of that investigation. Let us take another look at the facts, in particular the facts of the application, the ruling of which gave rise to this appeal:</p> <p>The Appellant approached the Federal High Court on the 1st December, 2013by way of the Motion on Notice of the same date and prayed for an:</p> <p>“order against the respondent to release the vehicle (Mitsubishi Pajero Jeep) of the applicant with registration number CL 488 JJJ which is in the custody of the national Drug law Enforcement Agency (NDLEA) Yola command”<br /> The appellant in the supporting affidavit deposed to through one Joseph Williams, a lawyer, stated diverse facts and consistences why the application should be granted. In particular he deposed that he was released from prison in November, 2014 after serving his terms of imprisonment that he, the appellant was earlier arrested by officers of NDLEA on the 25th August, 2011 and remained in their custody for about 2 weeks before his transfer to Yola prison on the order of court, that upon his conviction on the 2nd November, 2012 he was referred to Yola prison where he served and completed his sentence, that by a final order of forfeiture his V-Boot Mercedes Benz car with which he conveyed the illegal drugs was confiscated; that his Mitsubishi jeep was impounded after his conviction on the 2nd November, 2012; that he acquired the said Jeep through his legitimate earnings as a businessman and politician; that no final order was made relating to the said vehicle but only an interim order; that he has for many years been engaged in transport business and also inherited properties from his father and proceeds he realized from the sale of one of those properties, to purchase the Mitsubishi jeep, whose Registration number is CL488 JJJ; that no investigation has been conducted by National Drug Law Enforcement Agency or any of the officials of the agency as to how he acquired the vehicle; that while he was in the custody of the national Drug law Enforcement Agency and even till date nobody has asked him to fill a declaration of asset form; that it will amount to double jeopardy for him to be subjected to the loss of his vehicle after he has already served the prescribed prison term for the offence which he committed; that there is nothing linking the said Mitsubishi Pajero Jeep with the offence for which he was convicted. See page 57-60 of the printed record.</p> <p>In the counter-affidavit filed by the respondent at the court below on 9th December, 2014 in opposition to the application are facts deposed to that the appellant had been a defendant in different cases for dealing and being in possession of prohibited drugs; that the appellant was a second time drug offender; that he was one of the major illicit drug dealers in the North Eastern Nigeria; that the investigation of the appellant in connection with the acquisition of the Jeep was suspended to enable appellant complete his jail term; that the appellant completed his jail term sometimes in November, 2014 and was invited by the agency to their office through his agent for investigation in respect of the Mitsubishi Jeep; that counsel to the respondent D.S. Abdullahi met the appellant at the premises of the Federal high Court, Yola and requested him to report to National Drug Law Enforcement agency Area Command for investigation on the Mitsubishi jeep; that  the appellant did not report for investigation; that it is not in the interest of the appellant to take further steps on the Mitsubishi jeep without hearing from him; that the respondent (NDLEA) prior to this time had no contact with the applicant; that the appellant has no other means of income than trade in illicit drug;  that the appellant refused to forward to the National Drug Law Enforcement Agency the particulars of the said Jeep for investigation and proof of ownership; that the respondent is in custody of the preliminary report of investigation on the Mitsubishi Jeep and are ready to submit same to court.</p> <p>Those are the facts placed before the Federal High Court on the 11th May, 2015 when it heard and dismissed the appellant’s application dated and filed on the 1st December, 2014. See pages 75-76 of record. it is instructive to note that by the counter-affidavit at pages 64-66 of the printed record, the respondents at their paragraph 11 (a) – (f) thereof raised issues regarding the invitation extended to the appellant to report at the office of the National Drug law Enforcement Agency at Numan with a view of proceeding to conclusions the investigation into the forfeiture of the Mitsubishi jeep but which the appellant did not respond to. This fact stands admitted so far as there is no reply to the counter-affidavit of the respondent by the Appellant on this very important point as to whose fault it was who frustrated all efforts being made to get to the root of the source of the procurement of the Jeep Car. When facts deposed to in an affidavit are unchallenged, the Court may accept those facts as true and correct. In Chief salami V. Adesina V. Commissioner Boundary Commission (1996) LPELR-148 (SC) the apex Court held:<br /> “If a party deposed to certain facts in an affidavit, his adversary, who wishes to dispute the facts so stated has a duty to swear to an affidavit to the contrary, otherwise the facts deposed to may be regarded as duly established” per Adio, JSC.</p> <p>See further decision in Ajomale V. Yaduat (No. 2) (1991) 5 SCNJ 178, 184; Attorney General, Plateau state Vs. Attorney General Nasarawa State (2005) 4 SCNJ 120, 125 Eze V. State (1985) 3 NWLR )Pt. 13) 429; Adejumo Vs. Ayantegbe (1989) 3 NWLR(pt. 110) 417. Therefore, the appellant having failed or refused to submit himself to investigation on the source of the acquisition of the Mitsubishi Jeep as directed by the Court below, was by that act of refusal or failure, is a disobedience of court Order. But parties or litigants before a court have a duty to obey  the order of court affecting them so long as they exist  hence the party in disobedience can be punished for it see Platinum bank V. Tari International Ltd (2008) LPELR-4855 (CA) ; Oshiomhole v. Federal Government of Nigeria (2005) 1 NWLR (Pt. 905) 414; Odu V. Jolaoso (2005) 1 NWLR (Pt. 950) 178. The effect of this failure of appellant to submit to investigation by the Respondents (NDLEA) means that investigation cannot be concluded or be completed and where investigation was not concluded there would be nothing or no application can be made relative to the existing order of interim forfeiture to the Federal High Court urging it to take appropriate action as to make the forfeiture absolute or final. Se: section 37 of the National Drug Law Enforcement Agency Act, Cap No. 30, 2004 Act.</p> <p>As it appears to me based of course on the facts on record, the appellant by the application made by him to the Court below, for the release of the Mitsubishi Pajero Jeep was by that singular application, seeking to benefit from his acts of disobedience to the existing orders of court which enjoin the appellant to give account of his sources of the procurement of the Mitsubishi Jeep consequent upon which an interim order of forfeiture was placed on the Jeep. This order to investigate the source of purchase of the car not having been discharged, was extant as at the time the application was made by the appellant to release the same vehicle.</p> <p>I am not impressed by the argument of counsel for the appellant that the appellant can apply for the release of the Mitsubishi Jeep Car without having to first apply to set aside the order of forfeiture made on the vehicle. I think common sense and the law dictate that an order in terms of an interim order forfeiting property belonging to another cannot just be released as a matter of course but upon that Interim Order forfeiting the property first being discharged.</p> <p>In the current case on appeal, the Mitsubishi Pajero Jeep is the common denominator so to say, in the two applications covered by the Interim order of forfeiture as well as the application seeking the release of same. The subject-matter in the two applications is the same. To get to the other and secure the release of the vehicle, the interim order of forfeiture must necessarily be discharged. The appellant having not submitted himself before the National Drug law Enforcement Agency by the respondent for investigation and also failed to get the interim order of forfeiture set aside, the court below is right in its ruling of the 11th May, 2015 when it dismissed the application brought before it in Charge No. FHC/YL/128c/2011.Those acts in my view are condition precedent to the grant of the application of the appellant for the release of the Mitsubishi Pajero Jeep and unless those conditions are met or discharged, the application by the appellant seeking as at were the release of the Mitsubishi Pajero, No. CL 488 JJJ was still-born. See: Salati V. Shelu (1986) 1 NWLR (Pt. 15) 198; Madukolu vs. Nkemdelin (1962) 1 All NLR 587 hence this appeal lacks merit and the same is dismissed on that sole issue canvassed.</p> <p>Accordingly I affirm the decision or ruling of the Federal High Court, Yola delivered on 11th May, 2015 in Charge No. FHC/YL/128C/2011. Cost is assessed in the Sum of N50, 000. 00 against the Appellant and in favour of the Respondent.</p> <p>Ordered according.</p> <p>JUMMAI HANNATU SANKEY, J.C.A.<br /> I read before now the Judgment of my learned brother, Husaini, J.C.A.<br /> I am in agreement with him that the Appeal is devoid of any merit and it should be dismissed. <br /> I hereby dismiss the Appeal and affirm the Ruling of the trial Federal High Court, Yola Division, and abide by the order as to costs.</p> <p>BIOBELE ABRAHAM GEORGEWILL, JCA:<br /> I have been afforded in advance a draft copy of the judgment just delivered by my learned brother SAIDU TANKO HUSAINI, JCA; and I am in complete agreement with the reasons and conclusions reached therein which I adopt as mine. I have nothing more to add. <br /> I too hold that the appeal lacks merit and is thus liable to be dismissed. Consequently, I too hereby dismiss the appeal for lacking in merit. I shall abide by the consequential orders made in the lead judgment.?</p> </div> </div> <div><strong>COUNSEL</strong> <div> <p>1.    Hassan Taiwo Fajimite., Esq., for the Appellant.<br /> 2.    B. S. Abdullahi, Esq., for the Respondent.</p> <p>?</p> </div> </div> </div></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 324 at http://nigerialii.org Zeek Oil Nig.Ltd & Chief (dr.) Ezekiel Ainabe -vs-nigerian Deposit Insurance And Ors Corporation (L 83 of 7) [2007] NGCA 16 (31 December 2007); http://nigerialii.org/ng/judgment/court-appeal/2007/16 <span class="field field--name-title field--type-string field--label-hidden">Zeek Oil Nig.Ltd &amp; Chief (dr.) Ezekiel Ainabe -vs-nigerian Deposit Insurance And Ors Corporation (L 83 of 7) [2007] NGCA 16 (31 December 2007);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> <br />  </p> <p><strong>IN THE COURT OF APPEAL HOLDEN AT LAGOS</strong></p> <p><strong>CORAM</strong><br /> C. B. OGUNBIYI                               JUSTICE, COURT OF APPEAL</p> <p> <strong>BETWEEN</strong><br /> 1. ZEEK OIL NIGERIA LIMITED                                                                  APPELLANTS/APPLICANTS<br /> 2. CHIEF (DR.) EZEKIEL AINABE    <br /> AND<br /> 1.    NIGERIAN DEPOSIT INSURANCE CORPORATION<br /> 2.    PERMANENT SECRETARY MINISTRY OF DEFENCE                        RESPONDENTS</p> <div> <p> </p> <p><strong>RULING</strong></p> <p><strong>(DELIVERED BY CLARA BATA OGUNBIYI, JCA)</strong></p> </div> <p>The motion on notice is dated 9th February, 2007 and filed the same day and seeks the following reliefs:- 1 .“AN ORDER GRANTING EXTENTION OF TIME within which the defendants may seek leave to appeal against the Ruling of the High Court of Lagos State delivered on 4th April, 2005 in Suit No.LD/3348/2000 on grounds of facts and mixed law and facts.</p> <div> <p>2. AN ORDER GRANTING LEAVE to the defendants to appeal against the Ruling of the High Court of Lagos State delivered on the 4th of April, 2005 in Suit No.LD/3348/2000 on grounds of facts and mixed law and facts.</p> <p>3. AN ORDER GRANTING EXTENTION OF TIME within which the defendants may file their Notice of Appeal.</p> <p>4. SUCH FURTHER OR OTHER ORDER(S) that the Honourable Court may deem fit to make in the circumstances.”</p> <p>In support of the application is an affidavit of six paragraphs. Exhibited and attached is Exhibit AA the Certified True Copy of the Ruling sought to be appealed against. Several other exhibits in terms of correspondences were attached inclusive of the proposed Notice of Appeal marked Exhibit ‘EE’. Submitting in substantiation and soliciting for the court’s discretion in their favour, the learned counsel Mr. R. Okonokhua Esq. for the applicants relied in particular on paragraph 4(K), (M), (N) and (P), exhibits AA and also EE supra.</p> <p>Further reference was made to the case of Prince Ashimu Isiaka and Others v Saidi Ogundimu &amp; Other (2006) 13 NWLR (Pt.997) page 401 at 411 and 414. Opposing the motion is a counter affidavit filed by the respondent on the 18th April, 2007 and upon which the learned counsel Mr. A. A. Adewunmi copiously relied and urged that the application be refused and dismissed.</p> <p>Further reasons enumerated and supporting the grounding of the reliefs were restated by the said counsel as follows:-</p> </div> <p>(1) It is common ground between parties that the judgment sought to be appealed was based on an admission.</p> <div> <p>(2) It was also delivered on the 4th April, 2005 and finally,</p> <p>(3) It is also not in dispute that execution was levied on the 14th November 2005.</p> <p>The learned counsel further submitted that it was only consequent to the foregoing that the applicants paid the principal sum and following which the respondents magnanimously allowed them to retrieve their detained properties from the Deputy Sheriff. This was in the believe that the applicants would make good to redeem the pledge and pay the balance of the outstanding.</p> <p>Learned counsel firmly relied on exhibits AA and BB and reiterated the applicants’ failure to satisfy the two conditions required to earn the court’s favour. He further argued that, going by the affidavit and facts deposed therein there is nothing to show that the applicants were engaged in any form of negotiation, which of itself was not a good reason occasioning the failure warranting the exercise of discretion sought for. Learned counsel therefore urged for an outright dismissal of the application as lacking in merit. Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 clearly enumerates the situations where an appeal lies as of right to this court from the decisions of the Federal High Court or a High Court. Section 242 however relates to appeals with leave.</p> <p>With the application at hand seeking an order to appeal on grounds of facts and mixed law and facts, the leave of this court is therefore of a necessity. It is trite law that the granting of the application of this nature is not a matter of course but is dependent upon a judicial and judicious exercise of the use of discretion. Order 7 rule 10(1) and (2) of the rules of court 2007 is very clear and succinct:- “10(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above. (2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.</p> </div> <div> <p>When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.” Also from the affidavit evidence before me, paragraph 4 sub paragraph (K), (M), (N) and (P) reproduced state as follows:- “(K) That the delay of appealing was as a result of subsequent negotiations between claimant and defendants on the issue of interest and defendants further awaited the substitution of parties (the claimant) before filing necessary application for extension of time to appeal at the Court of Appeal. (M)</p> <p>That the defendants have substantial ground to go on appeal against the award of interest as shown in Exhibit “EE” now shown to me being the proposed Notice of Appeal.</p> <p>(N) That the Notice of Appeal contains substantial grounds raising vital issues of law bordering on inadmissible piece of evidence.</p> <p>(P) That as a result of negotiation of interest and subsequent disagreement between the parties both orally and in writing the time within which the applicants may appeal had lapsed and they now require the leave and order of this Honourable Court to extend the time to file their appeal.”</p> <p>From the counter affidavit deposition against the application, it is of significance to state that none of the paragraphs had overtly replied to the 1st leg to sub-paragraph 4(K) of the affidavit in support. In other words, that the reason given for the delay “was as a result of subsequent negotiations between claimant and defendants on the issue of interest………..” While the counter affidavit at paragraph 12 responded to the second leg of sub paragraph 4(K) of the affidavit, it does not however relate to or cover the first leg in respect of which there is no response.</p> </div> <div> <p>The consequential effect is that the said first leg has neither been controverted nor denied by the respondent. This conclusion is fortified by the decision in the case of Isiaka v Ogundimu under reference supra, wherein the two issues raised therein were:-</p> <p>(1) “Whether the appellants showed by affidavit good and substantial reasons for their failure to appeal within the prescribed time and</p> <p>(2) Whether the Court of Appeal rightly exercised its discretion in refusing the application for extension of time within which to appeal.”</p> <p>The facts of that case briefly were that the judgment of the High Court was given against the appellants on the 18/5/90. By motion dated 19/11/91, the appellants applied to the Court of Appeal for an extension of time within which to seek leave to appeal, leave to appeal and extension of time to appeal, in other words for the trinity prayers. The affidavit in support revealed that the failure to file the appeal within time was a result of a wrong information given by their former counsel and this the appellants came to know only after the demise of the said counsel.</p> <p>Another counsel was subsequently briefed to pursue the appeal but that the prescribed time for filing an appeal had since expired. Although the respondents filed counter affidavits against the prayers sought, they did not in any way contradict the averments in the affidavit in support of the application. The Court of Appeal non-the-less dismissed the motion on the ground that the applicants did not successfully explain why they did not appeal within time.</p> <p>On appeal to the Supreme Court against the dismissal, their Lordships of the apex court were unanimous in allowing the appeal. Their Lordships in their findings restated and emphasized the two conditions laid down in Order 3 rule 4(2) of the Court of Appeal Rules 1981 which is synonymous to Order 7 rule 10(2) of the 2007 rules. At pages 411 and 414 of the report their Lordships per Kutigi JSC (as he then was) had this to say:- “The two conditions must be satisfied together at the same time. If one fails, the entire application will fail (see order 3 rule 4(2) of the Court of Appeal Rules, (1981) (as amended); Ibodo v Enarofia (1980) 5-7 SC 42; Williams v Hope Rising Voluntary Funds Society (1982) 1-2 SC 145. …….</p> </div> <p>The affidavit in support of the application must state clearly the reasons for the delay in complying with the rules of court…………………………………………………………….. On reading through the affidavit above, it would appear that the applicants have sufficiently explained why they did not appeal within time. The affidavit has not in any material particular been contradicted by the counter-affidvits of the respondents.” The appeal was in the result allowed and the ruling of the Court of Appeal was set aside while the time was extended and granted the appellants/applicants to file their notice and grounds of appeal within 60 days from the date of making the order.</p> <p>In the same vein and having regard to the totality of the application before me, I am of the firm view that the course of justice would best be served if the indulgence is granted the applicants. Consequently, I therefore make an order extending the time within which the applicants are to seek leave to appeal, leave to appeal and extending the time within which to file their Notice of Appeal against the ruling of the High Court of Lagos State delivered on 4th April, 2005 on grounds of facts and mixed law and facts. The said proposed notice of appeal exhibited to the motion paper and marked exhibit EE is to be filed within 21 days from today.</p> <p><strong>CLARA BATA OGUNBIYI, JUSTICE, COURT OF APPEAL</strong></p> <p><strong>Counsel: </strong></p> <p>R. Okonokhua for the applicants.</p> <p>A. A. Adewunmi for the respondents with him Mrs. O. Jimoh.</p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-53b62c6a2a4de80a09f4dcb78ae7b8c63320dad75817b1567321c5377e2de897"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> <br />  </p> <p><strong>IN THE COURT OF APPEAL HOLDEN AT LAGOS</strong></p> <p><strong>CORAM</strong><br /> C. B. OGUNBIYI                               JUSTICE, COURT OF APPEAL</p> <p> <strong>BETWEEN</strong><br /> 1. ZEEK OIL NIGERIA LIMITED                                                                  APPELLANTS/APPLICANTS<br /> 2. CHIEF (DR.) EZEKIEL AINABE    <br /> AND<br /> 1.    NIGERIAN DEPOSIT INSURANCE CORPORATION<br /> 2.    PERMANENT SECRETARY MINISTRY OF DEFENCE                        RESPONDENTS</p> <div> <p> </p> <p><strong>RULING</strong></p> <p><strong>(DELIVERED BY CLARA BATA OGUNBIYI, JCA)</strong></p> </div> <p>The motion on notice is dated 9th February, 2007 and filed the same day and seeks the following reliefs:- 1 .“AN ORDER GRANTING EXTENTION OF TIME within which the defendants may seek leave to appeal against the Ruling of the High Court of Lagos State delivered on 4th April, 2005 in Suit No.LD/3348/2000 on grounds of facts and mixed law and facts.</p> <div> <p>2. AN ORDER GRANTING LEAVE to the defendants to appeal against the Ruling of the High Court of Lagos State delivered on the 4th of April, 2005 in Suit No.LD/3348/2000 on grounds of facts and mixed law and facts.</p> <p>3. AN ORDER GRANTING EXTENTION OF TIME within which the defendants may file their Notice of Appeal.</p> <p>4. SUCH FURTHER OR OTHER ORDER(S) that the Honourable Court may deem fit to make in the circumstances.”</p> <p>In support of the application is an affidavit of six paragraphs. Exhibited and attached is Exhibit AA the Certified True Copy of the Ruling sought to be appealed against. Several other exhibits in terms of correspondences were attached inclusive of the proposed Notice of Appeal marked Exhibit ‘EE’. Submitting in substantiation and soliciting for the court’s discretion in their favour, the learned counsel Mr. R. Okonokhua Esq. for the applicants relied in particular on paragraph 4(K), (M), (N) and (P), exhibits AA and also EE supra.</p> <p>Further reference was made to the case of Prince Ashimu Isiaka and Others v Saidi Ogundimu &amp; Other (2006) 13 NWLR (Pt.997) page 401 at 411 and 414. Opposing the motion is a counter affidavit filed by the respondent on the 18th April, 2007 and upon which the learned counsel Mr. A. A. Adewunmi copiously relied and urged that the application be refused and dismissed.</p> <p>Further reasons enumerated and supporting the grounding of the reliefs were restated by the said counsel as follows:-</p> </div> <p>(1) It is common ground between parties that the judgment sought to be appealed was based on an admission.</p> <div> <p>(2) It was also delivered on the 4th April, 2005 and finally,</p> <p>(3) It is also not in dispute that execution was levied on the 14th November 2005.</p> <p>The learned counsel further submitted that it was only consequent to the foregoing that the applicants paid the principal sum and following which the respondents magnanimously allowed them to retrieve their detained properties from the Deputy Sheriff. This was in the believe that the applicants would make good to redeem the pledge and pay the balance of the outstanding.</p> <p>Learned counsel firmly relied on exhibits AA and BB and reiterated the applicants’ failure to satisfy the two conditions required to earn the court’s favour. He further argued that, going by the affidavit and facts deposed therein there is nothing to show that the applicants were engaged in any form of negotiation, which of itself was not a good reason occasioning the failure warranting the exercise of discretion sought for. Learned counsel therefore urged for an outright dismissal of the application as lacking in merit. Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 clearly enumerates the situations where an appeal lies as of right to this court from the decisions of the Federal High Court or a High Court. Section 242 however relates to appeals with leave.</p> <p>With the application at hand seeking an order to appeal on grounds of facts and mixed law and facts, the leave of this court is therefore of a necessity. It is trite law that the granting of the application of this nature is not a matter of course but is dependent upon a judicial and judicious exercise of the use of discretion. Order 7 rule 10(1) and (2) of the rules of court 2007 is very clear and succinct:- “10(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above. (2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.</p> </div> <div> <p>When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.” Also from the affidavit evidence before me, paragraph 4 sub paragraph (K), (M), (N) and (P) reproduced state as follows:- “(K) That the delay of appealing was as a result of subsequent negotiations between claimant and defendants on the issue of interest and defendants further awaited the substitution of parties (the claimant) before filing necessary application for extension of time to appeal at the Court of Appeal. (M)</p> <p>That the defendants have substantial ground to go on appeal against the award of interest as shown in Exhibit “EE” now shown to me being the proposed Notice of Appeal.</p> <p>(N) That the Notice of Appeal contains substantial grounds raising vital issues of law bordering on inadmissible piece of evidence.</p> <p>(P) That as a result of negotiation of interest and subsequent disagreement between the parties both orally and in writing the time within which the applicants may appeal had lapsed and they now require the leave and order of this Honourable Court to extend the time to file their appeal.”</p> <p>From the counter affidavit deposition against the application, it is of significance to state that none of the paragraphs had overtly replied to the 1st leg to sub-paragraph 4(K) of the affidavit in support. In other words, that the reason given for the delay “was as a result of subsequent negotiations between claimant and defendants on the issue of interest………..” While the counter affidavit at paragraph 12 responded to the second leg of sub paragraph 4(K) of the affidavit, it does not however relate to or cover the first leg in respect of which there is no response.</p> </div> <div> <p>The consequential effect is that the said first leg has neither been controverted nor denied by the respondent. This conclusion is fortified by the decision in the case of Isiaka v Ogundimu under reference supra, wherein the two issues raised therein were:-</p> <p>(1) “Whether the appellants showed by affidavit good and substantial reasons for their failure to appeal within the prescribed time and</p> <p>(2) Whether the Court of Appeal rightly exercised its discretion in refusing the application for extension of time within which to appeal.”</p> <p>The facts of that case briefly were that the judgment of the High Court was given against the appellants on the 18/5/90. By motion dated 19/11/91, the appellants applied to the Court of Appeal for an extension of time within which to seek leave to appeal, leave to appeal and extension of time to appeal, in other words for the trinity prayers. The affidavit in support revealed that the failure to file the appeal within time was a result of a wrong information given by their former counsel and this the appellants came to know only after the demise of the said counsel.</p> <p>Another counsel was subsequently briefed to pursue the appeal but that the prescribed time for filing an appeal had since expired. Although the respondents filed counter affidavits against the prayers sought, they did not in any way contradict the averments in the affidavit in support of the application. The Court of Appeal non-the-less dismissed the motion on the ground that the applicants did not successfully explain why they did not appeal within time.</p> <p>On appeal to the Supreme Court against the dismissal, their Lordships of the apex court were unanimous in allowing the appeal. Their Lordships in their findings restated and emphasized the two conditions laid down in Order 3 rule 4(2) of the Court of Appeal Rules 1981 which is synonymous to Order 7 rule 10(2) of the 2007 rules. At pages 411 and 414 of the report their Lordships per Kutigi JSC (as he then was) had this to say:- “The two conditions must be satisfied together at the same time. If one fails, the entire application will fail (see order 3 rule 4(2) of the Court of Appeal Rules, (1981) (as amended); Ibodo v Enarofia (1980) 5-7 SC 42; Williams v Hope Rising Voluntary Funds Society (1982) 1-2 SC 145. …….</p> </div> <p>The affidavit in support of the application must state clearly the reasons for the delay in complying with the rules of court…………………………………………………………….. On reading through the affidavit above, it would appear that the applicants have sufficiently explained why they did not appeal within time. The affidavit has not in any material particular been contradicted by the counter-affidvits of the respondents.” The appeal was in the result allowed and the ruling of the Court of Appeal was set aside while the time was extended and granted the appellants/applicants to file their notice and grounds of appeal within 60 days from the date of making the order.</p> <p>In the same vein and having regard to the totality of the application before me, I am of the firm view that the course of justice would best be served if the indulgence is granted the applicants. Consequently, I therefore make an order extending the time within which the applicants are to seek leave to appeal, leave to appeal and extending the time within which to file their Notice of Appeal against the ruling of the High Court of Lagos State delivered on 4th April, 2005 on grounds of facts and mixed law and facts. The said proposed notice of appeal exhibited to the motion paper and marked exhibit EE is to be filed within 21 days from today.</p> <p><strong>CLARA BATA OGUNBIYI, JUSTICE, COURT OF APPEAL</strong></p> <p><strong>Counsel: </strong></p> <p>R. Okonokhua for the applicants.</p> <p>A. A. Adewunmi for the respondents with him Mrs. O. Jimoh.</p> <p> </p></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 326 at http://nigerialii.org Nuhu v Senator Bwacha And Ors (YL 105 of 2015) [2016] NGCA 12 (28 June 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/12 <span class="field field--name-title field--type-string field--label-hidden">Nuhu v Senator Bwacha And Ors (YL 105 of 2015) [2016] NGCA 12 (28 June 2016);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p> </p> <p> </p> <p><strong>IN THE COURT OF APPEAL</strong></p> <div> <div> <p><strong>Holden at Yola</strong></p> </div> <div> <div> </div> </div> <div> <p><strong>Between</strong></p> <div><strong>APPELLANT</strong></div> <p>RIMAMNDE BITRUS NUHU</p> <p>and</p> <div><strong>RESPONDENT</strong></div> <p>1.    SENATOR EMMANUEL BWACHA<br /> 2.    PEOPLES DEMOCRATIC PARTY (PDP)<br /> 3.    INDEPENDENT NATIONAL ELECTOAL COMSSION (INEC)</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (DELIVERED BY SAIDU TANKO HUSAINI, JCA)</strong></p> <p>This appeal is against the Ruling delivered at the Federal High Court, Jalingo in the Taraba Judicial Division on the 13th September, 2015 in Suit No. FHC/TAR/M/24/2015.</p> <p>The Appellant as plaintiff instituted action at the Federal High Court, in the Federal Capital Territory, Abuja by way of the Originating Summons dated and filed on the 31st December, 2014 wherein he sought for the determination of the sole question, that is:</p> <p>Whether the 2nd defendant for the purpose of selecting its candidates for the Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general election can adopt a procedure other than that provided in 2nd defendant’s Electoral guideline for Primary Elections 2014 the 2nd defendants Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended) .</p> <p>As a consequence the plaintiff (Appellant) sought all the reliefs covered the Originating Summons as follows:</p> <p>“WHEREOF the plaintiff (s) the followings:</p> <p>(i)    A DECLARATION that the 2nd defendant cannot adopt any procedure other than that provided in the 2nd defendant’s Electoral Guideline for Primary Elections 2014, Section 50 95) of the 2nd defendant’s Constitution 2012 (as amended) and Section 87 (4) (c) (i) &amp; (ii) of the Electoral act, 2010 (as amended) for the purpose of selecting candidate for Senate to represent Taraba State South Senatorial District in Taraba State for the 2015 General Elections<br /> (ii)    A DECLARATION that the 2nd defendant having not complained with its own Electoral Guideline for Primary Elections 2014, Section 50 (5) of the 2nd defendant Constitution 2012 (as amended) and Section 87 (4) (c) (i) &amp; (ii) of the Electoral Act, 2010 (as amended0 has not validly conducted for senate to represent south Senatorial District in Taraba State, for the 2015 General Election.<br /> (iii)    AN ORDER nullifying the primary elections conducted by the 2nd defendant on the 11th December, 2014 for the purpose of nominating a Senate candidate for the 2nd defendant to represent Taraba South Senatorial District at the Senate for the 2015 General Elections <br /> (iv)    AN ORDER directing the 2nd defendant to conduct a fresh primary election in accordance with the 2nd defendant’s Electoral Guideline for Primary Elections, 2014 in compliance with the 2nd defendant’s Constitution 2012 (as amended) and the provision of the Electoral Act, 2010 (as amended0 for the purpose of nominating a Senate candidate for the 2nd defendant to present Taraba State Senatorial District in Taraba State.<br /> (v)    AN ORDER restraining the 3rd defendant from accepting and /or recognizing or dealing in any manner with the name of the 1st defendant as candidate of the 2nd defendant for the Senate for Taraba South Senatorial District for the 2015 General Election</p> <p>AND FOR FURTHER ORDERS (S) as this Honourable Court may deem fit to make in the just determination in the circumstances.”</p> <p>The Originating Summons had in support an affidavit of 25 paragraphs and certain documents among which are the Electoral Guidelines for Primary Election 2014 of the Peoples, Democratic Party and the Constitution of the Peoples Democratic Party. The Originating Summons is further accompanied with the written address of counsel as at the date of filing on the 31st December, 2014. See pages 142 – 157 of record. </p> <p>At the sitting of the 3rd February, 2015 at Abuja, the Federal High Court by an order issued the same date, caused the suit that is, the Originating Summons to be transferred to the Federal High Court, Jalingo Tarba </p> <p>State wherein, at the Registry, the Suit was assigned with No. FHC/TAR/SC/5/15 and thereafter caused the process to be served on the  defendants.</p> <p>Upon service of the Originating Summons, the 1st and 2nddefendants, now respondents filed their separate conditional appearance, and thereafter filed their separate and distinct Motion on Notice, that is Motion on Notice No. FHC/TAR/M/28/2015 filed on the 30th August, 2015for the 1st defendant/respondent and Motion on Notice No. FHC/TAR/M/27/2015 filed 30th April, 2015 for the 2nd Respondent. The Appellant in turn filed his response only in respect of the application by the 2nd defendant (respondent). In both applications, the 1st and 2nd defendants (respondents) urged on the court below to strike out or dismiss the Originating Summons for being grossly incompetent or null and void based on the grounds set out in the respective Motions on Notice, the affidavits in support of the two Motions and their  written addresses. Upon hearing of the two applications on the 20th May, 2015 and the response of the appellant, the court below, in 2 (two) separate Rulings delivered the same day on 17th September, 2015 declined jurisdiction and upheld the objection of the 1st and 2nd respondents.</p> <p>Peeved by the court below the plaintiff by the Notice filed on the 22nd October, 2015 lodged an appeal to this court on 7 (seven) grounds as contained in the record of appeal at pages 459 to 466. The record of appeal as has since the 16th November, 2016 been transmitted to this court.</p> <p>In the briefs of argument filed and exchanged between counsel 4 Issues as formulated by the Appellant in his brief filed on the 23th December, 2015 at pages 6 – 7 were agreed upon and indeed adopted by the 1st and 2nd respondents in their joint brief of argument filed on the 9th February, 2016 at paragraph 5.2 of the brief as issues for determination in this appeal savethe point(s) of Preliminary Objection raised and is subsumed in the respondents’ brief of argument in opposition to this appeal at pages 4 – 12 of the said brief.</p> <p>A separate Notice of Preliminary Objection to the appeal which has the sameeffect was filed along with the brief of argument for the 1st and 2nd respondents on the 9th February, 2016. The 3rdRespondent (INEC) has not filed any brief of argument and they were not represented by counsel on the date the appeal came up for hearing.</p> <p>Mr. E. A. Ibrahim Effiong at the hearing of the appeal on the 23rd May, 2016 invited our attention to his Notice of Preliminary Objection filed both as a separate process and as a process already incorporated into the brief of argument for the respondents and argument canvassed thereto, and he adopted same to urge on the court to uphold the Objection and strike out the appeal for reasons canvassed in their brief of argument.<br /> Mr. Abbass Ajiya, learned counsel for the appellant in his response to the Preliminary Objection referred us to the reply brief filed by them 9th March, 2016 in opposition and to arguments canvassed therein in urging us to discountenance the Preliminary Objection.</p> <p>Being the process which seeks to terminate this appeal in lamine, there is the need to first examine the complaints arising from this objection.</p> <p>The sole objection is itself predicated on the competence of the appeal and this is how the 1st and 2nd respondents couched it in their Notice of Preliminary Objection, thus:-</p> <p>“The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the appellant the fortune of the appeal would not change in the face of the unappealed findings in the decision emanating from the objection of the 2nd Respondent thus rendering the appeal grossly incompetent.</p> <p>PARTICULARS OF THE SOLE GROUNDS</p> <p>i.    The 1stand 2nd Respondents filed separate and independent Applications challenging the jurisdiction of the Lower Tribunal on 9 and 5 grounds respectively as could be discerned from pages 260-319 and 320-376 of the printed Record.<br /> ii.    In the application of the 1st Respondent, 7 issues were formulated from the 9 grounds and in that of the 2ndRespondent 5 issues were formulated from the 5 grounds. We refer this Court to pages 273 and 331-332 of the Printed Record.<br /> iii.    The Lower Court upon hearing the Applications reformulated two issue for determination in respect of the Objection of the 1stRespondent and 3 in respect of that of the 2nd Respondent. See pages 421-422 and 450 of the Printed record.<br /> iv.    The Lower Court on 17th September, 2015 delivered two separate and distinct rulings as could be gleaned from pages 399-430 (ruling on the objection of the 2nd Respondent) and pages 431-457 (Ruling on the Objection of the 1st Respondent).<br /> v.    The two rulings supra constituted two separate, distinct and independent decisions.<br /> vi.    The Appellant filed a sole Notice of Appeal without stating the decision appealed against and in fact from the Notice and grounds of Appeal, it could safely be referred that the appeal is limited to the decision arising from the Objection of the 1st Respondent only on the grounds infra:’’</p> <p>Learned respondents’ counsel formulated just one (1) issue as arising for determination from those grounds of objection thus:</p> <p>Whether in the face of damaging specific findings of the Court below against the Appellant is the objection of the 2ndRespondent which this appeal is unrelated especially to the effect that this appeal is not rendered academic?Arguments canvassed in support of the lone issue can be seen at pages 7 – 12, paragraphs 4.1 -4.16 by which learned counsel for the 1st and 2nd respondents alluded to the 2 (two) separate applications made by them at the court below. Be seen at pages 252 – 319 and 320 – 376 of the printed record. He noted that the court below gave two separate and distinct rulings in respect of those two applications and he referred us to the two ruling at pages 399 – 530 and 431 – 457 of the printed record. Learned counsel argued that all the grounds of appeal as highlighted in particular (iv) of the particulars of grounds of objection arose from the decision or ruling given in respect of the objection of the 1st respondents alone and thereby leaving the decision and the findings contained therein in respect of the objection of the 2nd respondents as still extant. He referred in particular to the findings of the court below at pages 428 – 429 of the record which he said were not appealed against. These findings he said, are that the suit disclosed no locus standi, cause of action and that the matter was not justiciable. He contended that this finding of which there was no appeal was peculiar to the objection of the 2nd respondent only. He went further to submit that where the findings of a court are not specifically challenged the same remain undisputed and is deemed admitted citing in support the  decision in N.B.C.I. Vs. Integrated Gas (2005)2 SCM 67, 205; Dabo v. Abdulahi (2005) 4 SCM 52, 69; Olukoya v. Asheru (20060 7 SCM 175, 188; Standard Nig. Entr. Vs. NBCI (2006) 4 SCM 194, 2005; Bhojsons Plc V. Kalio (2006) 4 SCM 1 13 – 14 in consequence of this it is argued that the instant appeal even if it succeeds will have no meaningful impact on the appellant who derived no benefits from the ruling so far as there was no appeal over the findings of the same court in the second ruling. To this end he said the appeal was not only academic and hypothetical but frolicsome. He cited a number of authorities on that point among which are: (i) Plateau State V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, 419. (ii) Adeogun V. Fashogbon (2009) All FWLR (Pt. 449) 531, 552 – 553,. In such circumstance, it is furtherargued, the court will not act in vain to entertain questions of academic nature lacking practical utility value. He relied on Nwora V. Nwebueze (2012) All FWLR (Pt. 613)1824. The appeal, it is further argued, being academic in nature, this court lacks jurisdiction to determine academic and hypothetical questions, relying on Ikyenya Vs. PDP (2012) All FWLR (Pt. 628) 837, 853. Such question or appeals he said should be discountenanced by the court. He relied on quite a number of authorities including (i) Ugba V. Suswan (2014) All FWLR (Pt. 748) 8 25, 855 (ii) Audu V. Attorney General of the Federation (2013) All FWLR (Pt. 667) 607), 024. (iii) Abe V. University of Ilorin (2013) All FWLR (Pt. 697) 682, 698 (iv) Oke V. Mimiko (2013) All FWLR (Pt. 693) 1853, 1879 (v) Inec V. Atuma (2013) All FWLR  (Pt. 697) 619, 633.</p> <p>He argued further and submitted that a court is competent when:-</p> <p>(a)  It is properly constituted.<br /> (b)The subject-matter of the case is within the jurisdiction of the court and there is no feature in the case preventing the court from exercising its jurisdiction, and<br /> (c)  The case comes before the court duly initiated by due process and upon fulfillment of any condition precedent. </p> <p>He cited: Hamza &amp; Anor. Vs. Sani &amp; Ors (2015) 1 SCM 174, 191; APGA Vs. Anyawu (2014) All FWLR(Pt. 735) 243, 263; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261, 1289; Akpangbo-Okadigbo Vs. Chidi &amp; Ors. (2013) 3 SCM 141, 202 to urge us to strike out or dismiss this appeal on this ground.</p> <p>In the reply brief filed on the 9th March, 2016, the appellant questioned the competence of the brief of argument filed by the Respondents stating that the brief was in excess of 3o page limit as ordained or allowed by the Rules under Order 18 Rule 6 (a0 of the Court of Appeal Rules, 2011, that is, putting together 1st and 2nd respondents’ brief of 28 (twenty eight) pages and the brief containing the list of legal authorities filed by them consisting of 3 (three) pages. He argued that this failure of compliance with the rules meant that no Brief of argument was filed by the 1st and 2nd Respondents, the consequence of which is that they cannot be heard on oral argument and they are deemed to have admitted the truth of the contents of the brief filed for the Appellant. He cited in support the decision in Dilibe V. Nwakozor (1986) 5 NWLR (Pt. 41) 315, 333; Oyesoh V. Nnebedan (1992) 3 SCNJ129, 153; Nwokoro Vs. Onume (1990) 3 NWLR (Pt. 136) 22, 32; Unity Bank Plc. Vs. Edward Bouari (2008) 2 SCNJ 116. </p> <p>In response to the specific complaints raised by the preliminary Objection, the Appellant or his counsel canvassed the lone issue distilled by him and that is, whether the Preliminary Objection as argued by the Respondents, has merit?</p> <p>It is argued that the 2 (two) rulings delivered at the court below at pages 399 and 431 of the record of appeal were products of the same Motion Number i.e FHC/TAR/M/24/15 in the same suit No. FHC/TAR/CS/5/15 both of which were delivered on the 17th September, 2015 by the same Judge, Hon. Justice D. U. Okorowo.</p> <p>To further buttress this point learned counsel referred to the Notice of Appeal in Appeal No. CA/YL/105/15 to submit that the appeal is against the decision of Hon. D. U. Okorowo ,Judge dated the 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.By reference to part 2 of the same Notice of Appeal it is also contended that the Appeal is against the whole decision of D. U. Okorowo delivered on 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.<br /> Learned appellant’s counsel therefore urged us not to succumb to the arguments canvassed by counsel for the respondents in their brief stating that those submissions bordered on technicalities but urge on the court to deal with the substance in order to achieve substantial Justice.</p> <p>Before I take on the issues raised by the Preliminary Objection, there is equally a fundamental question which throw up a challenge that because of the seeming or apparent defects in the brief of argument filed by the Respondents, there was no brief at all by them and that this court should discountenance that defective brief. I will first address this point.<br /> Going by the records it is discernible that the 1st and 2nd respondents filed their brief of argument on the 9th February, 2016 and the same brief dated the 4th February, 2010 runs into 28 pages.</p> <p>By another process filed on behalf of the 1st and 2nd respondents on the same 9th February, 2016, captioned list of authorities, in respect of the same appeal, that is, Appeal No. CA/YL/105/2015, between the same parties, is a document of 4 pages.</p> <p>Order 18 rules 3(1) and (2) of the Rules of this court on the Forms and Contents of a brief, provide thus:-</p> <p>“3-(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.</p> <p>(2)Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, date and pages of cases reported in the Law Reports or elsewhere including the summary of the decision in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals”</p> <p>It is clear that by this provision, the document or process captioned list of authorities, whether subsumed in the main brief of argument or not are still part of the brief, so far as it is intended to support arguments or submissions contained in that brief which in any case shall not exceed 30 (thirty) pages. See order 18 rules 6 (a).</p> <p>The process filed on the 9th February, 2016 and captioned “List of Authorities” run into 4 pages and these pages when added to 28 (twenty-eight) pages that is the number of pages contained in the 1st and 2nd respondents’ brief of argument will run into 32 pages or thereabout which is in excess of the 36 page limit allowed by the rules of court.</p> <p>The consequence of filing a brief of argument in excess of 30 page limit is the provision which empower the registry of this court to refuse to accept such briefs upon presentation of same for filing. See Order 18 rule 6 (c) of the rules of this court.</p> <p>Now, the brief of argument for the 1st and 2nd respondents like the brief of argument for the appellant are now before us in this court. It escaped the eagle eyes of the registry albeit undeservedly and has gone beyond the registry, and it is now before us, in this court. Should this court at this point in time ignore this brief as argued by the appellant or his counsel in their brief? Not too long ago this court was confronted with a situation similar to this and this is what I said at that time, in the case of Iorundij Atau Azanke&amp;Anor V. Emmanuel Machoko (unreported), a decision delivered on the 26thMay, 2016 in Appeal No. CA/YL/48/2014 and I quote in Extensor, thus:-<br /> “Appellants’ brief of argument before the court, unarguably, runs through 36 pages contrary to the stipulation in Order 18 rule 6 (a) of the rules of this court.</p> <p>Leave was neither sought nor obtained as at the date the brief was filed on the 7/12/2015. There is nothing on record to so suggest that this court by an order has directed the appellants to file their brief of argument in excess of 30 page format as provided for in the rules. This, thus is a case of non-compliance with the mandatory provisions of the Rules. But rules of court are meant to be obeyed and not made for the sake of making them as held in Williams V. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC;  African News papers Ltd V. Owososeni (1995) 2 NWLR (Pt. 375) 110; Opera V. Dawell Schuhom-Berger Nig. Ltd. (1995) 4 NWLR (Pt. 390) 440. There is a purpose for making the rules and that is, to check verbosity and to ensure that brief of argument are not unwieldy long winded and cumbersome. Failure of compliance with rules of court may not invalidate proceedings or court process see order 20 of the rules of court but such non-compliance may invite sanctions in other cases as for instance order 18 rule 6 (c) of the rules of this court provide that every brief which fail to comply with the page limit and page size requirements shall not be accepted by the Registry, for filing. This provision of the Rules cast on the Registry the duty of having to scrutinize all documents or papers especially briefs of argument submitted for filing to ensure compliance. As a clearing house, the registry must not shirk in its responsibilities. It has a duty to sieve the chaff from the grain and refuse to accept all or any Brief of argument for non-conformity with set standards at the point of filing. This is a wake – up call. </p> <p>Now, Appellants’ briefs of argument of 36 pages, having been accepted and filed at the registry, notwithstanding the provisions of the rules i.e. Order 18 rule 6 (a), and has come before us at this level should the court at the point of hearing discountenance same on account of non-compliance with the rules? I do not think it is the right thing to do, at this stage of the proceedings, to reject briefs of argument of counsel for the Appellant at the point of hearing his case. Rather, this court guided by the principle of fair hearing will be inclined to overlook any inelegance or flaws noticeable in the appellants’ brief of argument and do substantial justice to it as it has a duty to examine the arguments contained therein and decide the case on the merits. See: Obiora V. Osele (1989) 1 NWLR (Pt. 97) 279; Ekpemupolo Vs. Edremoda &amp; Ors LPELR – 1089 (SC).”</p> <p>I still want to stand by those conclusions in the case referred to above and I think my conclusion or opinion there is relevant to the issue on hand in this appeal case hence I adopt same. I do not think it is wise thing to do, to ignore issues raised by the respondents in the Notice of Preliminary Objection. There is need to examine their claim by that objection.</p> <p>The 1st and 2nd respondents indeed respectively filed their two separate Motions upon being served with the appellant’s Originating Summons. The Motion dated the 30th August, 2015 and filed on behalf of the 1st respondent on the same date was directed at the Jurisdiction of the court below to entertain the claim. So is the Motion dated and filed on the 30thApril, 2015 on behalf of the 2nddefendant. The court below heard the 2 (two) applications the same day and reserved ruling in each one of them. In the ruling (s) delivered on 17th September, 2015 In Suit/Motion No. FHC/TAR/M/24/2015 the court declined jurisdiction hence this appeal. <br /> I have given thought to all the submissions made by counsel and the authorities cited by them. The gist of the Objection taken lie in the fact that the appeal before us is a sheer waste of time and an exercise in futility such that even if the appeal succeeds, the success will not confer any utility value on the appellant hence the appeal is merely of academic and hypothetical, so far as the appeal over or against 1 (one) ruling or decision leaves the other or the 2nd ruling still extant.</p> <p>I know that the courts over time have refused to indulge and deal with academic and hypothetical questions rather the courts are established to deal with matters in difference between the parties. This is so because academic or hypothetical questions do not help in the determination of live issues in a matter. They are merely frolicsome, not touching or affecting the very tangible and material aspect in the adjudication process. See: Okotie-Eboh V. Manager (2004) 18 NWLR (Pt. 905) 242; Bangboye V. University of Ilorin (1999) 10 NWLR (Pt. 6 22) 290; Owners of MV.  Arabella V. NAIC (2008)11 NWLR (Pt. 1097) 182 or (2008) 34 NSCQR (Pt. 11) 109; Adeogun V. Fashogbon 149 (SC); Yusuf V. Tolushi (2008) 14 NWLR (Pt. 1107) 237 or (2008) 6 – 7 SC (Pt. 1) 164.</p> <p>The question therefore is whether the current appeal is merely academic or hypothetical as being canvassed by the respondents in the light of the ruling at pages 399-430 of the printed record over which it is argued there is no appeal? This is the contention of counsel to the respondents. It is claimed that the current appeal does not relate to the ruling referred to above but the ruling at pages 431-457 of the printed record in respect of the Motion on Notice filed by the 1st respondent</p> <p>There is the need therefore to take another look at the Notice of Appeal so as to discover to which ruling or decision, the appeal relates.</p> <p>The Notice of Appeal state at page 459 of the printed record thus: </p> <p>“NOTICE OF APPEAL</p> <p>TAKE NOTICE that the appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D. U. Okorowo, Judge dated the 17th day of September, 2015 in Suit No. FHC/TAR/CS/5/1, do hereby appeal to the Court of Appeal, holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves (sic) set out in paragraph 4.<br /> AND the appellant further state that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5”</p> <p>I stop here for now. The decision appealed against unarguably, is the Ruling:</p> <p>(i)    Of Honourable D. U Okorowo, Judge. <br /> (ii)    Dated or delivered on the 17th day of September, 2015<br /> (iii)    In Suit No. FHC/TAR/CS/5/2015<br /> (iv)    In Motion No. FHC/TAR/M/24/2015</p> <p>The decisions referred to earlier at pages 399-429 and pages 431 – 457 both have and retain the characteristics listed as in (i) (ii) (iii) and (iv) above. And that is not all. The appeal is against “the whole decision” and this can be discerned from the second part of the Notice of Appeal – captioned: PART OF THE DECISIONS OF THE LOWER COURT COMPLAINED OF: The word “Decision” as constitutionally defined as Section 318 (1) of the 1999</p> <p>Constitution as amended means:<br /> “any determination of that court and includes Judgment; decree, order, conviction, sentence or recommendation” </p> <p>See Dr. Kubor &amp; Anor Vs. Dickson &amp;Ors (2012) 10 – 11 SC 1; Garuba V. Omo Khodion&amp; 13 Ors. (2011) 6 – 7 .(Pt. V) 89.This definition thus is wide enough to accommodate any ruling or rulings of court as in the instant case on appeal. The appeal by the appellant as presented by the Notice of Appeal under reference is not an appeal  againstjust1 (one) decision but an appeal against the “decisions” of the Lower Court andifI may add, it is an appeal against the decisions delivered by D. U. Okorowo, the Presiding Judge of the Federal High Court of Justice, Taraba State Judicial Division, Jalingo, on the 17th September, 2015 in Suit No. Motion FHC/TaR/Cs/5/2015 in FHC/tAR/M/24/2015.</p> <p>Every Notice of Appeal constains what the subject matter of the appeal is all about. See: Dyagyadi V. INEC (No. 2) (2010) 18 NWLR (Pt. 224) 154 (SC).  The subject-matter or areas addressed in this appeal and to which a complaint has been lodged is with respect to the Issues, among others of:</p> <p>i.    Service of Originating Process<br /> ii.    The issue of non-compliance with the provision of Section 97 and 98 of the Sheriffs and Civil process Act…………..<br /> iii.    The Issue of the Plaintiff’s/Appellant’s lack of locus standi at the time his claim was filed and/or his claim not having disclosed any cause of action.<br /> iv.    The issue or question of the justiciability of the action or claim.</p> <p>I have read the ruling of the Court below at pages 399 -430 of the printed record and I can say without equivocation that issues or the subject matter covered by the Notice of appeal are the same or similar subject areas or matters over which the court below has also addressed the ruling delivered by it on the 17th September, 2015 which is at pages 399 – 430 of the printed record, for instance the court at pages 421 – 429 of the printed record raised and addressed 3 (three) fundamental questions as they relates to (a) Plaintiff’s/appellant’s Cause of Action, I.e- whether the Suit filed by him disclosed any cause of action as to confer on the court the jurisdiction to entertain the claim (b) the issue of the locus standi of the plaintiff, to initiate the suit and (c) the Justiciability of the Suit instituted by the plaintiff /appellant.</p> <p>To contend as the respondent did in their argument in support of the Preliminary Objection that this appeal does not relate to the ruling at pages 397 – 429 of the record is to my mind a misconception of the issues raised in the Notice of appeal and for this I should overrule the preliminary Objection and dismiss same. </p> <p>But granted that the appeal relate to one (1) decision (ruling) only and not the other (ruling) as claimed, how then does it affect the validity of the Notice to which this appeal relate? That is the question: The ruling over which there is no appeal remain as a subsisting and valid decision and therefore binding on the parties to it even if the current appeal succeeds. I therefore find no merit in this Preliminary Objection which is hereby dismissed.</p> <p>I will now consider this appeal on the merits. Before now reference was made to the briefs of argument filed on behalf of parties on both sides including the reply brief filed on the 9th March, 2016. In the brief by the appellant 4 (four) issues were distilled at page 4 as follows:-</p> <p>1.    Whether in the circumstances of the Suit of the Appellant any of the provisions of the rules of the Lower Court or Sheriffs and Civil process Act regarding the issuance and service of originating process was violated?<br /> 2.    Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?<br /> 3.    Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)<br /> 4.    Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?</p> <p>By the brief of argument filed on9th February, 2016 the 1st and 2nd respondents adopted all the 4 (four) issues formulated by the appellant. It follows therefore that this appeal will be decided on the 4 (four) issues formulated by the appellant in his brief of argument and this is what I now proceed to consider arguments proffered on those issues:</p> <p>ISSUE 1</p> <p>Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated? (distilled from grounds 1 and 2 of the Notice of appeal)</p> <p>In addressing this question in his brief of argument at pages 7-10, learned counsel for the appellant drew the attention of the court to the fact that the process by which the Suit was argued was filed or was issued at the Federal High Court in Abuja and to be served on all defendants/respondents in Abuja whose address of service were also endorsed on the writ. That service had not been effected ass the  Judge, Presiding at the Abuja Division of Federal High Court, A. R. Mohamed caused the Summons to be transferred to Taraba Division of the Federal High Court on the 23rd February, 2015, where service was now effected on the defendants/respondents, that upon the process now being served the 1st and 2nd respondents entered appearances and filed a motion on Notice No. FHC/TAR/M/28/15 dated the 30th April, 2015wherein the objection was raised alleging that the appellant did not seek and obtain leave of the Federal High Court sitting in Jalingo to action and serve the process in Abuja.</p> <p>Before us it is argued that leave to issue an originating process was not necessary in the circumstances of this case. That leave is only necessary where service is to be effected outside the territorial limit of the court. It is argued that the fact of the transfer of the Suit to Taraba Division of the Federal High Court did not invalidate its issuance by the Abuja judicial Division of the Court which still remain as one and the same court. He cited and relied on Egbe v. Areka (1988) 7 SC (Pt. 3) 98, 11.</p> <p>Learned appellant’s counsel further argue that assuming that the issuance of the Writ became invalidated by reason of the transfer of the Suit, then there would be no need to seek leave of the “recipient Division” to serve the Writ within the “Dispatch Division.” in reference to section 19 (1) of the Federal High Court Act, Cap F. 12 CFN 2004.He submits further that the Federal High Court was established to exercise jurisdiction throughout the Federation, consequently leave of the Court below was not necessary to initiate and issue and serve a Writ within the Federal Republic of Nigeria and the Court below was in error to hold otherwise.<br /> Learned counsel further submits that it amounts to misdirection in law for the Court below to invoke a general rule or law or practice to displace a distinct or particular authority vested by a statute, in obvious reference to Section 96 (1) (2) of the Sherriff and Civil Process Act Cap. S. B. Law of the Federation of Nigeria, 2004 vis avis Section 19(1) of the Federal High Court Act Cap. F12 LFN, 2014. He cited and relied on: Ezeadukwu V. Maduka(1977) 8 NWLR (Pt. 518) 835, 647.</p> <p>By further reference to order 6 of the Federal High Court (Civil Procedure) rules 2009, he argued that there is no provision in the rules which make the grant of leave as a condition before issuance of a Writ by one Division of the Court before service in another Judicial Division. </p> <p>In a further submission by him it is contended that the court below in the course of its ruling raised an issue of plaintiff’s non-compliance with the provisions of Section 97 and 98 of the Sheriffs and civil Process Act. He argued that it was wrong of the Court to do so on its own and proceed thereat, and without giving either of the parties a hearing on the point to invalidate the summons and thus striking out the Suit. It is argued that neither the Plaintiff/Appellant nor defendant/respondent raised issue as regards Section 98 and 98 of the Sheriffs and Civil Process Act. He argued that by the Court suo motu invoking those provisions, it was making a case different from the one the parties had placed before it hence the need arose to allow the parties to address on it in line with the principle of fair hearing. He cited and relied on the following cases: Concord Press (Nig) Ltd V. Olutok (1999) 9 NWLR (Pt. 6220) 578, 590; Dalek V. Ompadec (2007) 2 SCNJ 208, 242; Ezeonwu V. ONYECHI (1996) 2 SCNJ 250, 269.</p> <p>Learned counsel submits further that so far as leave was not required to serve the Originating process, it follows that of Sections 97 and 98 of the Sheriffs and Civil Process Act was not applicable to this case. That it was fatal for the court below to rely and act on same in itsdecision or ruling. He argued that the court ought to have confined itself to issues brought before it, and he relied on: Akinfotarn V. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 50; Onyamaeh v. Ogbuchulum (1996) 4 SCNJ 237, 244; Ckukwuma V. Federal Republic of Nigeria (2011) 5 SCNJ 40, 71; Kim vs. the State 91992) 4 SCJ81, 92, learned appellant’s counsel urged on the court to resolve Issue 1 in their favour. </p> <p>For counsel to the respondent arguing par contra relative to issue No. 1, it is contended that the said issue No. 1 was restrictive in scope and thus could not have been derived from ground 2 of the grounds of appeal. Learned counsel urged on the court therefore to hold that Issue 1 relate to ground 1 only and that ground 2 be deemed as abandoned and that same be struck out. He relied on Victor V. State (2014) Alims (Nig.) LtdV.UBA 2013 All FWLR (Pt. 692) 1756, 1763; Eco Bank (Nig.) Plc. V. Gusan (2013) All FWLR (Pt. 699) to urge on the Court discountenance any argument relating to that ground citing Shuadu V. the State (2014) All FWLR (Pt. 750) 1381, 1391 and NBC Vs. Ubani (2014) All FWLR (Pt. 718) 803, 835.</p> <p>In response to the issue of whether leave of the court below was required for issuance and for service of the Originating Summons, counsel has argued stating that the Sheriff and Civil Process Act, cap S. 6 Laws of the Federal of Nigeria was a relevant pieces of legislation in respect of Originating processes issued and for service outside the state, that the Act applies to Federal High Court and he relied on the case of Owner of the MV Arabella vs.  N.A.I.C(2008) All FWLR (Pt. 443) 1208, 1226-1230.His submission, in a nutshell, is that in absence of leave first being sought and obtained to serve the Summons or Writ outside jurisdiction, any service effected with the Writ was improper to render the suit incompetent hence court below was right in striking out the originating summons. Learned respondent’s counsel contended that a similar argument or submission was made at the Court below but the appellant was mute about it to suggest that he admitted it and thus urged on the court to so hold. He relied on Onmeje V. Odumu (2011) FWLR (Pt. 600) 1328, 1352UgboajaV. Akintoye Sawemino (2008) All FWLR (Pt. 4390 407, 418.</p> <p>In the reply brief filed for the appellant he argued that issue No. 1 was not only derived from ground 1 but from ground 2 as well of the grounds of appeal following the ruling of the Court below. He argued that the 2 (two) grounds arose from the ruling in relation to the provisions of Sheriffs and Civil Process Act, and that it was proper to raise a single issue from the two grounds. He cited and relied on Yusuf V. Akindipe (2000) 5 SCNJ 128, 134.<br /> The Appellant, he argued, has that the appellant  has not violated any of the provision of the said Act as alleged . i. e. Section 96, 97 and 98 of the Sheriffs and Civil Process Act which he says are not applicable to this case in that the Originating process was filed and or issued at Abuja and same to be served in Abuja. </p> <p>OPINION</p> <p>Issue of service is a fundamental requirement in the adjudicative process. So important is it that the absence of same would lead to an entire proceedings or a suit being voided as a nullity. This is so because by dint of service of a court process the party on the other side is put on Notice of the nature and character of the suit that wait him, and thus calling on him to get set and be prepared for the impending case or Suit. Issue of service is thus a condition precedent to the hearing of any given case to which that service or Notice relates. It is the service of the relevant process that confer on the court the jurisdiction to hear the matter in relation to that person. See: Alhaji Dan Rausa&amp; Co. V. Panatrade Ltd (1993) NWLR (Pt. 298) 204 or (1993) 7 SCNJ 100; Kida V. Ogunmol (2006) 13 NWLR (Pt. 997) 377; Africa C. B. Pl. Vs. Lasada Nig. Ltd 919950 7 NWLR (Pt. 405) 25; Uchandu vs. Ogboni (1999) 5 NWLR (Pt. 6033) 337 or (1999) 4 SC (Pt. 11) 1; Eimskip Ltd V. Exquisite Industries (Nig.) Ltd. 92003) 4 NWlR (pt. 809) 88 (005) 1 SC (Pt. ii) 94; Aken Consult V. Ukey (1981) 1 Sc 6, 226; Okoye &amp; Anor. V. Centre Point Merchant Bank (2008) 15 NWLR (Pt. 1110) 335 SC. Tsokwa Motors (Nig.) Ltd Vs. UBA Plc. (2008) 2 NWLR (pt. 1671) 347. The duty on the Plaintiff or claimant seeking to initiate a Suit becomes even more compelling when the law require of him to first seek and obtain leave of court preparatory to the Originating Summons being issued and served and this, I think is the live issue in this case on appeal. The court below delivering its ruling on the application filed by the respondents raising objections on the competence of the Suit before it took the view that since leavewas not sought and obtained and the provisions of Section 96, 97 and 98 of the sheriffs and Civil Process Act not having been observed, then the Suit initiated by the appellant was incompetent.</p> <p>Before I go any further you will permit me my lords to pause here for a while and pass a few remarks by way of observation on the submission made by counsel to the respondent that issue No 1. Was not derived from ground 2 of the Notice of appeal as alleged and to that extent the said ground 2 has been abandoned and same should be struck out.</p> <p>In his brief of argument the appellant at page 7contends that Issue No. 1 was formulated from 2 (two) grounds in the Notice and Grounds of appeal, that is to say from grounds 1 and 2. The said Issue No. 1 is presently being considered but there is the need to look at grounds 1 and 2 of the grounds of appeal again. Ground 1 (one) along with the particulars state thus:-</p> <p>“GROUND ONE:<br /> The Honourable trial Court misdirected itself when without adverting his mind to the facts that the originating process was instituted at and duly issued by the Abuja Judicial Division of the Court and consequently transferred to the Taraba Judicial division proceeded to hold.</p> <p>“I have perused the record of this Court and I find no where the plaintiff initiated any application or leave to issue processes in this case… the noncompliance is a fundamental vice and goes to the root of the action. The originating Summons ant other processes field with it are invalid, defective and ought to be set aside as this court has no jurisdiction to entertain it”</p> <p>PARTICULARS OF THE ERROR</p> <p>1.    The originating summons was filed in and issued by the Abuja Judicial division of the Court<br /> 2.    At the time the originating process were issued the addresses for service indorsed therein are within the Federal capital Territory, Abuja.<br /> 3.    Section 19 (1) of the Federal high Court Act (Supra0 vests jurisdiction throughout the Federation on the Court. <br /> 4.    Section 96 (1) &amp; (2) of the Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004, did not prescribed or provide for the need to seek or obtain the leave of the court to serve the originating process within any part of the Federation.<br /> 5.    By the Rules of the Honourable trial court, leave is only necessary where the service of the originating process is to be effected outside the territorial limit of the Federation.”</p> <p>GROUND 2 (TWO) STATE THUS:<br /> The honourable trial court misdirected itself in its decision thereby occasioning grave miscarriage of justice, when it suomotu and without inviting the parties to address it, raised the issue of noncompliance with the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) and resolved same thus:</p> <p>“Both Section 97 and 98 of the Sheriffs and Civil Process Act are requirement of the Statute which prescribes conditions for issuance of the Writ. Failure to comply with the provisions make writ invalid and void. The action based on them is therefore incompetent and liable to be struck out” </p> <p>PARTICULARS OF THE ERROR</p> <p>1.    None of the Respondents complained about the fact that the originating process were not endorsed as stipulated in Section 97 and 98 of the sheriffs and Civil Process Act (Supra).<br /> 2.    It is an elementary and fundamental principle of the determination of dispute between the parties that the Judgment must be confined at the Court setting up a new case for the parties.<br /> 3.    The court must afford parties the opportunity of being heard on new issues raised suo motu.<br /> 4.    It is not proper for a court to embark upon a fact finding investigation that leads to the discovery of facts.<br /> 5.    Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) do not apply to the case before the trial Court.<br /> 6.    The Appellant was denied the right to be heard on the point raised by the trial Court.”</p> <p>A comparative reading of ground 2 of the grounds of appeal and Issue No. 1 will reveal that the latter i.e issue No. 1, contrary to the view held by respondent’s counsel, is indeed related to the complaint in ground 2 of the grounds of appeal by which, the question of the relevance and applicability of Sections 97 and 98 of the Sheriffs and Civil Process Act was the main focus of complaint. Issue 1 which state:“Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated”, embraces the two grounds of appeal under reference and to that extent, ground 2 of the grounds of appeal cannot be said has been or was abandoned as argued by the respondents or their counsel.</p> <p>Issue No. 1 has been couched in such a manner or language that transcends and cut across the provisions of the Act and the rules relevant to the issue on hand.</p> <p>The sheriffs and Civil Process Act cap S.6 laws of the Federation of Nigeria 2004 at Sections 96, 97 and 98 are provision with regards to;</p> <p>i.    Service of the Writ in any part of the Federation <br /> ii.    Endorsement of Writ meant for service outside a state <br /> iii.    Writs which should be endorsed and marked as concurrent.</p> <p> I will endeavor to reproduce those Sections in full thus:-</p> <p>“Section 96 (1) A writ of summons issued out of requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory<br /> (2) such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued”</p> <p>“Section 97.Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such State or the capital territory, have endorsed thereon a notice…”</p> <p>“Section98. A Writ of Summons for service out of the state or the capital Territory in which I was issued may be issued as a concurrent Writ with one for service within such State or the capital territory and shall in that case be marked as concurrent.”</p> <p>As indicated before, Section 97 and 98 are provisions requiring the endorsement of the originating process. Thus the Writ of summons or any other originating Process being issued and directed for service in a state other than the state issuing it shall have on the writ, the appropriate endorsements as prescribed at Sections, 97 and 98 respectively. From the wordings of the two provisions, compliance is mandatory and non-compliance will lead to the writ or service of it as voidable. See: Odu’a Investment Ltd Vs. Talabi (1997)10 NWLR (Pt. 523) 1 (SC). Same goes for the Writ or other Originating Process for which leave of court or Judge was required before issuance and service outside jurisdiction. Failure to obtain leave to serve on a defendant outside jurisdiction of court renders the issuance of the Writ and service as irregular and can be set aside by defendant provided that he took no steps before approaching the court to set aside the writ. See: Odu’a Investment Ltd V. Talabi (supra); Korum Ltd Vs. Intra. Trust.(2010) LPELR – 4408 (CA).</p> <p>The big question here is whether the appellant has not jumped the gun when he failed to seek leave of Court at the point of issuance and service of the originating summons?</p> <p>Learned counsel for the appellant in his brief has argued that by the peculiar facts of this case, it was not necessary to seek leave to issue and serve the originating process given the facts that:</p> <p>i.    The territorial jurisdiction of the Federal High Court extend to cover the entire Nigerian State.<br /> ii.    The appellant initiated proceedings at the Federal High Court, Abuja against defendants/respondents who see addresses for service was endorsed on the writ, for service in Abuja, Federal Capital Territory.</p> <p>The Federal High Court was established by virtue of the Constitutional provision at Section 249 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Federal High Court Act Cap, F 12, LFN, 2004 at Section 1. Whereas the Constitution of the Federal republic of Nigeria defines the modus operandi in termsof jurisdiction over the subject matter the court can function which is Section 251, it is the Federal High Court Act that delimits the territorial scope or extent over which the court can operate. By Section 19 (1) of the Act the Federal High Court was conferred with and has jurisdiction to operate and carry out its functions throughout the Federation. Thus the whole of the territory of Nigeria State constitute one (1) Constituency, so to say, over which the Federal High court can function and the Act having thus delineated the operational areas for the Federal High Court is it within the legislative intent for the litigant to first seek leave of that Court to enable him, serve a Writ or any other Originating Process at a place in Federation other than the place the writ was issued? That is the question.</p> <p>The Federal High Court (Civil Procedure) rules, 2009 make provisions under order 6 on how service of court process can be effected. It is in 2 (two) parts. It can be observed that part ‘A” which deals with service within jurisdiction has no provision or requirement for application for leave to be made before personal service is effected. See order 6 rule 2. Contrariwise is part “B” of Order 6 on service out of Jurisdiction. See: Order 6 rules 13, 17, 18 and 31. It follows therefore that leave to issue and serve a Writ is not required where the writ is to be served within jurisdiction.</p> <p>The term or words “outside jurisdiction” when used and applied in relation to service of court process relates in my view to the geographical area not within the territory under the control or supervision of the court and for which it is necessary to seek leave of court to effect service outside the jurisdiction of that court. By the combined reading of Section 19 (1) of the Federal High Court Act and Order 6 of the Federal High Court (Civil Procedure) Rules, 2009, leave of the Federal High Court is not required in my view to effect service of an Originating Process within the territory of the Nigerian State, and section 96 of the Sheriff’s and Civil process Act does not so state.<br /> I am mindful of the decision in Owners of MV. Arabella (Supra) cited and relied on by learned counsel to the respondent where the apex court considered and construed the provision of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976  to reach conclusion that leave of court was necessary to serve a writ in Abuja, having been issued in Lagos. In the 1976 rules, the area that constitutes “outside jurisdiction” was neither defined nor fixed.By the existing rules of the Court i.e Federal High Court Civil Procedure Rules 2009, at Part B of Order 6, leave to Issue and serve a writ is necessary where service is to be effected outside the territory of the Nigerian State but that is not the issue in this case on appeal. The issue rather is whether leave of the Federal High Court is required as a condition for service of a writ issued in one location and directed to be served in another location within Nigeria. No such provision is made under part A of Order 6 of the Federal High Court (Civil Procedure) rules 2009 in the light of Section 19 (1) of the Federal High Court Act, 2004. Therefore on the issue of service of the Writ issued at the Federal High Court I am of the opinion that leave of the Court is not a precondition for service within Nigeria. </p> <p>On the issue of the Endorsement of a Writ issued at the Federal High Court, I think this is a different kettle of fish. Section 97 and 98 of the Sheriffs and Civil Process Act have earlier been referred to but the provision which I think is directly on point is Section 97 of the Act. I am inclined to reproduce same along with the Notice expected to be endorsed on the Writ thus:</p> <p>“Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or Notice required by the law of such state or the Capitals territory, have endorsed thereon a Notice to the following effect (that is to say)-</p> <p>“This Summons (or as the case may be) is served out of the …… State (or as the case may be)……and in the………….State (or as the case may be)”</p> <p>The requirement for endorsement of the Writ in the State other that the State it was issued is mandatory and the legislature was very careful in the use of language such that no one is left in doubt and indeed the plaintiff or claimant. He is not expected to seek leave of court to effect the endorsement on the writ with the NOTICE referred to above as if it were seeking leave  to serve the writ out of the jurisdiction of the Court. All the same the need for endorsement is profound where the writ is to be served in a state other than where it was issued. The effect of the failure of compliance with the requirement of endorsement is fatal to the validity of that Writ. See:-Owners of “MV Arabella” vs. N.A.I.C. (supra) The argument advanced by counsel to the appellant that since he filed his Suit in Abuja where defendants (respondents) also reside, there was no further obligation on the appellant in terms of having to endorse the Writ. In other words he argued that Section 97 of the Sheriffs and Civil Process Act was not applicable to his case. Be it noted that the provision of Sheriffs and Civil Process Act apply to all courts throughout Nigeria and this is discernible from the introductory note which herald that legislation. See: Owners of the “MV Arabella” V. N.A.I.C. (2008) All FWLR (Pt. 443) 1208. The appellant as plaintiff filed his Originating Summons at the Federal High Court, Abuja Judicial Division on the 31stDecember, 2014 wherein he sought a number of reliefs against the defendants now respondent but the court holden in Abuja on the 23rdFebruary, 2015 in its wisdom by an order issued the same date transferred the Suit to Taraba State Division of the same Court for adjudication. See: page 388 of record. </p> <p>There is no question about the power vested in the court below to effect such transfer of cases as it did. Rather the Act establishing the court and the Rules of court vest in the court the power to make such transfers. Section 22 of the Federal High Court Act, 2004 is authoritative. </p> <p>The case having thus been so transferred to Taraba Division of the Federal High Court, it will assume jurisdiction as if the matter was originally filed at that court since hearing must commence de novo but I do not think that this act of transfer confer additional obligation on the appellant or his counsel whose writ or summons was filed and issued in Abuja, Federal High Court Division and addressed to defendants at Abuja. In such a situation, the appellant has no obligation to endorse his writ meant to be served within the same Federal Capital Territory. i.e Abuja. Therefore the appellant cannot be punished for an act over which he has no control. To strike out the originating Summons for want of endorsement seem to overlook the facts of the case. In effect I am in agreement with counsel for the appellant that the writ that is the originating Summons filed and issued in Abuja, in the circumstances require no further endorsement of the writ for service in Abuja. Same should not be reason to strike out or dismiss the suit, the same having duly been issued at Federal High Court Abuja for service in Abuja, Federal Capital Territory. See: Madukolu V. Nkemdelim (1962) 1 SCNLR 342; or (1962) All NLR 587; Attorney General of Federation Vs. Gurdian Newspaper (1999) 9 NWLR (Pt. 618) 187 or (1999) 5 SC (Pt. 111) 99 where held that:</p> <p>“The competence of a court in the exercise of its jurisdiction is determined if it is (a) properly constituted with respect to the number and qualification of its membership (b) the subject-matter of the action is within its jurisdiction (c) the action is initiated by due process of the law an (d) any condition to the exercise of its jurisdiction has been fulfilled.”<br /> It is apparent that the Summons was not endorsed as prescribed under Section 97 of the Sheriffs and Civil Process Act, but this failure to have the writ endorsed does not invalidate the summons  meant for service within Abuja Federal Capital Territory where it was issued. Consequently Issue1is resolved in favour of the appellant. </p> <p>ISSUE No. 2</p> <p>The resolution of issue No. 1 on the question of failure of compliance by the appellant with mandatory provisions of the Act, should dispose of this appeal in its entirety without having to consider other related issues namely issues 2, 3 and 4 but for the fact that this court, being an intermediate appellate court, there is the need to consider and rule on those issues albeit briefly: See: Osunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522; Federal Ministry of Health V. Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Okonjode &amp;Ors. v. Njokanmo de &amp; 2 Ors. (1999) 12 SCNJ. 259; Ifeanvichuku (Osandu) Co Ltd v. Soleh Boneh (NIg) Ltd (200) 5 NWLR (Pt.. 656) 332; (200) 3 SCNJ, 18 </p> <p>Issue No. 2 addresses the question: Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?</p> <p>Issue No. 3Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)<br /> Issue No. 4 is Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?</p> <p>I will now give the summary of submissions made by counsel on those issues thus:</p> <p>Learned counsel for the appellant in arguing issue 2 at pages 11-15 of his brief of argument recalled the facts giving rise to this case on appeal and went ahead to submit that the court below was in error to hold that the appellant lacks locus standi to institute the Suit and his case did not disclose any cause of action.</p> <p>First, on the issue of locus standi he argued that the court below applied the principle of public law in the determination of the question of locus standi here private law applies. It s his contention that in private law, the question of locus standi is merged with the issue of cause of action and he relied on Owodunni V. Registered Trustees (200) 6 SCNJ 399, 417 lines 26 – 27.</p> <p>Second, as to what a cause of action is and how it is determined he referred us to Akiba v. Oduntaan (2000) 7 SC NJ 189, 207; Dantata Vs. Mohammed 9200) 5 SCNJ 17. 26;Yususf v. Akindipe (2000) 5 SCNJ 128, 137; Abubaka V. Babaji Oil (2007) 2 SCNJ 170, 194 – 195.</p> <p>He argued that to determine the cause of action the materials to look out for are the writ of summons and the averments in the Statement of claim to ascertain the actual grouse of the party and the remedy or relief he is seeking. In reference to Yusuf V. Akindipe (Supra) he argued that in the definition of a reasonable cause of action extrinsic evidence or material in form of affidavit evidence is not permissible but the claims of the claimant or plaintiff only to ascertain the jurisdiction of the court. He argued finally on this point that the court below was wrong to have ignored the claims and the reliefs sought by the appellant. He urged on the court to resolve issue 2 in favour of the appellant.</p> <p>In response to Issue No. 2, learned counsel for the respondent took his time to restate the meaning and definition of the terms; locus standi and cause of action and to submit that it is the wrongful act on the part of the defendant which gives the plaintiff the cause of complaint. On this he relied on Attorney General of Bayelsa V. Attorney general of rivers (2006) 12 SCM (Pt. 2) 1 38, 39; Abubakar V. Babaji Oil (2007) 3 SCM 37, 63. He argued that until there is an existent legal right and in frigent of same, a cause of action cannot arise, in reference to Osigwe V. PSPLS management Consortium Ltd. (2009) All FWLR (Pt. 470) 622; Shell Petroleum Development 7 Anor. vs. V.X.M. (2006) 14 SCM (Pt. 2) at 348-385.As to locus standi he argued that a person has standing where the reliefs sought would confer on him some benefits; that the person must show he has some cognizable right to protect in initiating the suit. He relied on Owudunni V. Regd. Trustees (2000) FWLR (Pt. 9) 1455, 1480;FalomoV. Kichina (2005) All FWLR (Pt. 284) 397, 406.By and large, it is argued that the case of the appellant has not disclosed any cause of action and himself as the appellant lacks locus standi. He urged the court to resolve this issue in favour of the respondent.</p> <p>In relation to Issue 3 counsel for the appellant cited Order 13 Rule 35 (5) of the Federal High Court Rules to submit that whether for the Respondents to file their counter-affidavit in opposition to the originating summons they chose to raise an objection. It is argued that by the failure to contest the Originating </p> <p>Summons, they had admitted the facts contained in the affidavit in support of the Originating summons and the court below ought to have entered Judgment for the appellant. He relied on Bakare V. Ajose Adeoj on (2014) 15 CNJ (Pt. 1) 2o2, 232-233; Onatohokan V. Wema Bank (2011) 5 SCNJ 266, 282 to further submit that where a defendant chose to file an objection the locus standi of the plaintiff without filing a defence alleges that the plaintiff has not disclosed reasonable cause of action, he is deemed to have admitted the facts in the Originating Process or Statement of claim. In that case it is for the court to enter Judgment over the originating Process in favour of plaintiff. He argued that the court below abdicated its responsibility and therefore call on this court in exercise of the powers under Section 15 of court of appeal Act to evaluate evidence of the material before the court and enter Judgment for the appellant accordingly.</p> <p>In response to this issue counsel for the respondent argue that the call on this court to enter Judgment for the appellant based on the originating Summons was premature so far has hearing over the same was yet to be taken citing Hashidu V. Goje (2004) All FWLR (Pt. 228) 662-695</p> <p>Counsel for the appellant arguing issue No. 4 has submitted that the court below ought to have entered Judgment for the appellant on the Originating Summons so far as there was no counter-affidavit to controvert facts deposed therein the implication of which is that the averments thereto were admitted, rather the court below glossed over issues including the issue of evaluating the affidavit evidence attached to the Originating Summons and documentary Exhibits annexed to the affidavit, among other issues.</p> <p>In response to those submission on Issue No. 4 it was argued that the objection raised by the respondents was akin to a challenge on the jurisdiction of court to entertain the case and as such issue relating to jurisdiction of court can be raised any time without having to file a defence or a counter-affidavit. He relied on several cases including Elebanyo V. Dawodu (2006) All FWLR (Pt. 328) 604; Ebge V. Alhaji (1990) 1 NWLR (Pt. 128) 546; Onibudo V. Akibu (1982) All FWLR 207; Odire V. Obor (1974) N SCC 103, 107.</p> <p>OPINION<br /> The terms “locus standi” and “cause of action” have become familiar legal jargons in our jurisprudence owing to their application and usage and our law books are now replete with decisions of courts on these area of our law.</p> <p>Simply put locus standi denotes the legal capacity to institute proceedings in a court of law.it is used interchangeably with terms like ‘standi” or “title to sue” thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or alternately if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on the facts of each case. See: Senator Adesanya V. President, Federal Republic of Nigeria (1981) 5 SC 69 or (1981) All NLR 1. See further definition in Akinfolarin V. Akinnola (1994) 4 SCNJ (pt. 1) 30, 61; Omodunni  Vs. Regd. Trustees (2000) 6 SCNJ 399, 417. It follows therefore that when the locus standi of plaintiff is challenged it is the originating process that the court need to look at to discover the standing of the plaintiff and not any other document. The statement of claim or any other originating process is the cynosure of the exercise. See. Disu V. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government V Sestisione H. Nigerian Ltd (2012) LPELR - &amp;936 (CA).A cause of action on the other hand, is defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. It is the state of facts which gives a person the right to judicial reliefs see; Ojukwu v. Yar’adua (2009) All FWLR (Pt. 482) 1065, 1119-120 Abubakar V. BabajiOil92007) All FWLR (Pt. 362) 1855, 1887-1888; NPA Plc. Vs. Lotus Plastic ltd. (2006) All FWLR (Pt. 297) 1023. 1038. Like the Issue of locus standi, cause of action can be ascertained by reference to the Statement of claim or any other process originating the action. See: Attorney General Kwara State Vs. National Judicial Council (2010) LPELR – 5009 CA).</p> <p>ON reason which necessitate the objection being taken at the court below is an account of standing. It is alleged that the plaintiff (appellant has no locus standing to institute the action. It is also alleged that the suit does not disclose reasonable cause of action among others. These facts were deposed to in the affidavit in support of the objection taken at the trial court. It is clear in the ruling delivered by it at pages 431-457 particularly pages 455-457 heavily relied on what it described as uncontroverted affidavit evidence of the respondents to uphold the objection and thus the suit was struck out.</p> <p>In the determination of the question whether or not plaintiff’s case disclose a cause of action or the plaintiff has locus standing, the approach which the courts of the land have approved is to look at the Statement of claim or any other Originating Process so as to ascertain those claims. It is thus a wrong approach when the court below resorted to and relied on the affidavit evidence in support of the Motion on Notice raising objection to strike out the Suit for want of standing to discover whether the suit disclosed any reasonable cause of action or whether the plaintiff has locus standi.</p> <p>The appellant, by the originating Summons filed by him said he partook or participated in the exercise leading to the Primary Elections conducted by the 2ndrespondent on the 11th December, 2014 for the purpose of nominating a candidate to represent Taraba South Senatorial District at the Senate. He said he is a card carrying member of the Peoples Democratic Party and an aspirant in the said Primary Election. He annexed Exhibits A, B and C to the Originating Summons as documents evidencing his membership of the party, evidence for payment of nomination and expression of Interest Form to contest the primaries (Exhibits B and C). So what greater evidence is there to show as would accord the Appellant the locus standi in this case on appeal? He is an aspirant.</p> <p>Section 87 (9) of the Electoral Act, 2010 provides thus:</p> <p>“87 (9) Notwithstanding the provisions of this act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress””</p> <p>It is my view that the appellant has brought himself within the provisions of the Electoral Act as referred to above to confer on him the necessary locus standi. See: Emenike Vs. PDP (2012) LPELR-7802 (SC) or (2012) All FWLR (Pt. 1640) 1261.In ArdoV. Nyako (2014) All FWL (Pt. 744) 130, 160 the apex court held:</p> <p>“Under the said section 87 (9), an aspirant who can invoke the jurisdiction of the court and as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election”</p> <p>See further decision in Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.</p> <p>The question earmarked for determination in the Originating Summons is to this effect:</p> <p>“1. Whether the 2nd defendant for the purpose of selecting its candidates for Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general Elections can adopt a procedure other than that provided in 2nd defendant’s Electoral Guideline for Primary Elections 2014, the 2nd defendant’s Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended).”</p> <p>By virtue of the appellant being an aspirant in the Primary Elections and the complaints laid by him relative to that election, the (appellant) has the required locus standi, to institute the action as he did. Consequently, the court below was in error when he struck out the Suit on this account. </p> <p>Issues 3 and 4 are interwoven. Issue No. 3 in particular seek to invoke the powers of this court under Section 15 of the Court of Appeal Act so that issues presented in the Originating summons are thrashed out on the merit at this level based on the materials available and are before this Court. This call I think is premature and this court cannot at this stage consider that request. The question before this court on appeal arose from interlocutory ruling at the court below. The merits of that case have not been considered by that court. To urge on this court to hear the case on the merit is to usurp the functions of the trial court and we reject this call.</p> <p>On the whole therefore this appeal succeeds in part and same is allowed. The ruling delivered at the court below on 17th September, 2015 in Suit No. FHC/TAR/SC/5/2015, Motion No. FHC/TAR/M/24/2015 is hereby set aside. Consequently, this case is remitted to the Chief Judge of the Federal High Court who shall assign it to a Judge other than Justice D. U. Okorowo for hearing on the merit.<br /> Ordered accordingly.</p> <p>JUMMAI HANNATU SANKEY, J.C.A.<br /> I agree.</p> <p>BIOBELE ABRAHAM GEORGEWILL, JCA:</p> <p>This appeal revolves in the main around the issues whether an originating summons filed in one State of the Federal Republic of Nigeria or the Federal Capital territory High Court and for service within the same state or the Federal Capital Territory requires leave to be issued and must also be endorsed for service out of the said state to be valid; whether a person who participated in the primary election of a Political Party for the nomination of its candidate for general election is a person with or without the requisite locus standi to institute an action in a court of law to challenge the outcome of the said primary election by virtue of the provisions of Section 87 (9) of the Electoral Act 2010 as amended?</p> <p>In the lead judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA, with which I am in complete agreement with the lucid reasons and impeccable conclusions reached therein, these crucial issues have been admirably resolved in favor of the Appellant as against the Respondents.  I shall by way of contribution to the very lucid lead judgment just say a word or two on some if these crucial issues.</p> <p>In law, it has long been well accepted that to determine the locus standi of a Plaintiff, it is only the averments in the statement of claim or depositions in the affidavit in support of originating summons and not the averments in the statement of defence or depositions in the affidavit in supporting of notice if preliminary objection or counter affidavit to the originating summons that is to be carefully scrutinized to see whether or not the plaintiff indeed has the locus standi to institute the claim against the defendant.  See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1; Owodunmi V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455; Attorney General of Kwara State V. NJC (2010) LPELR 5009 (CA).<br /> My lords, regrettably, the Court below considered both the affidavit in support f the originating summons albeit very perfunctorily and the affidavit in support of preliminary objection in-depth and believed the depositions in the affidavit in support of the preliminary objection as deemed admitted in the absence of any counter affidavit of the Appellant and relied solely on the affidavit of Respondents in support of the Preliminary Objection to dismiss the Appellant’s suit.</p> <p>In my humble view, since in law the only document to consider in determining the locus standi of a Plaintiff is the originating process and the statement of claim and not the statement of defence or affidavit in support of preliminary objection, the court below erred gravely in law to proceed n the manner it did and which resulted into the erroneous dismissal of the Appellant’s suit.  See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1; Owodunmi V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455.</p> <p>Now, was leave required in the circumstances of this case for the issue of the originating summons by the Appellant against the Respondent on the face of the address for service of the Respondent and the place of the issue of the originating summons?  Heavy and indeed total reliance was placed on the decision of the Apex Court, the Supreme Court in Owners of M. V. Arabella V. NAIC (2008) all FWLR (Pt. 443) 208 by the Respondents in their contention that without leave of Court to issue the originating summons, the Appellant’s suit was incompetent, an argument which the court below by its ruling endorsed.</p> <p>However, a careful perusal of the decision in the Owners of M. V. Arabella V. NAIC (Supra) would readily reveal that it was decided on the provisions of Order 10 rule 14 of the Federal High Court Civil Procedure rules 1976 and Section 97 of the Sheriffs and Civil Process Act 2004 and not on any of the provisions of the extent rules of the court below, which by Order 6 Rule 3 of FHC Rules 2009, defined service out of jurisdiction to mean service outside the Federation of Nigeria.</p> <p>My lords, in the instant case in the originating summons was filed in Abuja with all the addresses for service also at Abuja.  The suit was suo motu subsequently transferred to the Taraba Judicial Division of the court below by the court.  See page 338 of the Record.  In the ruling appealed against, the court below held that the leave of court was required to issue and serve the originating summons on the Respondents at Abuja outside the jurisdiction of the Jalingo Judicial Division of the court below.</p> <p>Now, was the court below right in this decision?  I do not think so!  By the very clear provision of Order 6 Rule 31 of the FHC Rules 2009, on leave of court was required to issue and serve an originating process filed in any Judicial Division of the Federal High Court within the Federation of Nigeria and thus in law the Appellant required no leave of court as erroneously held by the Court below.</p> <p>At any rate, on the undisputed facts on which all the parties are ad idem, the originating summons was issued in Abuja and for service on the parties in Abuja and therefore there was absolutely no need for any leave to issue and serve same on the Respondent as one being served out of jurisdiction as erroneously held by the court below.  In my finding, in the circumstances of the established facts in this case leave to issue the originating summons for service out of jurisdiction was completely unwarranted and unnecessary as no such leave was required.</p> <p>The court below had also held without being called upon by either of the parties that the originating summons of the appellant was also incompetent having not been marked and endorsed as a concurrent writ for service out of jurisdiction pursuant to Section 98 of the Sheriffs and Civil Process Act 2004.  See pages 453 – 454 of the record.</p> <p>My lord, the law has long been well settled, and it no longer admits of any contrary arguments, that while a court has the plentitude of power to raise an issue suo motu but it must never decide on such issue raised suo motu without first calling on the parties to address it on the issue raised suo motu.  Consequently, any issue raised suo motu by a court, as did the court below in the issue of endorsement as concurrent writ pursuant to SECTIO 98 of the Sheriffs and Civil process Act 2004, and in which any decision is reached without first calling upon and hearing the parties on such an issue raised suo motu is one arrived at in utter breach of the right to fair hearing of the parties and thus void and thus renders both the proceedings and judgment of such a court without much ado.  A party affected adversely by such a decision is in law entitled exdebito justitia to have such an invalid order set aside.  See Iriri V. Erhurhobora (1991) 2 NWLR (Pt. 173) 252; Badmus V. Adegunde (1991) 11 NWLR (pt. 627) 493; Balogun (1978) 1 SC 53; Jev &amp; anor V. Iyortyom &amp; Ors (2014) LPELR 23000 (SC).</p> <p>In Eholor V. Osayande (1992) 1 NWLR (Pt. 249) 524, Nnaemeka JSC, had pronounced with finality thus:</p> <p>“In my respected opinion, our system of appeals in our adversary system does not permit courts to dig into the records to fish out issues, no matter how patently obvious, and without hearing the parties use it to decide an issue in controversy between the parties to the appeal.  It runs counter to the impartial status and stance expected of a judge in the system.  It is better that the parties raise and argue it by themselves.  But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.”</p> <p>There is also the very crucial issue of the allegation of non compliance with the provision of Section 87(9) of the Electoral Act 2010 as amended and the PDP guidelines for the conduct of primaries for the election of its candidates for the 2015 General Election as raised by the Appellant in the originating summons against the Respondents and whether such an issue raises a political question only and which is non justifiable in law and thus does not confer any locus on the Appellant?</p> <p>My lords, it is true in law that the question of who is a candidate of a Political party is a clearly a political question and which is non justifiable being at the sole discretion or power of the party concerned as its internal affairs over which no court has the jurisdiction to superintend.  See Onucha V. Okafor (1983) 2 NSCC 494.  See also Taiwo V. Adeboro (2011) all FWLR (Pt. 584) 53; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012.</p> <p>However, be that as it may, it is also equally true in law that a person who participated as a candidate in a primary election of a Political party and alleges a breach of Section 87(9) of the Electoral Act 2010 as amended and non compliance with the guidelines of that Political party for the conduct of the primaries for selection of its candidate for election has the locus standi to sue and such an issue is not a political question and it thus justifiable.  See Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. P. D. P. (2013) All FGWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FWLR (Pt. 735) 243; Daniel V. INEC (Supra).</p> <p>It was also vehemently contended for the Respondents that for a person, who had participated in a primary election of a Political Party, to have the locus to sue over the conduct and outcome of such a primary election he must also be on respect of a valid primary and thus once a person alleges that the primary was invalid je shoots himself in the food and renders his claim incompetent.  Reliance was placed on Lado V. CPC (2012) All FWLR (Pt. 607) 545 and Daniel V. INEC (supra).</p> <p>Interestingly, having taken time to thoroughly read through the law reports of these cases, I am unable to agree with the contention of the Respondent’s counsel that they are decisions to the effect as contended by them in urging this court to hold that the Appellant lacks the locus standi being not the person who emerged victorious at the challenged primary election of the 2nd Respondent.</p> <p>On the contrary, the very clear position of the law as resonate in virtually all the decisions of the Supreme court ant his court as touching on the issue of locus standi pursuant to Section 87(9) of the electoral Act 2010 as amended is to the well settled effect that a person once he was a candidate at the primary of Political party and who alleges a breach of the Electoral Act 2010 as amended and guidelines of the affected Political party indeed has the locus standi so sue by virtue of Section 87(9) of the Electoral Act 2010 as amended and a such claim, such as the Appellant’s claim in the instant case, is clearly justifiable in law and thus clothing such a person, such as the Appellant, with the requisite locus standi to sue contrary to the perverse decisions of the court below, which cannot be allowed to stand.  See Alhassan &amp; anor V. Ishaku &amp; Ors. (2016) LPELR 40083 (SC).  See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (pt. 738) 1012 @ p. 1039.  Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. P. D. P. (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) all FWLR (Pt. 607) 545; APGA V. Anyanwa (2014) all FWLR (Pt. 735) 243.</p> <p>It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the Appeal is pregnant with merit and perforce succeeds.  Consequently,   I too allow the appeal in part.  However, in the circumstances of this case, I also do not think that this is a proper case for this court to invoke its power under section 15 of the Court of Appeal Act 2004 to hear and determine the appellant’s suit at once as urged upon this court by the appellant’s counsel.  In my view it would be better as it is in the interest of justice that both parties return to the court below and join issues on the claims of the appellants and the matter be heard and determined on the merit.  In the result, the Appellant’s suit is hereby remitted to the Chief Judge of the Federal High Court for expeditious hearing and determination on the merit according to law before another judge other than D. U. Okorowo J.</p> <p>?<strong style="line-height:1.6">COUNSEL</strong></p> </div> </div> <div> <div> <p>1.    AbbassAjiya Esq., for the Appellant<br /> 2.    E. J. Akanmode Esq., (with M. I. Simon, E. A. Ibrahim Effiong and Ahamed Esq.) for the Respondents</p> </div> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-b7f131eae884d678e866e54cd87c28f6fbda337022517417ddc2b7e48d9de303"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p> </p> <p> </p> <p><strong>IN THE COURT OF APPEAL</strong></p> <div> <div> <p><strong>Holden at Yola</strong></p> </div> <div> <div> </div> </div> <div> <p><strong>Between</strong></p> <div><strong>APPELLANT</strong></div> <p>RIMAMNDE BITRUS NUHU</p> <p>and</p> <div><strong>RESPONDENT</strong></div> <p>1.    SENATOR EMMANUEL BWACHA<br /> 2.    PEOPLES DEMOCRATIC PARTY (PDP)<br /> 3.    INDEPENDENT NATIONAL ELECTOAL COMSSION (INEC)</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (DELIVERED BY SAIDU TANKO HUSAINI, JCA)</strong></p> <p>This appeal is against the Ruling delivered at the Federal High Court, Jalingo in the Taraba Judicial Division on the 13th September, 2015 in Suit No. FHC/TAR/M/24/2015.</p> <p>The Appellant as plaintiff instituted action at the Federal High Court, in the Federal Capital Territory, Abuja by way of the Originating Summons dated and filed on the 31st December, 2014 wherein he sought for the determination of the sole question, that is:</p> <p>Whether the 2nd defendant for the purpose of selecting its candidates for the Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general election can adopt a procedure other than that provided in 2nd defendant’s Electoral guideline for Primary Elections 2014 the 2nd defendants Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended) .</p> <p>As a consequence the plaintiff (Appellant) sought all the reliefs covered the Originating Summons as follows:</p> <p>“WHEREOF the plaintiff (s) the followings:</p> <p>(i)    A DECLARATION that the 2nd defendant cannot adopt any procedure other than that provided in the 2nd defendant’s Electoral Guideline for Primary Elections 2014, Section 50 95) of the 2nd defendant’s Constitution 2012 (as amended) and Section 87 (4) (c) (i) &amp; (ii) of the Electoral act, 2010 (as amended) for the purpose of selecting candidate for Senate to represent Taraba State South Senatorial District in Taraba State for the 2015 General Elections<br /> (ii)    A DECLARATION that the 2nd defendant having not complained with its own Electoral Guideline for Primary Elections 2014, Section 50 (5) of the 2nd defendant Constitution 2012 (as amended) and Section 87 (4) (c) (i) &amp; (ii) of the Electoral Act, 2010 (as amended0 has not validly conducted for senate to represent south Senatorial District in Taraba State, for the 2015 General Election.<br /> (iii)    AN ORDER nullifying the primary elections conducted by the 2nd defendant on the 11th December, 2014 for the purpose of nominating a Senate candidate for the 2nd defendant to represent Taraba South Senatorial District at the Senate for the 2015 General Elections <br /> (iv)    AN ORDER directing the 2nd defendant to conduct a fresh primary election in accordance with the 2nd defendant’s Electoral Guideline for Primary Elections, 2014 in compliance with the 2nd defendant’s Constitution 2012 (as amended) and the provision of the Electoral Act, 2010 (as amended0 for the purpose of nominating a Senate candidate for the 2nd defendant to present Taraba State Senatorial District in Taraba State.<br /> (v)    AN ORDER restraining the 3rd defendant from accepting and /or recognizing or dealing in any manner with the name of the 1st defendant as candidate of the 2nd defendant for the Senate for Taraba South Senatorial District for the 2015 General Election</p> <p>AND FOR FURTHER ORDERS (S) as this Honourable Court may deem fit to make in the just determination in the circumstances.”</p> <p>The Originating Summons had in support an affidavit of 25 paragraphs and certain documents among which are the Electoral Guidelines for Primary Election 2014 of the Peoples, Democratic Party and the Constitution of the Peoples Democratic Party. The Originating Summons is further accompanied with the written address of counsel as at the date of filing on the 31st December, 2014. See pages 142 – 157 of record. </p> <p>At the sitting of the 3rd February, 2015 at Abuja, the Federal High Court by an order issued the same date, caused the suit that is, the Originating Summons to be transferred to the Federal High Court, Jalingo Tarba </p> <p>State wherein, at the Registry, the Suit was assigned with No. FHC/TAR/SC/5/15 and thereafter caused the process to be served on the  defendants.</p> <p>Upon service of the Originating Summons, the 1st and 2nddefendants, now respondents filed their separate conditional appearance, and thereafter filed their separate and distinct Motion on Notice, that is Motion on Notice No. FHC/TAR/M/28/2015 filed on the 30th August, 2015for the 1st defendant/respondent and Motion on Notice No. FHC/TAR/M/27/2015 filed 30th April, 2015 for the 2nd Respondent. The Appellant in turn filed his response only in respect of the application by the 2nd defendant (respondent). In both applications, the 1st and 2nd defendants (respondents) urged on the court below to strike out or dismiss the Originating Summons for being grossly incompetent or null and void based on the grounds set out in the respective Motions on Notice, the affidavits in support of the two Motions and their  written addresses. Upon hearing of the two applications on the 20th May, 2015 and the response of the appellant, the court below, in 2 (two) separate Rulings delivered the same day on 17th September, 2015 declined jurisdiction and upheld the objection of the 1st and 2nd respondents.</p> <p>Peeved by the court below the plaintiff by the Notice filed on the 22nd October, 2015 lodged an appeal to this court on 7 (seven) grounds as contained in the record of appeal at pages 459 to 466. The record of appeal as has since the 16th November, 2016 been transmitted to this court.</p> <p>In the briefs of argument filed and exchanged between counsel 4 Issues as formulated by the Appellant in his brief filed on the 23th December, 2015 at pages 6 – 7 were agreed upon and indeed adopted by the 1st and 2nd respondents in their joint brief of argument filed on the 9th February, 2016 at paragraph 5.2 of the brief as issues for determination in this appeal savethe point(s) of Preliminary Objection raised and is subsumed in the respondents’ brief of argument in opposition to this appeal at pages 4 – 12 of the said brief.</p> <p>A separate Notice of Preliminary Objection to the appeal which has the sameeffect was filed along with the brief of argument for the 1st and 2nd respondents on the 9th February, 2016. The 3rdRespondent (INEC) has not filed any brief of argument and they were not represented by counsel on the date the appeal came up for hearing.</p> <p>Mr. E. A. Ibrahim Effiong at the hearing of the appeal on the 23rd May, 2016 invited our attention to his Notice of Preliminary Objection filed both as a separate process and as a process already incorporated into the brief of argument for the respondents and argument canvassed thereto, and he adopted same to urge on the court to uphold the Objection and strike out the appeal for reasons canvassed in their brief of argument.<br /> Mr. Abbass Ajiya, learned counsel for the appellant in his response to the Preliminary Objection referred us to the reply brief filed by them 9th March, 2016 in opposition and to arguments canvassed therein in urging us to discountenance the Preliminary Objection.</p> <p>Being the process which seeks to terminate this appeal in lamine, there is the need to first examine the complaints arising from this objection.</p> <p>The sole objection is itself predicated on the competence of the appeal and this is how the 1st and 2nd respondents couched it in their Notice of Preliminary Objection, thus:-</p> <p>“The entire Appeal is a mere academic exercise in that even if the issues raised therein are resolved in favour of the appellant the fortune of the appeal would not change in the face of the unappealed findings in the decision emanating from the objection of the 2nd Respondent thus rendering the appeal grossly incompetent.</p> <p>PARTICULARS OF THE SOLE GROUNDS</p> <p>i.    The 1stand 2nd Respondents filed separate and independent Applications challenging the jurisdiction of the Lower Tribunal on 9 and 5 grounds respectively as could be discerned from pages 260-319 and 320-376 of the printed Record.<br /> ii.    In the application of the 1st Respondent, 7 issues were formulated from the 9 grounds and in that of the 2ndRespondent 5 issues were formulated from the 5 grounds. We refer this Court to pages 273 and 331-332 of the Printed Record.<br /> iii.    The Lower Court upon hearing the Applications reformulated two issue for determination in respect of the Objection of the 1stRespondent and 3 in respect of that of the 2nd Respondent. See pages 421-422 and 450 of the Printed record.<br /> iv.    The Lower Court on 17th September, 2015 delivered two separate and distinct rulings as could be gleaned from pages 399-430 (ruling on the objection of the 2nd Respondent) and pages 431-457 (Ruling on the Objection of the 1st Respondent).<br /> v.    The two rulings supra constituted two separate, distinct and independent decisions.<br /> vi.    The Appellant filed a sole Notice of Appeal without stating the decision appealed against and in fact from the Notice and grounds of Appeal, it could safely be referred that the appeal is limited to the decision arising from the Objection of the 1st Respondent only on the grounds infra:’’</p> <p>Learned respondents’ counsel formulated just one (1) issue as arising for determination from those grounds of objection thus:</p> <p>Whether in the face of damaging specific findings of the Court below against the Appellant is the objection of the 2ndRespondent which this appeal is unrelated especially to the effect that this appeal is not rendered academic?Arguments canvassed in support of the lone issue can be seen at pages 7 – 12, paragraphs 4.1 -4.16 by which learned counsel for the 1st and 2nd respondents alluded to the 2 (two) separate applications made by them at the court below. Be seen at pages 252 – 319 and 320 – 376 of the printed record. He noted that the court below gave two separate and distinct rulings in respect of those two applications and he referred us to the two ruling at pages 399 – 530 and 431 – 457 of the printed record. Learned counsel argued that all the grounds of appeal as highlighted in particular (iv) of the particulars of grounds of objection arose from the decision or ruling given in respect of the objection of the 1st respondents alone and thereby leaving the decision and the findings contained therein in respect of the objection of the 2nd respondents as still extant. He referred in particular to the findings of the court below at pages 428 – 429 of the record which he said were not appealed against. These findings he said, are that the suit disclosed no locus standi, cause of action and that the matter was not justiciable. He contended that this finding of which there was no appeal was peculiar to the objection of the 2nd respondent only. He went further to submit that where the findings of a court are not specifically challenged the same remain undisputed and is deemed admitted citing in support the  decision in N.B.C.I. Vs. Integrated Gas (2005)2 SCM 67, 205; Dabo v. Abdulahi (2005) 4 SCM 52, 69; Olukoya v. Asheru (20060 7 SCM 175, 188; Standard Nig. Entr. Vs. NBCI (2006) 4 SCM 194, 2005; Bhojsons Plc V. Kalio (2006) 4 SCM 1 13 – 14 in consequence of this it is argued that the instant appeal even if it succeeds will have no meaningful impact on the appellant who derived no benefits from the ruling so far as there was no appeal over the findings of the same court in the second ruling. To this end he said the appeal was not only academic and hypothetical but frolicsome. He cited a number of authorities on that point among which are: (i) Plateau State V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, 419. (ii) Adeogun V. Fashogbon (2009) All FWLR (Pt. 449) 531, 552 – 553,. In such circumstance, it is furtherargued, the court will not act in vain to entertain questions of academic nature lacking practical utility value. He relied on Nwora V. Nwebueze (2012) All FWLR (Pt. 613)1824. The appeal, it is further argued, being academic in nature, this court lacks jurisdiction to determine academic and hypothetical questions, relying on Ikyenya Vs. PDP (2012) All FWLR (Pt. 628) 837, 853. Such question or appeals he said should be discountenanced by the court. He relied on quite a number of authorities including (i) Ugba V. Suswan (2014) All FWLR (Pt. 748) 8 25, 855 (ii) Audu V. Attorney General of the Federation (2013) All FWLR (Pt. 667) 607), 024. (iii) Abe V. University of Ilorin (2013) All FWLR (Pt. 697) 682, 698 (iv) Oke V. Mimiko (2013) All FWLR (Pt. 693) 1853, 1879 (v) Inec V. Atuma (2013) All FWLR  (Pt. 697) 619, 633.</p> <p>He argued further and submitted that a court is competent when:-</p> <p>(a)  It is properly constituted.<br /> (b)The subject-matter of the case is within the jurisdiction of the court and there is no feature in the case preventing the court from exercising its jurisdiction, and<br /> (c)  The case comes before the court duly initiated by due process and upon fulfillment of any condition precedent. </p> <p>He cited: Hamza &amp; Anor. Vs. Sani &amp; Ors (2015) 1 SCM 174, 191; APGA Vs. Anyawu (2014) All FWLR(Pt. 735) 243, 263; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261, 1289; Akpangbo-Okadigbo Vs. Chidi &amp; Ors. (2013) 3 SCM 141, 202 to urge us to strike out or dismiss this appeal on this ground.</p> <p>In the reply brief filed on the 9th March, 2016, the appellant questioned the competence of the brief of argument filed by the Respondents stating that the brief was in excess of 3o page limit as ordained or allowed by the Rules under Order 18 Rule 6 (a0 of the Court of Appeal Rules, 2011, that is, putting together 1st and 2nd respondents’ brief of 28 (twenty eight) pages and the brief containing the list of legal authorities filed by them consisting of 3 (three) pages. He argued that this failure of compliance with the rules meant that no Brief of argument was filed by the 1st and 2nd Respondents, the consequence of which is that they cannot be heard on oral argument and they are deemed to have admitted the truth of the contents of the brief filed for the Appellant. He cited in support the decision in Dilibe V. Nwakozor (1986) 5 NWLR (Pt. 41) 315, 333; Oyesoh V. Nnebedan (1992) 3 SCNJ129, 153; Nwokoro Vs. Onume (1990) 3 NWLR (Pt. 136) 22, 32; Unity Bank Plc. Vs. Edward Bouari (2008) 2 SCNJ 116. </p> <p>In response to the specific complaints raised by the preliminary Objection, the Appellant or his counsel canvassed the lone issue distilled by him and that is, whether the Preliminary Objection as argued by the Respondents, has merit?</p> <p>It is argued that the 2 (two) rulings delivered at the court below at pages 399 and 431 of the record of appeal were products of the same Motion Number i.e FHC/TAR/M/24/15 in the same suit No. FHC/TAR/CS/5/15 both of which were delivered on the 17th September, 2015 by the same Judge, Hon. Justice D. U. Okorowo.</p> <p>To further buttress this point learned counsel referred to the Notice of Appeal in Appeal No. CA/YL/105/15 to submit that the appeal is against the decision of Hon. D. U. Okorowo ,Judge dated the 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.By reference to part 2 of the same Notice of Appeal it is also contended that the Appeal is against the whole decision of D. U. Okorowo delivered on 17th September, 2015 in Suit. No. FHC/TAR/CS/5/15.<br /> Learned appellant’s counsel therefore urged us not to succumb to the arguments canvassed by counsel for the respondents in their brief stating that those submissions bordered on technicalities but urge on the court to deal with the substance in order to achieve substantial Justice.</p> <p>Before I take on the issues raised by the Preliminary Objection, there is equally a fundamental question which throw up a challenge that because of the seeming or apparent defects in the brief of argument filed by the Respondents, there was no brief at all by them and that this court should discountenance that defective brief. I will first address this point.<br /> Going by the records it is discernible that the 1st and 2nd respondents filed their brief of argument on the 9th February, 2016 and the same brief dated the 4th February, 2010 runs into 28 pages.</p> <p>By another process filed on behalf of the 1st and 2nd respondents on the same 9th February, 2016, captioned list of authorities, in respect of the same appeal, that is, Appeal No. CA/YL/105/2015, between the same parties, is a document of 4 pages.</p> <p>Order 18 rules 3(1) and (2) of the Rules of this court on the Forms and Contents of a brief, provide thus:-</p> <p>“3-(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.</p> <p>(2)Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, date and pages of cases reported in the Law Reports or elsewhere including the summary of the decision in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals”</p> <p>It is clear that by this provision, the document or process captioned list of authorities, whether subsumed in the main brief of argument or not are still part of the brief, so far as it is intended to support arguments or submissions contained in that brief which in any case shall not exceed 30 (thirty) pages. See order 18 rules 6 (a).</p> <p>The process filed on the 9th February, 2016 and captioned “List of Authorities” run into 4 pages and these pages when added to 28 (twenty-eight) pages that is the number of pages contained in the 1st and 2nd respondents’ brief of argument will run into 32 pages or thereabout which is in excess of the 36 page limit allowed by the rules of court.</p> <p>The consequence of filing a brief of argument in excess of 30 page limit is the provision which empower the registry of this court to refuse to accept such briefs upon presentation of same for filing. See Order 18 rule 6 (c) of the rules of this court.</p> <p>Now, the brief of argument for the 1st and 2nd respondents like the brief of argument for the appellant are now before us in this court. It escaped the eagle eyes of the registry albeit undeservedly and has gone beyond the registry, and it is now before us, in this court. Should this court at this point in time ignore this brief as argued by the appellant or his counsel in their brief? Not too long ago this court was confronted with a situation similar to this and this is what I said at that time, in the case of Iorundij Atau Azanke&amp;Anor V. Emmanuel Machoko (unreported), a decision delivered on the 26thMay, 2016 in Appeal No. CA/YL/48/2014 and I quote in Extensor, thus:-<br /> “Appellants’ brief of argument before the court, unarguably, runs through 36 pages contrary to the stipulation in Order 18 rule 6 (a) of the rules of this court.</p> <p>Leave was neither sought nor obtained as at the date the brief was filed on the 7/12/2015. There is nothing on record to so suggest that this court by an order has directed the appellants to file their brief of argument in excess of 30 page format as provided for in the rules. This, thus is a case of non-compliance with the mandatory provisions of the Rules. But rules of court are meant to be obeyed and not made for the sake of making them as held in Williams V. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC;  African News papers Ltd V. Owososeni (1995) 2 NWLR (Pt. 375) 110; Opera V. Dawell Schuhom-Berger Nig. Ltd. (1995) 4 NWLR (Pt. 390) 440. There is a purpose for making the rules and that is, to check verbosity and to ensure that brief of argument are not unwieldy long winded and cumbersome. Failure of compliance with rules of court may not invalidate proceedings or court process see order 20 of the rules of court but such non-compliance may invite sanctions in other cases as for instance order 18 rule 6 (c) of the rules of this court provide that every brief which fail to comply with the page limit and page size requirements shall not be accepted by the Registry, for filing. This provision of the Rules cast on the Registry the duty of having to scrutinize all documents or papers especially briefs of argument submitted for filing to ensure compliance. As a clearing house, the registry must not shirk in its responsibilities. It has a duty to sieve the chaff from the grain and refuse to accept all or any Brief of argument for non-conformity with set standards at the point of filing. This is a wake – up call. </p> <p>Now, Appellants’ briefs of argument of 36 pages, having been accepted and filed at the registry, notwithstanding the provisions of the rules i.e. Order 18 rule 6 (a), and has come before us at this level should the court at the point of hearing discountenance same on account of non-compliance with the rules? I do not think it is the right thing to do, at this stage of the proceedings, to reject briefs of argument of counsel for the Appellant at the point of hearing his case. Rather, this court guided by the principle of fair hearing will be inclined to overlook any inelegance or flaws noticeable in the appellants’ brief of argument and do substantial justice to it as it has a duty to examine the arguments contained therein and decide the case on the merits. See: Obiora V. Osele (1989) 1 NWLR (Pt. 97) 279; Ekpemupolo Vs. Edremoda &amp; Ors LPELR – 1089 (SC).”</p> <p>I still want to stand by those conclusions in the case referred to above and I think my conclusion or opinion there is relevant to the issue on hand in this appeal case hence I adopt same. I do not think it is wise thing to do, to ignore issues raised by the respondents in the Notice of Preliminary Objection. There is need to examine their claim by that objection.</p> <p>The 1st and 2nd respondents indeed respectively filed their two separate Motions upon being served with the appellant’s Originating Summons. The Motion dated the 30th August, 2015 and filed on behalf of the 1st respondent on the same date was directed at the Jurisdiction of the court below to entertain the claim. So is the Motion dated and filed on the 30thApril, 2015 on behalf of the 2nddefendant. The court below heard the 2 (two) applications the same day and reserved ruling in each one of them. In the ruling (s) delivered on 17th September, 2015 In Suit/Motion No. FHC/TAR/M/24/2015 the court declined jurisdiction hence this appeal. <br /> I have given thought to all the submissions made by counsel and the authorities cited by them. The gist of the Objection taken lie in the fact that the appeal before us is a sheer waste of time and an exercise in futility such that even if the appeal succeeds, the success will not confer any utility value on the appellant hence the appeal is merely of academic and hypothetical, so far as the appeal over or against 1 (one) ruling or decision leaves the other or the 2nd ruling still extant.</p> <p>I know that the courts over time have refused to indulge and deal with academic and hypothetical questions rather the courts are established to deal with matters in difference between the parties. This is so because academic or hypothetical questions do not help in the determination of live issues in a matter. They are merely frolicsome, not touching or affecting the very tangible and material aspect in the adjudication process. See: Okotie-Eboh V. Manager (2004) 18 NWLR (Pt. 905) 242; Bangboye V. University of Ilorin (1999) 10 NWLR (Pt. 6 22) 290; Owners of MV.  Arabella V. NAIC (2008)11 NWLR (Pt. 1097) 182 or (2008) 34 NSCQR (Pt. 11) 109; Adeogun V. Fashogbon 149 (SC); Yusuf V. Tolushi (2008) 14 NWLR (Pt. 1107) 237 or (2008) 6 – 7 SC (Pt. 1) 164.</p> <p>The question therefore is whether the current appeal is merely academic or hypothetical as being canvassed by the respondents in the light of the ruling at pages 399-430 of the printed record over which it is argued there is no appeal? This is the contention of counsel to the respondents. It is claimed that the current appeal does not relate to the ruling referred to above but the ruling at pages 431-457 of the printed record in respect of the Motion on Notice filed by the 1st respondent</p> <p>There is the need therefore to take another look at the Notice of Appeal so as to discover to which ruling or decision, the appeal relates.</p> <p>The Notice of Appeal state at page 459 of the printed record thus: </p> <p>“NOTICE OF APPEAL</p> <p>TAKE NOTICE that the appellant being dissatisfied with the decision of the Federal High Court of Justice of Taraba Judicial Division, Jalingo, as contained in the ruling of Honourable D. U. Okorowo, Judge dated the 17th day of September, 2015 in Suit No. FHC/TAR/CS/5/1, do hereby appeal to the Court of Appeal, holden at Yola, upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relieves (sic) set out in paragraph 4.<br /> AND the appellant further state that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5”</p> <p>I stop here for now. The decision appealed against unarguably, is the Ruling:</p> <p>(i)    Of Honourable D. U Okorowo, Judge. <br /> (ii)    Dated or delivered on the 17th day of September, 2015<br /> (iii)    In Suit No. FHC/TAR/CS/5/2015<br /> (iv)    In Motion No. FHC/TAR/M/24/2015</p> <p>The decisions referred to earlier at pages 399-429 and pages 431 – 457 both have and retain the characteristics listed as in (i) (ii) (iii) and (iv) above. And that is not all. The appeal is against “the whole decision” and this can be discerned from the second part of the Notice of Appeal – captioned: PART OF THE DECISIONS OF THE LOWER COURT COMPLAINED OF: The word “Decision” as constitutionally defined as Section 318 (1) of the 1999</p> <p>Constitution as amended means:<br /> “any determination of that court and includes Judgment; decree, order, conviction, sentence or recommendation” </p> <p>See Dr. Kubor &amp; Anor Vs. Dickson &amp;Ors (2012) 10 – 11 SC 1; Garuba V. Omo Khodion&amp; 13 Ors. (2011) 6 – 7 .(Pt. V) 89.This definition thus is wide enough to accommodate any ruling or rulings of court as in the instant case on appeal. The appeal by the appellant as presented by the Notice of Appeal under reference is not an appeal  againstjust1 (one) decision but an appeal against the “decisions” of the Lower Court andifI may add, it is an appeal against the decisions delivered by D. U. Okorowo, the Presiding Judge of the Federal High Court of Justice, Taraba State Judicial Division, Jalingo, on the 17th September, 2015 in Suit No. Motion FHC/TaR/Cs/5/2015 in FHC/tAR/M/24/2015.</p> <p>Every Notice of Appeal constains what the subject matter of the appeal is all about. See: Dyagyadi V. INEC (No. 2) (2010) 18 NWLR (Pt. 224) 154 (SC).  The subject-matter or areas addressed in this appeal and to which a complaint has been lodged is with respect to the Issues, among others of:</p> <p>i.    Service of Originating Process<br /> ii.    The issue of non-compliance with the provision of Section 97 and 98 of the Sheriffs and Civil process Act…………..<br /> iii.    The Issue of the Plaintiff’s/Appellant’s lack of locus standi at the time his claim was filed and/or his claim not having disclosed any cause of action.<br /> iv.    The issue or question of the justiciability of the action or claim.</p> <p>I have read the ruling of the Court below at pages 399 -430 of the printed record and I can say without equivocation that issues or the subject matter covered by the Notice of appeal are the same or similar subject areas or matters over which the court below has also addressed the ruling delivered by it on the 17th September, 2015 which is at pages 399 – 430 of the printed record, for instance the court at pages 421 – 429 of the printed record raised and addressed 3 (three) fundamental questions as they relates to (a) Plaintiff’s/appellant’s Cause of Action, I.e- whether the Suit filed by him disclosed any cause of action as to confer on the court the jurisdiction to entertain the claim (b) the issue of the locus standi of the plaintiff, to initiate the suit and (c) the Justiciability of the Suit instituted by the plaintiff /appellant.</p> <p>To contend as the respondent did in their argument in support of the Preliminary Objection that this appeal does not relate to the ruling at pages 397 – 429 of the record is to my mind a misconception of the issues raised in the Notice of appeal and for this I should overrule the preliminary Objection and dismiss same. </p> <p>But granted that the appeal relate to one (1) decision (ruling) only and not the other (ruling) as claimed, how then does it affect the validity of the Notice to which this appeal relate? That is the question: The ruling over which there is no appeal remain as a subsisting and valid decision and therefore binding on the parties to it even if the current appeal succeeds. I therefore find no merit in this Preliminary Objection which is hereby dismissed.</p> <p>I will now consider this appeal on the merits. Before now reference was made to the briefs of argument filed on behalf of parties on both sides including the reply brief filed on the 9th March, 2016. In the brief by the appellant 4 (four) issues were distilled at page 4 as follows:-</p> <p>1.    Whether in the circumstances of the Suit of the Appellant any of the provisions of the rules of the Lower Court or Sheriffs and Civil process Act regarding the issuance and service of originating process was violated?<br /> 2.    Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?<br /> 3.    Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)<br /> 4.    Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?</p> <p>By the brief of argument filed on9th February, 2016 the 1st and 2nd respondents adopted all the 4 (four) issues formulated by the appellant. It follows therefore that this appeal will be decided on the 4 (four) issues formulated by the appellant in his brief of argument and this is what I now proceed to consider arguments proffered on those issues:</p> <p>ISSUE 1</p> <p>Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated? (distilled from grounds 1 and 2 of the Notice of appeal)</p> <p>In addressing this question in his brief of argument at pages 7-10, learned counsel for the appellant drew the attention of the court to the fact that the process by which the Suit was argued was filed or was issued at the Federal High Court in Abuja and to be served on all defendants/respondents in Abuja whose address of service were also endorsed on the writ. That service had not been effected ass the  Judge, Presiding at the Abuja Division of Federal High Court, A. R. Mohamed caused the Summons to be transferred to Taraba Division of the Federal High Court on the 23rd February, 2015, where service was now effected on the defendants/respondents, that upon the process now being served the 1st and 2nd respondents entered appearances and filed a motion on Notice No. FHC/TAR/M/28/15 dated the 30th April, 2015wherein the objection was raised alleging that the appellant did not seek and obtain leave of the Federal High Court sitting in Jalingo to action and serve the process in Abuja.</p> <p>Before us it is argued that leave to issue an originating process was not necessary in the circumstances of this case. That leave is only necessary where service is to be effected outside the territorial limit of the court. It is argued that the fact of the transfer of the Suit to Taraba Division of the Federal High Court did not invalidate its issuance by the Abuja judicial Division of the Court which still remain as one and the same court. He cited and relied on Egbe v. Areka (1988) 7 SC (Pt. 3) 98, 11.</p> <p>Learned appellant’s counsel further argue that assuming that the issuance of the Writ became invalidated by reason of the transfer of the Suit, then there would be no need to seek leave of the “recipient Division” to serve the Writ within the “Dispatch Division.” in reference to section 19 (1) of the Federal High Court Act, Cap F. 12 CFN 2004.He submits further that the Federal High Court was established to exercise jurisdiction throughout the Federation, consequently leave of the Court below was not necessary to initiate and issue and serve a Writ within the Federal Republic of Nigeria and the Court below was in error to hold otherwise.<br /> Learned counsel further submits that it amounts to misdirection in law for the Court below to invoke a general rule or law or practice to displace a distinct or particular authority vested by a statute, in obvious reference to Section 96 (1) (2) of the Sherriff and Civil Process Act Cap. S. B. Law of the Federation of Nigeria, 2004 vis avis Section 19(1) of the Federal High Court Act Cap. F12 LFN, 2014. He cited and relied on: Ezeadukwu V. Maduka(1977) 8 NWLR (Pt. 518) 835, 647.</p> <p>By further reference to order 6 of the Federal High Court (Civil Procedure) rules 2009, he argued that there is no provision in the rules which make the grant of leave as a condition before issuance of a Writ by one Division of the Court before service in another Judicial Division. </p> <p>In a further submission by him it is contended that the court below in the course of its ruling raised an issue of plaintiff’s non-compliance with the provisions of Section 97 and 98 of the Sheriffs and civil Process Act. He argued that it was wrong of the Court to do so on its own and proceed thereat, and without giving either of the parties a hearing on the point to invalidate the summons and thus striking out the Suit. It is argued that neither the Plaintiff/Appellant nor defendant/respondent raised issue as regards Section 98 and 98 of the Sheriffs and Civil Process Act. He argued that by the Court suo motu invoking those provisions, it was making a case different from the one the parties had placed before it hence the need arose to allow the parties to address on it in line with the principle of fair hearing. He cited and relied on the following cases: Concord Press (Nig) Ltd V. Olutok (1999) 9 NWLR (Pt. 6220) 578, 590; Dalek V. Ompadec (2007) 2 SCNJ 208, 242; Ezeonwu V. ONYECHI (1996) 2 SCNJ 250, 269.</p> <p>Learned counsel submits further that so far as leave was not required to serve the Originating process, it follows that of Sections 97 and 98 of the Sheriffs and Civil Process Act was not applicable to this case. That it was fatal for the court below to rely and act on same in itsdecision or ruling. He argued that the court ought to have confined itself to issues brought before it, and he relied on: Akinfotarn V. Akinnola (1994) 4 SCNJ (Pt. 1) 30, 50; Onyamaeh v. Ogbuchulum (1996) 4 SCNJ 237, 244; Ckukwuma V. Federal Republic of Nigeria (2011) 5 SCNJ 40, 71; Kim vs. the State 91992) 4 SCJ81, 92, learned appellant’s counsel urged on the court to resolve Issue 1 in their favour. </p> <p>For counsel to the respondent arguing par contra relative to issue No. 1, it is contended that the said issue No. 1 was restrictive in scope and thus could not have been derived from ground 2 of the grounds of appeal. Learned counsel urged on the court therefore to hold that Issue 1 relate to ground 1 only and that ground 2 be deemed as abandoned and that same be struck out. He relied on Victor V. State (2014) Alims (Nig.) LtdV.UBA 2013 All FWLR (Pt. 692) 1756, 1763; Eco Bank (Nig.) Plc. V. Gusan (2013) All FWLR (Pt. 699) to urge on the Court discountenance any argument relating to that ground citing Shuadu V. the State (2014) All FWLR (Pt. 750) 1381, 1391 and NBC Vs. Ubani (2014) All FWLR (Pt. 718) 803, 835.</p> <p>In response to the issue of whether leave of the court below was required for issuance and for service of the Originating Summons, counsel has argued stating that the Sheriff and Civil Process Act, cap S. 6 Laws of the Federal of Nigeria was a relevant pieces of legislation in respect of Originating processes issued and for service outside the state, that the Act applies to Federal High Court and he relied on the case of Owner of the MV Arabella vs.  N.A.I.C(2008) All FWLR (Pt. 443) 1208, 1226-1230.His submission, in a nutshell, is that in absence of leave first being sought and obtained to serve the Summons or Writ outside jurisdiction, any service effected with the Writ was improper to render the suit incompetent hence court below was right in striking out the originating summons. Learned respondent’s counsel contended that a similar argument or submission was made at the Court below but the appellant was mute about it to suggest that he admitted it and thus urged on the court to so hold. He relied on Onmeje V. Odumu (2011) FWLR (Pt. 600) 1328, 1352UgboajaV. Akintoye Sawemino (2008) All FWLR (Pt. 4390 407, 418.</p> <p>In the reply brief filed for the appellant he argued that issue No. 1 was not only derived from ground 1 but from ground 2 as well of the grounds of appeal following the ruling of the Court below. He argued that the 2 (two) grounds arose from the ruling in relation to the provisions of Sheriffs and Civil Process Act, and that it was proper to raise a single issue from the two grounds. He cited and relied on Yusuf V. Akindipe (2000) 5 SCNJ 128, 134.<br /> The Appellant, he argued, has that the appellant  has not violated any of the provision of the said Act as alleged . i. e. Section 96, 97 and 98 of the Sheriffs and Civil Process Act which he says are not applicable to this case in that the Originating process was filed and or issued at Abuja and same to be served in Abuja. </p> <p>OPINION</p> <p>Issue of service is a fundamental requirement in the adjudicative process. So important is it that the absence of same would lead to an entire proceedings or a suit being voided as a nullity. This is so because by dint of service of a court process the party on the other side is put on Notice of the nature and character of the suit that wait him, and thus calling on him to get set and be prepared for the impending case or Suit. Issue of service is thus a condition precedent to the hearing of any given case to which that service or Notice relates. It is the service of the relevant process that confer on the court the jurisdiction to hear the matter in relation to that person. See: Alhaji Dan Rausa&amp; Co. V. Panatrade Ltd (1993) NWLR (Pt. 298) 204 or (1993) 7 SCNJ 100; Kida V. Ogunmol (2006) 13 NWLR (Pt. 997) 377; Africa C. B. Pl. Vs. Lasada Nig. Ltd 919950 7 NWLR (Pt. 405) 25; Uchandu vs. Ogboni (1999) 5 NWLR (Pt. 6033) 337 or (1999) 4 SC (Pt. 11) 1; Eimskip Ltd V. Exquisite Industries (Nig.) Ltd. 92003) 4 NWlR (pt. 809) 88 (005) 1 SC (Pt. ii) 94; Aken Consult V. Ukey (1981) 1 Sc 6, 226; Okoye &amp; Anor. V. Centre Point Merchant Bank (2008) 15 NWLR (Pt. 1110) 335 SC. Tsokwa Motors (Nig.) Ltd Vs. UBA Plc. (2008) 2 NWLR (pt. 1671) 347. The duty on the Plaintiff or claimant seeking to initiate a Suit becomes even more compelling when the law require of him to first seek and obtain leave of court preparatory to the Originating Summons being issued and served and this, I think is the live issue in this case on appeal. The court below delivering its ruling on the application filed by the respondents raising objections on the competence of the Suit before it took the view that since leavewas not sought and obtained and the provisions of Section 96, 97 and 98 of the sheriffs and Civil Process Act not having been observed, then the Suit initiated by the appellant was incompetent.</p> <p>Before I go any further you will permit me my lords to pause here for a while and pass a few remarks by way of observation on the submission made by counsel to the respondent that issue No 1. Was not derived from ground 2 of the Notice of appeal as alleged and to that extent the said ground 2 has been abandoned and same should be struck out.</p> <p>In his brief of argument the appellant at page 7contends that Issue No. 1 was formulated from 2 (two) grounds in the Notice and Grounds of appeal, that is to say from grounds 1 and 2. The said Issue No. 1 is presently being considered but there is the need to look at grounds 1 and 2 of the grounds of appeal again. Ground 1 (one) along with the particulars state thus:-</p> <p>“GROUND ONE:<br /> The Honourable trial Court misdirected itself when without adverting his mind to the facts that the originating process was instituted at and duly issued by the Abuja Judicial Division of the Court and consequently transferred to the Taraba Judicial division proceeded to hold.</p> <p>“I have perused the record of this Court and I find no where the plaintiff initiated any application or leave to issue processes in this case… the noncompliance is a fundamental vice and goes to the root of the action. The originating Summons ant other processes field with it are invalid, defective and ought to be set aside as this court has no jurisdiction to entertain it”</p> <p>PARTICULARS OF THE ERROR</p> <p>1.    The originating summons was filed in and issued by the Abuja Judicial division of the Court<br /> 2.    At the time the originating process were issued the addresses for service indorsed therein are within the Federal capital Territory, Abuja.<br /> 3.    Section 19 (1) of the Federal high Court Act (Supra0 vests jurisdiction throughout the Federation on the Court. <br /> 4.    Section 96 (1) &amp; (2) of the Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004, did not prescribed or provide for the need to seek or obtain the leave of the court to serve the originating process within any part of the Federation.<br /> 5.    By the Rules of the Honourable trial court, leave is only necessary where the service of the originating process is to be effected outside the territorial limit of the Federation.”</p> <p>GROUND 2 (TWO) STATE THUS:<br /> The honourable trial court misdirected itself in its decision thereby occasioning grave miscarriage of justice, when it suomotu and without inviting the parties to address it, raised the issue of noncompliance with the provisions of Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) and resolved same thus:</p> <p>“Both Section 97 and 98 of the Sheriffs and Civil Process Act are requirement of the Statute which prescribes conditions for issuance of the Writ. Failure to comply with the provisions make writ invalid and void. The action based on them is therefore incompetent and liable to be struck out” </p> <p>PARTICULARS OF THE ERROR</p> <p>1.    None of the Respondents complained about the fact that the originating process were not endorsed as stipulated in Section 97 and 98 of the sheriffs and Civil Process Act (Supra).<br /> 2.    It is an elementary and fundamental principle of the determination of dispute between the parties that the Judgment must be confined at the Court setting up a new case for the parties.<br /> 3.    The court must afford parties the opportunity of being heard on new issues raised suo motu.<br /> 4.    It is not proper for a court to embark upon a fact finding investigation that leads to the discovery of facts.<br /> 5.    Section 97 and 98 of the Sheriffs and Civil Process Act (Supra) do not apply to the case before the trial Court.<br /> 6.    The Appellant was denied the right to be heard on the point raised by the trial Court.”</p> <p>A comparative reading of ground 2 of the grounds of appeal and Issue No. 1 will reveal that the latter i.e issue No. 1, contrary to the view held by respondent’s counsel, is indeed related to the complaint in ground 2 of the grounds of appeal by which, the question of the relevance and applicability of Sections 97 and 98 of the Sheriffs and Civil Process Act was the main focus of complaint. Issue 1 which state:“Whether, in the circumstance of the Appellant, any of the provisions of the Rules of the lower court or Sheriffs and Civil Process Act, regarding the issuance and service of Originating Process was violated”, embraces the two grounds of appeal under reference and to that extent, ground 2 of the grounds of appeal cannot be said has been or was abandoned as argued by the respondents or their counsel.</p> <p>Issue No. 1 has been couched in such a manner or language that transcends and cut across the provisions of the Act and the rules relevant to the issue on hand.</p> <p>The sheriffs and Civil Process Act cap S.6 laws of the Federation of Nigeria 2004 at Sections 96, 97 and 98 are provision with regards to;</p> <p>i.    Service of the Writ in any part of the Federation <br /> ii.    Endorsement of Writ meant for service outside a state <br /> iii.    Writs which should be endorsed and marked as concurrent.</p> <p> I will endeavor to reproduce those Sections in full thus:-</p> <p>“Section 96 (1) A writ of summons issued out of requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory<br /> (2) such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued”</p> <p>“Section 97.Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by law of such State or the capital territory, have endorsed thereon a notice…”</p> <p>“Section98. A Writ of Summons for service out of the state or the capital Territory in which I was issued may be issued as a concurrent Writ with one for service within such State or the capital territory and shall in that case be marked as concurrent.”</p> <p>As indicated before, Section 97 and 98 are provisions requiring the endorsement of the originating process. Thus the Writ of summons or any other originating Process being issued and directed for service in a state other than the state issuing it shall have on the writ, the appropriate endorsements as prescribed at Sections, 97 and 98 respectively. From the wordings of the two provisions, compliance is mandatory and non-compliance will lead to the writ or service of it as voidable. See: Odu’a Investment Ltd Vs. Talabi (1997)10 NWLR (Pt. 523) 1 (SC). Same goes for the Writ or other Originating Process for which leave of court or Judge was required before issuance and service outside jurisdiction. Failure to obtain leave to serve on a defendant outside jurisdiction of court renders the issuance of the Writ and service as irregular and can be set aside by defendant provided that he took no steps before approaching the court to set aside the writ. See: Odu’a Investment Ltd V. Talabi (supra); Korum Ltd Vs. Intra. Trust.(2010) LPELR – 4408 (CA).</p> <p>The big question here is whether the appellant has not jumped the gun when he failed to seek leave of Court at the point of issuance and service of the originating summons?</p> <p>Learned counsel for the appellant in his brief has argued that by the peculiar facts of this case, it was not necessary to seek leave to issue and serve the originating process given the facts that:</p> <p>i.    The territorial jurisdiction of the Federal High Court extend to cover the entire Nigerian State.<br /> ii.    The appellant initiated proceedings at the Federal High Court, Abuja against defendants/respondents who see addresses for service was endorsed on the writ, for service in Abuja, Federal Capital Territory.</p> <p>The Federal High Court was established by virtue of the Constitutional provision at Section 249 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Federal High Court Act Cap, F 12, LFN, 2004 at Section 1. Whereas the Constitution of the Federal republic of Nigeria defines the modus operandi in termsof jurisdiction over the subject matter the court can function which is Section 251, it is the Federal High Court Act that delimits the territorial scope or extent over which the court can operate. By Section 19 (1) of the Act the Federal High Court was conferred with and has jurisdiction to operate and carry out its functions throughout the Federation. Thus the whole of the territory of Nigeria State constitute one (1) Constituency, so to say, over which the Federal High court can function and the Act having thus delineated the operational areas for the Federal High Court is it within the legislative intent for the litigant to first seek leave of that Court to enable him, serve a Writ or any other Originating Process at a place in Federation other than the place the writ was issued? That is the question.</p> <p>The Federal High Court (Civil Procedure) rules, 2009 make provisions under order 6 on how service of court process can be effected. It is in 2 (two) parts. It can be observed that part ‘A” which deals with service within jurisdiction has no provision or requirement for application for leave to be made before personal service is effected. See order 6 rule 2. Contrariwise is part “B” of Order 6 on service out of Jurisdiction. See: Order 6 rules 13, 17, 18 and 31. It follows therefore that leave to issue and serve a Writ is not required where the writ is to be served within jurisdiction.</p> <p>The term or words “outside jurisdiction” when used and applied in relation to service of court process relates in my view to the geographical area not within the territory under the control or supervision of the court and for which it is necessary to seek leave of court to effect service outside the jurisdiction of that court. By the combined reading of Section 19 (1) of the Federal High Court Act and Order 6 of the Federal High Court (Civil Procedure) Rules, 2009, leave of the Federal High Court is not required in my view to effect service of an Originating Process within the territory of the Nigerian State, and section 96 of the Sheriff’s and Civil process Act does not so state.<br /> I am mindful of the decision in Owners of MV. Arabella (Supra) cited and relied on by learned counsel to the respondent where the apex court considered and construed the provision of Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules, 1976  to reach conclusion that leave of court was necessary to serve a writ in Abuja, having been issued in Lagos. In the 1976 rules, the area that constitutes “outside jurisdiction” was neither defined nor fixed.By the existing rules of the Court i.e Federal High Court Civil Procedure Rules 2009, at Part B of Order 6, leave to Issue and serve a writ is necessary where service is to be effected outside the territory of the Nigerian State but that is not the issue in this case on appeal. The issue rather is whether leave of the Federal High Court is required as a condition for service of a writ issued in one location and directed to be served in another location within Nigeria. No such provision is made under part A of Order 6 of the Federal High Court (Civil Procedure) rules 2009 in the light of Section 19 (1) of the Federal High Court Act, 2004. Therefore on the issue of service of the Writ issued at the Federal High Court I am of the opinion that leave of the Court is not a precondition for service within Nigeria. </p> <p>On the issue of the Endorsement of a Writ issued at the Federal High Court, I think this is a different kettle of fish. Section 97 and 98 of the Sheriffs and Civil Process Act have earlier been referred to but the provision which I think is directly on point is Section 97 of the Act. I am inclined to reproduce same along with the Notice expected to be endorsed on the Writ thus:</p> <p>“Every Writ of Summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or Notice required by the law of such state or the Capitals territory, have endorsed thereon a Notice to the following effect (that is to say)-</p> <p>“This Summons (or as the case may be) is served out of the …… State (or as the case may be)……and in the………….State (or as the case may be)”</p> <p>The requirement for endorsement of the Writ in the State other that the State it was issued is mandatory and the legislature was very careful in the use of language such that no one is left in doubt and indeed the plaintiff or claimant. He is not expected to seek leave of court to effect the endorsement on the writ with the NOTICE referred to above as if it were seeking leave  to serve the writ out of the jurisdiction of the Court. All the same the need for endorsement is profound where the writ is to be served in a state other than where it was issued. The effect of the failure of compliance with the requirement of endorsement is fatal to the validity of that Writ. See:-Owners of “MV Arabella” vs. N.A.I.C. (supra) The argument advanced by counsel to the appellant that since he filed his Suit in Abuja where defendants (respondents) also reside, there was no further obligation on the appellant in terms of having to endorse the Writ. In other words he argued that Section 97 of the Sheriffs and Civil Process Act was not applicable to his case. Be it noted that the provision of Sheriffs and Civil Process Act apply to all courts throughout Nigeria and this is discernible from the introductory note which herald that legislation. See: Owners of the “MV Arabella” V. N.A.I.C. (2008) All FWLR (Pt. 443) 1208. The appellant as plaintiff filed his Originating Summons at the Federal High Court, Abuja Judicial Division on the 31stDecember, 2014 wherein he sought a number of reliefs against the defendants now respondent but the court holden in Abuja on the 23rdFebruary, 2015 in its wisdom by an order issued the same date transferred the Suit to Taraba State Division of the same Court for adjudication. See: page 388 of record. </p> <p>There is no question about the power vested in the court below to effect such transfer of cases as it did. Rather the Act establishing the court and the Rules of court vest in the court the power to make such transfers. Section 22 of the Federal High Court Act, 2004 is authoritative. </p> <p>The case having thus been so transferred to Taraba Division of the Federal High Court, it will assume jurisdiction as if the matter was originally filed at that court since hearing must commence de novo but I do not think that this act of transfer confer additional obligation on the appellant or his counsel whose writ or summons was filed and issued in Abuja, Federal High Court Division and addressed to defendants at Abuja. In such a situation, the appellant has no obligation to endorse his writ meant to be served within the same Federal Capital Territory. i.e Abuja. Therefore the appellant cannot be punished for an act over which he has no control. To strike out the originating Summons for want of endorsement seem to overlook the facts of the case. In effect I am in agreement with counsel for the appellant that the writ that is the originating Summons filed and issued in Abuja, in the circumstances require no further endorsement of the writ for service in Abuja. Same should not be reason to strike out or dismiss the suit, the same having duly been issued at Federal High Court Abuja for service in Abuja, Federal Capital Territory. See: Madukolu V. Nkemdelim (1962) 1 SCNLR 342; or (1962) All NLR 587; Attorney General of Federation Vs. Gurdian Newspaper (1999) 9 NWLR (Pt. 618) 187 or (1999) 5 SC (Pt. 111) 99 where held that:</p> <p>“The competence of a court in the exercise of its jurisdiction is determined if it is (a) properly constituted with respect to the number and qualification of its membership (b) the subject-matter of the action is within its jurisdiction (c) the action is initiated by due process of the law an (d) any condition to the exercise of its jurisdiction has been fulfilled.”<br /> It is apparent that the Summons was not endorsed as prescribed under Section 97 of the Sheriffs and Civil Process Act, but this failure to have the writ endorsed does not invalidate the summons  meant for service within Abuja Federal Capital Territory where it was issued. Consequently Issue1is resolved in favour of the appellant. </p> <p>ISSUE No. 2</p> <p>The resolution of issue No. 1 on the question of failure of compliance by the appellant with mandatory provisions of the Act, should dispose of this appeal in its entirety without having to consider other related issues namely issues 2, 3 and 4 but for the fact that this court, being an intermediate appellate court, there is the need to consider and rule on those issues albeit briefly: See: Osunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522; Federal Ministry of Health V. Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Okonjode &amp;Ors. v. Njokanmo de &amp; 2 Ors. (1999) 12 SCNJ. 259; Ifeanvichuku (Osandu) Co Ltd v. Soleh Boneh (NIg) Ltd (200) 5 NWLR (Pt.. 656) 332; (200) 3 SCNJ, 18 </p> <p>Issue No. 2 addresses the question: Whether in the determination of locus standi or cause of action it is permissible to consider evidence that is extrinsic or extraneous to the originating process?</p> <p>Issue No. 3Whether in the circumstances of the default of defence/response to the Originating process filed by the Appellant he is entitled to the Judgment of the lower court in terms of the indorsed relieves? (sic)<br /> Issue No. 4 is Whether in the determination of the application of the 1st and 2nd respondents, the lower court glossed over the fundamental issues, decisive evidence and crucial legal submission?</p> <p>I will now give the summary of submissions made by counsel on those issues thus:</p> <p>Learned counsel for the appellant in arguing issue 2 at pages 11-15 of his brief of argument recalled the facts giving rise to this case on appeal and went ahead to submit that the court below was in error to hold that the appellant lacks locus standi to institute the Suit and his case did not disclose any cause of action.</p> <p>First, on the issue of locus standi he argued that the court below applied the principle of public law in the determination of the question of locus standi here private law applies. It s his contention that in private law, the question of locus standi is merged with the issue of cause of action and he relied on Owodunni V. Registered Trustees (200) 6 SCNJ 399, 417 lines 26 – 27.</p> <p>Second, as to what a cause of action is and how it is determined he referred us to Akiba v. Oduntaan (2000) 7 SC NJ 189, 207; Dantata Vs. Mohammed 9200) 5 SCNJ 17. 26;Yususf v. Akindipe (2000) 5 SCNJ 128, 137; Abubaka V. Babaji Oil (2007) 2 SCNJ 170, 194 – 195.</p> <p>He argued that to determine the cause of action the materials to look out for are the writ of summons and the averments in the Statement of claim to ascertain the actual grouse of the party and the remedy or relief he is seeking. In reference to Yusuf V. Akindipe (Supra) he argued that in the definition of a reasonable cause of action extrinsic evidence or material in form of affidavit evidence is not permissible but the claims of the claimant or plaintiff only to ascertain the jurisdiction of the court. He argued finally on this point that the court below was wrong to have ignored the claims and the reliefs sought by the appellant. He urged on the court to resolve issue 2 in favour of the appellant.</p> <p>In response to Issue No. 2, learned counsel for the respondent took his time to restate the meaning and definition of the terms; locus standi and cause of action and to submit that it is the wrongful act on the part of the defendant which gives the plaintiff the cause of complaint. On this he relied on Attorney General of Bayelsa V. Attorney general of rivers (2006) 12 SCM (Pt. 2) 1 38, 39; Abubakar V. Babaji Oil (2007) 3 SCM 37, 63. He argued that until there is an existent legal right and in frigent of same, a cause of action cannot arise, in reference to Osigwe V. PSPLS management Consortium Ltd. (2009) All FWLR (Pt. 470) 622; Shell Petroleum Development 7 Anor. vs. V.X.M. (2006) 14 SCM (Pt. 2) at 348-385.As to locus standi he argued that a person has standing where the reliefs sought would confer on him some benefits; that the person must show he has some cognizable right to protect in initiating the suit. He relied on Owudunni V. Regd. Trustees (2000) FWLR (Pt. 9) 1455, 1480;FalomoV. Kichina (2005) All FWLR (Pt. 284) 397, 406.By and large, it is argued that the case of the appellant has not disclosed any cause of action and himself as the appellant lacks locus standi. He urged the court to resolve this issue in favour of the respondent.</p> <p>In relation to Issue 3 counsel for the appellant cited Order 13 Rule 35 (5) of the Federal High Court Rules to submit that whether for the Respondents to file their counter-affidavit in opposition to the originating summons they chose to raise an objection. It is argued that by the failure to contest the Originating </p> <p>Summons, they had admitted the facts contained in the affidavit in support of the Originating summons and the court below ought to have entered Judgment for the appellant. He relied on Bakare V. Ajose Adeoj on (2014) 15 CNJ (Pt. 1) 2o2, 232-233; Onatohokan V. Wema Bank (2011) 5 SCNJ 266, 282 to further submit that where a defendant chose to file an objection the locus standi of the plaintiff without filing a defence alleges that the plaintiff has not disclosed reasonable cause of action, he is deemed to have admitted the facts in the Originating Process or Statement of claim. In that case it is for the court to enter Judgment over the originating Process in favour of plaintiff. He argued that the court below abdicated its responsibility and therefore call on this court in exercise of the powers under Section 15 of court of appeal Act to evaluate evidence of the material before the court and enter Judgment for the appellant accordingly.</p> <p>In response to this issue counsel for the respondent argue that the call on this court to enter Judgment for the appellant based on the originating Summons was premature so far has hearing over the same was yet to be taken citing Hashidu V. Goje (2004) All FWLR (Pt. 228) 662-695</p> <p>Counsel for the appellant arguing issue No. 4 has submitted that the court below ought to have entered Judgment for the appellant on the Originating Summons so far as there was no counter-affidavit to controvert facts deposed therein the implication of which is that the averments thereto were admitted, rather the court below glossed over issues including the issue of evaluating the affidavit evidence attached to the Originating Summons and documentary Exhibits annexed to the affidavit, among other issues.</p> <p>In response to those submission on Issue No. 4 it was argued that the objection raised by the respondents was akin to a challenge on the jurisdiction of court to entertain the case and as such issue relating to jurisdiction of court can be raised any time without having to file a defence or a counter-affidavit. He relied on several cases including Elebanyo V. Dawodu (2006) All FWLR (Pt. 328) 604; Ebge V. Alhaji (1990) 1 NWLR (Pt. 128) 546; Onibudo V. Akibu (1982) All FWLR 207; Odire V. Obor (1974) N SCC 103, 107.</p> <p>OPINION<br /> The terms “locus standi” and “cause of action” have become familiar legal jargons in our jurisprudence owing to their application and usage and our law books are now replete with decisions of courts on these area of our law.</p> <p>Simply put locus standi denotes the legal capacity to institute proceedings in a court of law.it is used interchangeably with terms like ‘standi” or “title to sue” thus in private law the plaintiff is said to have standing in a matter only if he has a special legal right or alternately if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest is adversely affected. What constitute a legal right, sufficient or special interest or interest adversely affected depends on the facts of each case. See: Senator Adesanya V. President, Federal Republic of Nigeria (1981) 5 SC 69 or (1981) All NLR 1. See further definition in Akinfolarin V. Akinnola (1994) 4 SCNJ (pt. 1) 30, 61; Omodunni  Vs. Regd. Trustees (2000) 6 SCNJ 399, 417. It follows therefore that when the locus standi of plaintiff is challenged it is the originating process that the court need to look at to discover the standing of the plaintiff and not any other document. The statement of claim or any other originating process is the cynosure of the exercise. See. Disu V. Ajilomuna (2007) 7 SC (Pt. 11) 1; Osun State Government V Sestisione H. Nigerian Ltd (2012) LPELR - &amp;936 (CA).A cause of action on the other hand, is defined to mean the facts which when proved will entitle a plaintiff to a remedy against a defendant. It is the state of facts which gives a person the right to judicial reliefs see; Ojukwu v. Yar’adua (2009) All FWLR (Pt. 482) 1065, 1119-120 Abubakar V. BabajiOil92007) All FWLR (Pt. 362) 1855, 1887-1888; NPA Plc. Vs. Lotus Plastic ltd. (2006) All FWLR (Pt. 297) 1023. 1038. Like the Issue of locus standi, cause of action can be ascertained by reference to the Statement of claim or any other process originating the action. See: Attorney General Kwara State Vs. National Judicial Council (2010) LPELR – 5009 CA).</p> <p>ON reason which necessitate the objection being taken at the court below is an account of standing. It is alleged that the plaintiff (appellant has no locus standing to institute the action. It is also alleged that the suit does not disclose reasonable cause of action among others. These facts were deposed to in the affidavit in support of the objection taken at the trial court. It is clear in the ruling delivered by it at pages 431-457 particularly pages 455-457 heavily relied on what it described as uncontroverted affidavit evidence of the respondents to uphold the objection and thus the suit was struck out.</p> <p>In the determination of the question whether or not plaintiff’s case disclose a cause of action or the plaintiff has locus standing, the approach which the courts of the land have approved is to look at the Statement of claim or any other Originating Process so as to ascertain those claims. It is thus a wrong approach when the court below resorted to and relied on the affidavit evidence in support of the Motion on Notice raising objection to strike out the Suit for want of standing to discover whether the suit disclosed any reasonable cause of action or whether the plaintiff has locus standi.</p> <p>The appellant, by the originating Summons filed by him said he partook or participated in the exercise leading to the Primary Elections conducted by the 2ndrespondent on the 11th December, 2014 for the purpose of nominating a candidate to represent Taraba South Senatorial District at the Senate. He said he is a card carrying member of the Peoples Democratic Party and an aspirant in the said Primary Election. He annexed Exhibits A, B and C to the Originating Summons as documents evidencing his membership of the party, evidence for payment of nomination and expression of Interest Form to contest the primaries (Exhibits B and C). So what greater evidence is there to show as would accord the Appellant the locus standi in this case on appeal? He is an aspirant.</p> <p>Section 87 (9) of the Electoral Act, 2010 provides thus:</p> <p>“87 (9) Notwithstanding the provisions of this act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress””</p> <p>It is my view that the appellant has brought himself within the provisions of the Electoral Act as referred to above to confer on him the necessary locus standi. See: Emenike Vs. PDP (2012) LPELR-7802 (SC) or (2012) All FWLR (Pt. 1640) 1261.In ArdoV. Nyako (2014) All FWL (Pt. 744) 130, 160 the apex court held:</p> <p>“Under the said section 87 (9), an aspirant who can invoke the jurisdiction of the court and as has been held in a long line of cases from this Court, is the one who complains that any of the provisions of the Electoral Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election”</p> <p>See further decision in Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 860) 1206 1225-1227; Adebayo V. PDP (2013) All FWLR (Pt. 695) 204, 230.</p> <p>The question earmarked for determination in the Originating Summons is to this effect:</p> <p>“1. Whether the 2nd defendant for the purpose of selecting its candidates for Senate Primary Election for Taraba South Senatorial District in Taraba State for the 2015 general Elections can adopt a procedure other than that provided in 2nd defendant’s Electoral Guideline for Primary Elections 2014, the 2nd defendant’s Constitution 2012 (as amended) and the Electoral Act, 2010 (as amended).”</p> <p>By virtue of the appellant being an aspirant in the Primary Elections and the complaints laid by him relative to that election, the (appellant) has the required locus standi, to institute the action as he did. Consequently, the court below was in error when he struck out the Suit on this account. </p> <p>Issues 3 and 4 are interwoven. Issue No. 3 in particular seek to invoke the powers of this court under Section 15 of the Court of Appeal Act so that issues presented in the Originating summons are thrashed out on the merit at this level based on the materials available and are before this Court. This call I think is premature and this court cannot at this stage consider that request. The question before this court on appeal arose from interlocutory ruling at the court below. The merits of that case have not been considered by that court. To urge on this court to hear the case on the merit is to usurp the functions of the trial court and we reject this call.</p> <p>On the whole therefore this appeal succeeds in part and same is allowed. The ruling delivered at the court below on 17th September, 2015 in Suit No. FHC/TAR/SC/5/2015, Motion No. FHC/TAR/M/24/2015 is hereby set aside. Consequently, this case is remitted to the Chief Judge of the Federal High Court who shall assign it to a Judge other than Justice D. U. Okorowo for hearing on the merit.<br /> Ordered accordingly.</p> <p>JUMMAI HANNATU SANKEY, J.C.A.<br /> I agree.</p> <p>BIOBELE ABRAHAM GEORGEWILL, JCA:</p> <p>This appeal revolves in the main around the issues whether an originating summons filed in one State of the Federal Republic of Nigeria or the Federal Capital territory High Court and for service within the same state or the Federal Capital Territory requires leave to be issued and must also be endorsed for service out of the said state to be valid; whether a person who participated in the primary election of a Political Party for the nomination of its candidate for general election is a person with or without the requisite locus standi to institute an action in a court of law to challenge the outcome of the said primary election by virtue of the provisions of Section 87 (9) of the Electoral Act 2010 as amended?</p> <p>In the lead judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA, with which I am in complete agreement with the lucid reasons and impeccable conclusions reached therein, these crucial issues have been admirably resolved in favor of the Appellant as against the Respondents.  I shall by way of contribution to the very lucid lead judgment just say a word or two on some if these crucial issues.</p> <p>In law, it has long been well accepted that to determine the locus standi of a Plaintiff, it is only the averments in the statement of claim or depositions in the affidavit in support of originating summons and not the averments in the statement of defence or depositions in the affidavit in supporting of notice if preliminary objection or counter affidavit to the originating summons that is to be carefully scrutinized to see whether or not the plaintiff indeed has the locus standi to institute the claim against the defendant.  See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1; Owodunmi V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455; Attorney General of Kwara State V. NJC (2010) LPELR 5009 (CA).<br /> My lords, regrettably, the Court below considered both the affidavit in support f the originating summons albeit very perfunctorily and the affidavit in support of preliminary objection in-depth and believed the depositions in the affidavit in support of the preliminary objection as deemed admitted in the absence of any counter affidavit of the Appellant and relied solely on the affidavit of Respondents in support of the Preliminary Objection to dismiss the Appellant’s suit.</p> <p>In my humble view, since in law the only document to consider in determining the locus standi of a Plaintiff is the originating process and the statement of claim and not the statement of defence or affidavit in support of preliminary objection, the court below erred gravely in law to proceed n the manner it did and which resulted into the erroneous dismissal of the Appellant’s suit.  See Adesanya V. President, Federal Republic of Nigeria (1981) All NLR 1; Owodunmi V. Regd. Trustees of Celestial Church of Christ (2000) FWLR (Pt. 9) 1455.</p> <p>Now, was leave required in the circumstances of this case for the issue of the originating summons by the Appellant against the Respondent on the face of the address for service of the Respondent and the place of the issue of the originating summons?  Heavy and indeed total reliance was placed on the decision of the Apex Court, the Supreme Court in Owners of M. V. Arabella V. NAIC (2008) all FWLR (Pt. 443) 208 by the Respondents in their contention that without leave of Court to issue the originating summons, the Appellant’s suit was incompetent, an argument which the court below by its ruling endorsed.</p> <p>However, a careful perusal of the decision in the Owners of M. V. Arabella V. NAIC (Supra) would readily reveal that it was decided on the provisions of Order 10 rule 14 of the Federal High Court Civil Procedure rules 1976 and Section 97 of the Sheriffs and Civil Process Act 2004 and not on any of the provisions of the extent rules of the court below, which by Order 6 Rule 3 of FHC Rules 2009, defined service out of jurisdiction to mean service outside the Federation of Nigeria.</p> <p>My lords, in the instant case in the originating summons was filed in Abuja with all the addresses for service also at Abuja.  The suit was suo motu subsequently transferred to the Taraba Judicial Division of the court below by the court.  See page 338 of the Record.  In the ruling appealed against, the court below held that the leave of court was required to issue and serve the originating summons on the Respondents at Abuja outside the jurisdiction of the Jalingo Judicial Division of the court below.</p> <p>Now, was the court below right in this decision?  I do not think so!  By the very clear provision of Order 6 Rule 31 of the FHC Rules 2009, on leave of court was required to issue and serve an originating process filed in any Judicial Division of the Federal High Court within the Federation of Nigeria and thus in law the Appellant required no leave of court as erroneously held by the Court below.</p> <p>At any rate, on the undisputed facts on which all the parties are ad idem, the originating summons was issued in Abuja and for service on the parties in Abuja and therefore there was absolutely no need for any leave to issue and serve same on the Respondent as one being served out of jurisdiction as erroneously held by the court below.  In my finding, in the circumstances of the established facts in this case leave to issue the originating summons for service out of jurisdiction was completely unwarranted and unnecessary as no such leave was required.</p> <p>The court below had also held without being called upon by either of the parties that the originating summons of the appellant was also incompetent having not been marked and endorsed as a concurrent writ for service out of jurisdiction pursuant to Section 98 of the Sheriffs and Civil Process Act 2004.  See pages 453 – 454 of the record.</p> <p>My lord, the law has long been well settled, and it no longer admits of any contrary arguments, that while a court has the plentitude of power to raise an issue suo motu but it must never decide on such issue raised suo motu without first calling on the parties to address it on the issue raised suo motu.  Consequently, any issue raised suo motu by a court, as did the court below in the issue of endorsement as concurrent writ pursuant to SECTIO 98 of the Sheriffs and Civil process Act 2004, and in which any decision is reached without first calling upon and hearing the parties on such an issue raised suo motu is one arrived at in utter breach of the right to fair hearing of the parties and thus void and thus renders both the proceedings and judgment of such a court without much ado.  A party affected adversely by such a decision is in law entitled exdebito justitia to have such an invalid order set aside.  See Iriri V. Erhurhobora (1991) 2 NWLR (Pt. 173) 252; Badmus V. Adegunde (1991) 11 NWLR (pt. 627) 493; Balogun (1978) 1 SC 53; Jev &amp; anor V. Iyortyom &amp; Ors (2014) LPELR 23000 (SC).</p> <p>In Eholor V. Osayande (1992) 1 NWLR (Pt. 249) 524, Nnaemeka JSC, had pronounced with finality thus:</p> <p>“In my respected opinion, our system of appeals in our adversary system does not permit courts to dig into the records to fish out issues, no matter how patently obvious, and without hearing the parties use it to decide an issue in controversy between the parties to the appeal.  It runs counter to the impartial status and stance expected of a judge in the system.  It is better that the parties raise and argue it by themselves.  But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.”</p> <p>There is also the very crucial issue of the allegation of non compliance with the provision of Section 87(9) of the Electoral Act 2010 as amended and the PDP guidelines for the conduct of primaries for the election of its candidates for the 2015 General Election as raised by the Appellant in the originating summons against the Respondents and whether such an issue raises a political question only and which is non justifiable in law and thus does not confer any locus on the Appellant?</p> <p>My lords, it is true in law that the question of who is a candidate of a Political party is a clearly a political question and which is non justifiable being at the sole discretion or power of the party concerned as its internal affairs over which no court has the jurisdiction to superintend.  See Onucha V. Okafor (1983) 2 NSCC 494.  See also Taiwo V. Adeboro (2011) all FWLR (Pt. 584) 53; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012.</p> <p>However, be that as it may, it is also equally true in law that a person who participated as a candidate in a primary election of a Political party and alleges a breach of Section 87(9) of the Electoral Act 2010 as amended and non compliance with the guidelines of that Political party for the conduct of the primaries for selection of its candidate for election has the locus standi to sue and such an issue is not a political question and it thus justifiable.  See Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (Pt. 738) 1012 @ 1039; Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. P. D. P. (2013) All FGWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) All FWLR (Pt. 607) 545; APGA V. Anyanwu (2014) All FWLR (Pt. 735) 243; Daniel V. INEC (Supra).</p> <p>It was also vehemently contended for the Respondents that for a person, who had participated in a primary election of a Political Party, to have the locus to sue over the conduct and outcome of such a primary election he must also be on respect of a valid primary and thus once a person alleges that the primary was invalid je shoots himself in the food and renders his claim incompetent.  Reliance was placed on Lado V. CPC (2012) All FWLR (Pt. 607) 545 and Daniel V. INEC (supra).</p> <p>Interestingly, having taken time to thoroughly read through the law reports of these cases, I am unable to agree with the contention of the Respondent’s counsel that they are decisions to the effect as contended by them in urging this court to hold that the Appellant lacks the locus standi being not the person who emerged victorious at the challenged primary election of the 2nd Respondent.</p> <p>On the contrary, the very clear position of the law as resonate in virtually all the decisions of the Supreme court ant his court as touching on the issue of locus standi pursuant to Section 87(9) of the electoral Act 2010 as amended is to the well settled effect that a person once he was a candidate at the primary of Political party and who alleges a breach of the Electoral Act 2010 as amended and guidelines of the affected Political party indeed has the locus standi so sue by virtue of Section 87(9) of the Electoral Act 2010 as amended and a such claim, such as the Appellant’s claim in the instant case, is clearly justifiable in law and thus clothing such a person, such as the Appellant, with the requisite locus standi to sue contrary to the perverse decisions of the court below, which cannot be allowed to stand.  See Alhassan &amp; anor V. Ishaku &amp; Ors. (2016) LPELR 40083 (SC).  See also Ardo V. Nyako (2014) All FWLR (Pt. 244) 130; Anyanwu V. Ogunewe (2014) All FWLR (pt. 738) 1012 @ p. 1039.  Uwazurike V. Nwachukwu (2013) All FWLR (Pt. 680) 1206; Adedayo V. P. D. P. (2013) All FWLR (Pt. 695) 204; Emenike V. PDP (2012) All FWLR (Pt. 640) 1261; Lado V. CPC (2012) all FWLR (Pt. 607) 545; APGA V. Anyanwa (2014) all FWLR (Pt. 735) 243.</p> <p>It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the Appeal is pregnant with merit and perforce succeeds.  Consequently,   I too allow the appeal in part.  However, in the circumstances of this case, I also do not think that this is a proper case for this court to invoke its power under section 15 of the Court of Appeal Act 2004 to hear and determine the appellant’s suit at once as urged upon this court by the appellant’s counsel.  In my view it would be better as it is in the interest of justice that both parties return to the court below and join issues on the claims of the appellants and the matter be heard and determined on the merit.  In the result, the Appellant’s suit is hereby remitted to the Chief Judge of the Federal High Court for expeditious hearing and determination on the merit according to law before another judge other than D. U. Okorowo J.</p> <p>?<strong style="line-height:1.6">COUNSEL</strong></p> </div> </div> <div> <div> <p>1.    AbbassAjiya Esq., for the Appellant<br /> 2.    E. J. Akanmode Esq., (with M. I. Simon, E. A. Ibrahim Effiong and Ahamed Esq.) for the Respondents</p> </div> </div> </div></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 327 at http://nigerialii.org Eromosele v Federal Republic of Nigeria (L 550 of 2013) [2016] NGCA 27 (30 May 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/27 <span class="field field--name-title field--type-string field--label-hidden">Eromosele v Federal Republic of Nigeria (L 550 of 2013) [2016] NGCA 27 (30 May 2016);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong></div> <div>?</div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>EGBELE AUSTIN EROMOSELE</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>FEDERAL REPUBLIC OF NIGERIA</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (Delivered By CHINWE EUGENIA IYIZOBA, JCA)</strong><br /> The appellant and two others were arraigned in the lower court on an amended charge which read as follows:</p> <p>COUNT ONE:</p> <p>That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 manufactured an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE AND YOU THEREBY COMMITED AN OFFENCE CONTRARY TO Section 1(a) of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.</p> <p>COUNT TWO<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 distributed an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos and you thereby committed an offence contrary to Section 1(a) of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.</p> <p>COUNT THREE<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 did conspire among yourselves to sell dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road,</p> <p>Agege, Lagos which did not represent the quality you represented it to be and you thereby committed an offence contrary to Section 1(18) (a) (ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(ii); 1(18) (b)(ii) and 3 of the same Act.</p> <p>COUNT FOUR:<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 sold dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos which did not represent the quality you represented it to be and you thereby committed an offence contrary to Section 1(18) (a) (ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(ii); 1(18) (b)(ii) and 3 of the same Act.</p> <p>COUNT FIVE:<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 did conspire among yourselves to adulterate a drug to wit: MY PIKIN BABY TEETHING MIXTURE and you thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a) (i) and 3 of the same Act.</p> <p>COUNT SIX:<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Sarewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 adulterated a drug to wit: MY PIKIN BABY TEETHING MIXTURE so as to change materially the quality or efficacy of the same without notice to the purchasers, knowing that same will be sold as a drug and you thereby committed an offence contrary to Section 1(18) (a) (i) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(i) and 3 of the same Act.</p> <p>Trial proceeded before Okeke J of the Federal High Court, Lagos Division. The Prosecution called seven witnesses. The Appellant as the 2nd accused person testified as DW1 and is the only witness for the Defence; exhibits were tendered and admitted in evidence. Final addresses were filed and duly adopted. In its judgment delivered on 17/05/13, the lower Court discharged and acquitted the Appellant and the two other accused persons on Counts 1, 2, 5 and 6 but convicted them on Counts 3 and 4. They were sentenced to seven years imprisonment on each of counts 3 and 4, the terms to run concurrently. The Court ordered that the assets of the 3rd accused Barewa Pharmaceuticals Ltd be wound up and forfeited to the Federal Government of Nigeria.</p> <p>Dissatisfied with the judgment, the Appellant and his co-accused filed separate notices of appeal on 3/7/13. It is pertinent at this point to mention that judgment had earlier been delivered by this court in this appeal on the 31st day of December, 2013 coram S.D. Bage, S.J Ikyegh and Tijjani Abubakar JJCA affirming the judgment of the lower court. All the Appellants appealed to the Supreme Court. It turned out that the judgment was based on an abandoned Notice of Appeal filed on 26/6/13 instead of the valid Notice of Appeal filed on 3/7/13. The Supreme Court consequently declared the judgment a nullity and remitted the appeal back to this Court for hearing de novo on the valid Notice of Appeal filed on 3/7/13.</p> <p>The Notice of appeal of 3/7/13 has 13 grounds of appeal. Briefs of argument were filed and exchanged. The Appellant's brief of argument da-fed and filed 5/7/13 was settled by O.E.L Ideh Esq. From the 13 grounds of appeal they distilled the following 7 issues for determination.</p> <p>1.Whether the Appellant can be convicted in the absence of strict scientific evidence that the drug "My Pikin Baby Teething Mixture" was dangerous: Ground 10.<br /> 2.Whether the learned trial Judge was right in convicting the Appellant on the basis of unsubstantiated, unreliable and contradictory evidence. Grounds 3, 5, 6, 7 and 9</p> <p>3.Whether the learned trial Judge was right in failing to consider and evaluate the evidence of the defence tendered by DWI. Grounds I and 2<br /> 4.Whether the learned trial Judge was right in failing to consider relevant evidence that could establish the innocence of the Appellants. Ground 4<br /> 5.Whether the iearned trial Judge was right in convicting and sentencing the Appellant upon a finding of failure to follow proper test procedures when the charge before the Court was for manufacture and sale of adulterated/dangerous drugs. Grounds 8,11, and 14<br /> 6.Whether there was any evidence of conspiracy to sell dangerous drugs. Ground 12<br /> 7.Whether the sentence of seven years imprisonment against the Appellant was justif ied in the circumstance of the case.Ground 13</p> <p>The Respondent's brief of argument dated 28/10/13 and filed on 29/10/13 was settled by Charles Omosohwofa Esq of Chief Mike Ozekhome SAN's Chambers and therein they formulated three issues for determination as follows:</p> <p>1.Whether the lower Court made a finding, based on scientific evidence that the drug "My Pikin Baby Teething Mixture" with Batch No 02008 was dangerous which therefore support the conviction of the appellants.<br /> 2.Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.<br /> 3.Whether the trial Court was right in convicting the 3rd Appellant and consequently ordering that it be wound up and its asset forfeited to the Federal Republic of Nigeria.<br />  <br /> The Appellant's Reply brief is dated 7/11/13 and filed on 8/11/13.</p> <p>At the hearing of the appeal on 13/4/16, O.E.L. Ideh Esq learned counsel for the appellant in adopting the Appellant's briefs urged the Court to allow the appeal while Chief Mike Ozekhome SAN for the Respondent in adopting the Respondent's brief urged us to dismiss the appeal.</p> <p>I shall in the determination of this appeal adopt the Respondent's issues 1 and 2 and the Appellant's issue 7 as the 3rd issue. Respondent's issue 3 is not relevant in the instant appeal. The Appellant's issue one is basically same as the Respondent's issue one. Appellant's issues 2, 3, 4, 5 and 6 will be subsumed under the Respondent's issue 2. Appellant's issue 7 will be the 3rd issue.</p> <p>APPELLANTS ARGUMENTS:</p> <p>ISSUE ONE;</p> <p>Whether the lower Court made a finding, based on scientific evidence that the drug "My Pikin Baby Teething Mixture" with Batch No 02008 was dangerous which therefore support the conviction of the appellants.</p> <p>Learned counsel for the appellant on their issue one, relying on the cases of Adisa v. The State (1991)1 NWLR (Pt.168) 490 at 504. paras. G-H; 510. paras.B-O; Inspector-General of Police v. Oguntade (1971) 2 All N.L.R. 11; Yanor v. State CI965) NMLR 337 and Akinfe v. State (1988)3 NWLR (Pt.85) 729 submitted that the burden  is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt; that the burden does not shift and where there is any doubt in the evidential chain of proof as to the guilt of the accused person, the trial Judge is under a duty to hold that the Prosecution has not proved its case and to discharge and acquit the accused person. Counsel submitted that in the case of scientific evidence the task of the prosecution is even more onerous. He argued that the Prosecution must lead strict scientific evidence that the drug "My Pikin Baby Teething Mixture" was indeed dangerous — as that is the offence with which the Appellant was charged; and that no other type of evidence; not even a confession will suffice. He relied on Federal Republic of Nigeria v. Daniel (2012) All FWLR (Pt. 627) 687.</p> <p>Learned counsel further submitted that the Prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused person's possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court. In other words, the Prosecution must guarantee the integrity of the entire process in order to secure a conviction. He cited Sunmola Ishola v. The State NMLR (1) 1969; CAW/25/67; Sunday Sosimi v. Commissioner of Police reported in (1975) (6/CCHCJ 881 at 883. Learned counsel submitted that the case against the Appellant (and other accused persons) was that the drug "My Pikin Baby Teething Mixture" (Batch 02008) manufactured by the accused persons, was adulterated/contaminated with Diethylene Glycol; the alleged adulterant and that the drug was dangerous. Counsel argued that in convicting the Appellant (and the other accused persons), the lower Court placed reliance on the evidence of PW4, PW5, PW6 and PW7 without analyzing same. He set out the evidence of PW4 and submitted that the testimony was fraught with legion of unexplained gaps and as such, most unreliable to use as a basis for the conviction of the accused persons on Counts 3 and 4 of the amended Charge. Counsel submitted that:</p> <p>i. There was no evidence showing that what PW4 collected from "wholesalers around" was indeed what he had actually sold to them. The "wholesalers around" could probably have purchased the product from sources other than Roca Pharmacy Limited (PW4's company);</p> <p>ii. Also, there was no scintilla of evidence as to the identity of these "wholesalers around" from whom PW4 had retrieved various Batches of "My Pikin Baby Teething Mixture"; their names, their addresses etc.</p> <p>iii. More importantly, there was no Collection identification and sampling of the drugs against the "wholesalers around" to whom Roca had sold the drugs. In other words, PW4 could have collected any drug from anywhere and simply claimed that it was the same drug he sold to the "wholesalers around".</p> <p>Counsel submitted that the Police was under a duty to investigate the chain between Roca Pharmacy and the "wholesalers around" and in return, between "wholesalers around" and Roca Pharmacy; and that the "wholesalers around" ought to have been called to give evidence of what Roca Pharmacy sold to them and what in turn Roca Pharmacy collected from them.</p> <p>Counsel impugned the evidence of PW5 on the basis that he admitted that no investigation was carried out on receiving information about the death of some infants after taking the suspected adulterated product. Counsel contended that PW5 confirmed receiving the samples on 28/11/08 but the packaging and sampling was not done until 14/01/09; 44 days after the products were received without any explanation for the delay. This he submitted undermined the integrity of the entire process and raised doubt as to whether it is the same sample that was taken or collected from the accused person that was eventually analyzed.</p> <p>Learned counsel complained that PW6 did not conduct the analysis himself and could not say how the product arrived in the laboratory of NAFDAC at Oshodi for further analysis. He contended that the evidence given by PW6 was hearsay as he admitted under cross-examination that he was not responsible for the conduct of the laboratory analysis but merely signed the laboratory report Exhibit T when it was forwarded to him for signing. Counsel submitted that one Adekunle Segun Olawale who conducted the analysis was not called to give evidence and no explanation was given for the failure to call him. He also found fault with the evidence of PW7 Anikoh Musa Ibrahim, an analyst in the Oshodi Laboratory of NAFDAC. He had confirmed the presence of a contaminant called Diethylene glycol in the sample of "My Pikin baby teething Mixture Syrup Batch 02008 but he was not sure as to who received the products in his laboratory and what was in fact received. Counsel submitted that this is a fundamental gap in the case of the prosecution. He further contended that the lower Court erred in law in finding the Appellant (and other accused persons) guilty on Counts 3 and 4 on the strength of the confirmation by the Appellant (2nd accused person) of the five cartons of “My Pikin Baby Teething Mixture" (Batch 02008) recovered from Roca Pharmacy. Counsel submitted that the prosecution did not achieve even the minimum standard of proof that the drug "My Pikin Baby Teething Mixture" was dangerous and ought not to have convicted the appellant on counts 3 and 4.<br />  <br /> ISSUE TWO:</p> <p>Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.</p> <p>On their issue two, whether the learned trial Judge was right in convicting the Appellants on the basis of unsubstantiated, unreliable and contradictory evidence, learned counsel pointed out the contradictions in the evidence of the prosecution witnesses and submitted that the learned trial Judge ought to have considered these contradictions and resolved same in favour of the Appellant. Counsel referred to the cases of Harb v F.R.N (2008) ALL FWLR (Pt 430) 705 and Ikemson v. State (1989) 3 NWLR (PL 110 455 at 466.</p> <p>On issue three, whether the learned trial Judge was right in failing to consider and evaluate the evidence of the defence tendered by DWI. Counsel opined that the learned trial judge failed to consider and evaluate the evidence led by DWI; the only witness for the defence. He submitted that his lordship rather referred to and relied wholly upon the unsworn statement of DWI; which said statement; though tendered as Exhibit 01 by PW5 during his examination in chief, did not in itself offer evidence of its truth for the purpose of arriving at the conclusion reached by the learned trial Judge. Counsel referred to the case of Tegwonor v State (2008) 1 NWLR (Pt. 1069) 630 at 664 where the court held:</p> <p>“A trial court must review all the evidence before it. it is the totality of the evidence that has to be evaluated and assessed together. A trial court cannot pick and choose the evidence to be assessed. Thus a proper evaluation of evidence is absolutely important, for in order to determine a case and come to a just conclusion the trial Judge must assess and appraise all evidence before him."</p> <p>Counsel submitted that the failure of the learned trial Judge to consider the evidence and evaluate same occasioned a grave miscarriage of justice.</p> <p>On issue 4, whether the learned trial Judge was right in failing to consider relevant evidence that could establish the innocence of the Appellants, learned counsel submitted that the lower court failed to consider relevant evidence that could have disproved the guilt of the accused. For example, failure of PW2 to obtain and tender in evidence the report of the analysis of the sample of "My Pikin Baby Teething Mixture" which allegedly killed the child of one Njoku Chidi Bright; failure to consider the effect of the 44 days delay in conducting the sampling procedure on the suspected adulterated products already in the custody of NAFDAC; failure to consider the import of Exhibit CI &amp; C2 (Certified True Copy of Punch Newspaper cut-out dated November 26th 2008. Learned counsel submitted that the learned trial Judge erred in finding the Appellant guilty on counts 3 &amp; 4 when there was such a gaping hole in the investigation of the case.</p> <p>On issue 5, learned counsel submitted that the lower court erred in convicting and sentencing the Appellant upon a finding of failure to follow proper test procedures when the charge before the Court was for manufacture and sale of adulterated/dangerous drugs. Counsel opined that the material charge before the Court (as in Counts 3 and 4 of the amended Charge) borders on conspiracy to sell and selling dangerous drug; and that the Appellant (and the other accused persons) were never charged with failing  to   follow  test   procedures  or  manufacturing   below certain quality/standard. Counsel argued that the Charge upon which the plea of the Appellant (and the other accused persons) was taken and upon which they were tried is at variance with the offence of failing to follow test procedure or manufacturing drug below certain quality.</p> <p>On their issue 6 whether there was any evidence of conspiracy to sell dangerous drugs, counsel submitted that in order to establish the offence of conspiracy, the apex Court held in numerous cases, Abdullah/' v. The State (2008)17 NWLR (Pt.1115)203 at 221, paras. F-H; Kaza v. The State (2008)7 NWLR (Pt. 1085)125, Ishola v. The State (1972)10 S. C. 63 at 76-77; Haruna v. The State (1972) 8-9 S.C. 174; Oladejo v. State (1994)6 NWLR (Pt. 348)101 at 127, 6badamosi &amp; Others v. The State (1991)6 NWLR (Pt. 196)182 that it is the duty of the Prosecution to adduce evidence to establish the following ingredients:</p> <p>i.An agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; and<br /> ii.That an illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.</p> <p>Counsel submitted that proof of conspiracy is generally a matter of inference. He opined that there was no evidence of complicity, or agreement between the Appellant and the other accused persons to sell dangerous drug to Roca Pharmacy or any other person. Counsel submitted that the learned trial Judge misdirected himself gravely in finding the accused persons guilty of conspiracy when the prosecution did not even attempt to lead evidence to show conspiracy.<br />  <br /> On their issue 7, whether the sentence of seven years imprisonment against the Appellant was justified in the circumstance of the case, learned counsel submitted that even if the conviction of the appellant was valid, that the sentence of seven years imprisonment was excessive because the Appellant was a first time offender and the prosecution led no evidence to show that the Appellant had the mens rea to commit the offence. He posited that the learned trial Judge should have exercised his discretion judicially and judiciously to impose a lesser sentence rather than a sentence that was close to the maximum penalty of ten years imprisonment for each offence.</p> <p>Counsel finally urged us to resolve all the issues in favour of the Appellant and reverse the decision of the lower Court with an order of discharge and acquittal.</p> <p>RESPONDENTS ARGUMENTS:</p> <p>On issue one, learned senior counsel for the Respondent submitted that some of the arguments and complaints by the Appellant are completely obtuse, inflated and totally unrelated to the issues as to whether scientific evidence was adduced to prove that the drug 'My Pikin batch 02008' was dangerous. He submitted that there was clear evidence based on the certificates emanating from NAFDAC laboratory report on test carried out on samples "of batch 02008 received from the -3rd Convict (Barewa Pharmaceutical Ltd) through the Establishment Inspectorate Department of NAFDAC (EID) on the 25th November 2008 that the sample was contaminated with the contaminant Diethylene Glycol.<br />  <br /> Learned senior counsel referred to Sections 55 (1) and (2) Evidence Act, 2011 which allows the production of a certificate by certain Government officials to be taken as sufficient evidence of facts stated therein. Counsel submitted that it was established in evidence that the Appellants lacked the capacity to conduct the necessary tests to determine the wholesomeness of its raw material or its finished product. On the other hand, it was not in dispute that the Respondent has the capacity to conduct the test on the samples of "My Pikin" which on the basis of the findings reported on the certificate issued by the appropriate officers of the Respondent, showed conclusively that the product batch 02008 was contaminated with Diethylene Glycol. Counsel submitted that PW1 a qualified and registered pharmacist testified that Diethylene Glycol is very poisonous and that this piece of scientific evidence was never rebutted by the Appellants and DWI who is a Chemist and the Quality Assurance Officer of the Appellants at the time. Counsel further submitted that once it is shown that Diethylene Glycol is present in a drug as a contaminant; such drug is without more unwholesome and very dangerous as in the case with Batch 02008.</p> <p>Learned senior counsel submitted that the Appellant and the two other accused persons, now convicts made statements and were present when samples were packaged and sent to the laboratory and that evidence was led by the Respondent to show the various tests that were carried out with results which culminated in the certificate issued and now relied upon. With the certificate having been tendered and admitted in evidence, the burden shifted to the Appellants to adduce evidence to discredit the certificate. Counsel submitted that they failed to discharge the evidential burden. Counsel urged us to resolve issue one in the Respondent's favour, and to hold that the Respondent has proved that My Pikin Baby Teething Mixture batch no. 02008 manufactured by the accused persons was adulterated/ contaminated and/or dangerous.</p> <p>On issue 2, whether the evidence proffered by the respondent was credible enough to support the conviction of the Appellants and the other convicts, learned senior counsel for the Respondent submitted that the argument proffered by the Appellant as regards conflicts in the evidence of the prosecution witnesses is misconceived. Learned silk posited that it was clear from the evidence adduced that all the initial samples recovered by PW2 were sent to the Central Drug Control Laboratory of NAFDAC for test; and that there is evidence that the investigation was later handed over to the team of PW3 and PW5 together with the 5 cartoons of batch 02008 recovered from Roca Pharmacy. He submitted that PW5 testified that he received the 5 cartoons from the team of PW2 which was the correct position and PW3 said she dispatched one set of samples to PW5 to be kept as exhibit after handing over one set to the accused persons (convicts) and the third set forwarded to the laboratory. He submitted that PW2 did not say she sent the same sample to NAFDAC. Learned silk urged us to discountenance the alleged contradictions. He opined that if there are any contradictions at all, they are inconsequential and cannot affect the culpability of the Appellant. He cited in aid the case of DIBIE V. STATE (2007) 2 NCC 475 AT PAGE 495-496. RATIO 13.</p> <p>On the allegation by the appellant that certain witnesses (receptionist who received the sample at Oshodi laboratory) were not called to give evidence, learned senior counsel submitted that there is no rule of law which imposes an obligation on the prosecution to call a host of witnesses; that all the prosecution is required to do is to call enough material witnesses to prove its case. He cited the cases of OOOFIN BELLO V. THE STATE (1966) 1<br />  <br /> ALL NLR 223 AT 230; SAMUEL AOAJE V THE STATE (1979) 6-9 SC 18 AT PAGE 28; EO. OKONOFUA &amp; ANOR V. THE STATE (1981) 6-7 SC. 1 AT 18; OGOALA V. THE STATE (1991)2 NWLR (PT. 175). 509 AT 527; NWAMBE V. STATE (1995) 3 NWLR (PT.384) pp V 40 7-408 PARAS. E-A.</p> <p>On the Appellants contention that there are discrepancies in the witness statement of PW7 to the Police (exhibit V) and the certificate of laboratory analysis (exhibit U) on what was received (My Pikin Paracetamol Syrup) and the description of the product, Learned senior counsel submitted that these are insignificant discrepancies conceivable within the province of errors in human daily transactions. Counsel submitted that a thorough perusal of exhibits U and V and other evidence before the Court shows that PW7 was referring to My Pikin Baby Teething Mixture and that this was expatiated in his evidence-in chief. Counsel posited that it is common-place knowledge that it is only the same products manufactured by the same company that can share the same brand name, content, size, batch number and NAFDAC registration number and that the particulars disclosed in exhibit U by PW7 are the same as disclosed in exhibit T, save that exhibit T mentioned My Pikin Baby Teething Mixture. Counsel further submitted that it is a matter of fact that My Pikin is a brand name for teething drugs manufactured by Barewa pharmaceutical and that no other pharmaceutical company in Nigeria bears such name as testified to by the appellant as 2nd accused person during his cross-examination.</p> <p>Counsel referring to the case of AKINBISAOE V. STATE (2007)2 NCC PAGES 76 AT 88 RATIO 3, submitted that the exhibits must be considered holistically in their entirety to decipher their real import and effect and not piecemeal as the Appellants did.</p> <p>On issue 3, whether the sentence of seven years imprisonment imposed on the Appellant was justified in the circumstance of the case, counsel submitted that the issue of the imposition of a sentence within the bounds provided is purely within the discretionary power of the Court. Counsel argued that there is nowhere In the miscellaneous Offences Act where it is provided that the trial judge should impose a sentence below what the Act prescribed. He posited that the fact that the Appellant has not been convicted of any offence prior to that by the trial Court is not in itself, a requirement of the law for a derogation from the provision of law regarding a crime for which the Appellants has been found guilty by the trial Court. Counsel submitted that it is all within the discretion of the trial court and that the discretion must be exercised judicially and judiciously within the law.</p> <p>On the conviction of the appellant on count 3 learned counsel submitted that the Respondent led evidence to show that the Appellant and his co-accused manufactured My Pikin Teething Mixture during the time they all knew they had no materials in their laboratory to guarantee the safety and/or quality of the product and also purchased unsafe Propylene Glycol from road side retailers despite their wealth of experience in drugs production and from such circumstantial evidence the Court rightly inferred conspiracy. Learned counsel urged the court in inferring conspiracy from the circumstances of this case, to lay particular emphasis on the findings of PW1 A 2 on their visit of 25th day of November, 2008, to the premises of the accused persons and the interrogations by PW3 as stated in both their oral testimonies and written statements (Exhibits ‘E' &amp; H) as well as the confessional statement of the 2nd accused person (Exhibit ‘01’).<br />  <br /> In respect of count 4, counsel submitted that the Respondent led evidence to prove beyond reasonable doubt that the Appellants sold My Pikin Baby Teething Mixture having changed materially the quality, substance or efficacy of the drug and/or rendered same dangerous or unfit by reason of the adulteration of the product. Learned senior counsel submitted that the Respondent succeeded in linking the accused persons with the six-count charge before the lower court. He submitted that the 1st accused person is the General Manager/Production Pharmacist of the 3rd accused person while the 2nd accused person is the Quality Assurance Manager for the 3rd accused person. He opined that the Appellant and his two co-accused are guilty of the offences for which they have been charged and convicted by reason of Section 3(2) of the Counterfeit and Fake Drugs and unwholesome Processed Foods (Miscellaneous provisions) Act Cap C34 Laws of the Federation of Nigeria 2004 as well as Sections 3 (l) of the Miscellaneous Offence Act, Cap. M17 LFN, 2004.</p> <p>Counsel submitted that the prosecution proved its case beyond reasonable doubt. He submitted that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt relying on STATE V. ABIBANGBE (2007) 2 NCC 628 AT 687, RATIO 4 and OIBIE V. STATE (2007) 2 NWLR 475 AT PGS 495-496.</p> <p>Learned senior counsel urged us to dismiss the appeal and uphold the judgment of the trial court which convicted the accused persons in counts 3 &amp; 4,</p> <p>RESOLUTION:<br /> It is surely stating the obvious to say that the burden is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt. In the instant case, the Prosecution must lead clear scientific evidence that the drug "My Pikin Baby Teething Mixture" was indeed dangerous; and that there was a conspiracy by the Appellant and his co-accused to sell the dangerous drug to Roca Pharmacy. Even where there is a confession by an accused person, it does not dispense with the requirement of scientific proof of the offence charged. See Ishola v. The State NMLR (1) 1969. As rightly submitted by learned senior counsel for the Respondent, proof beyond reasonable doubt does not however mean proof beyond the shadow of doubt. Learned counsel for the Appellant is also right that scientific proof means that the Prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused person's possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court. The integrity of the entire process must be guaranteed. In Ishola v. The State NMLR (t) 1969 the court observed:</p> <p>"it is of the utmost importance then that the plant found in the possession of an accused person is the actual one that has been analyzed by the Chemist. The prosecution therefore has a duty to prove that once the plant is taken from the possession of the accused, every possibility whatsoever of its being tampered with or its being substituted with another has been excluded. Once an opportunity exists for this, the chain snaps and a reasonable doubt would exist as to whether the plant that was taken from the possession of the accused is the one that has been analyzed...."<br />  <br /> It must however be noted that the drug in question is the product of the 3rd accused, Barewa Pharmaceutical Ltd. The company alone manufactures products with the brand name "My Pikin" duly registered with NAFDAC. No other pharmaceutical company in Nigeria manufactures products bearing that brand name. The Appellant who gave evidence as DWI under cross-examination at page 238 of the Record observed:</p> <p>"My Pikin is a brand name for teething drugs produced by Barewa Pharmaceutical Ltd NAFDAC conducted the preregistration inspection of Barewa Pharmaceutical premises for the production of my Pikin Baby Teething Mixture between 2005 and 2006."<br /> It can consequently be rightly assumed that any of the products in circulation in Nigeria are the ones manufactured by the 3rd accused. It may not be out of place to recapture the facts giving rise to this case for better appreciation of its peculiarities. The facts can be taken from the evidence of PW1 Mrs Hauwa Keri, a Pharmacist and at the time of her evidence Director of Establishment Inspection NAFDAC. Before then she was the Director of Narcotics and Controlled substances NAFDAC. Her evidence is at pages 134 - 151 of the printed records:</p> <p>Sometime in the middle of November, 2008, I received a telephone call from the Chief Pharmacist of Ahmadu Bello University Teaching Hospital Zaria reporting to me that some children died after taking a syrup called "My Pikin". I immediately reported the matter to the then Director-General Prof. Dora Akunyili who instructed me to investigate the case. I set up a team of NAFDAC inspectors who went to ABUTH Zaria and investigated the case. They came back and reported to me that they had interviewed the Chief Pharmacist Alhaji Salisu Ibrahim. They also interviewed the Head of Pediatrics' Department Dr.Malro Bugaje. They also spoke with the Chief Matron of the Hospital. They were able to retrieve the remnants of the syrup from Dr. Bugaje. Preliminary investigation revealed that the drug that was common to all the children that died was "My Pikin' All the children had the same symptom of renal failure characterized by the inability to pass urine. After the receipt of the report, I dispatched two teams - one to the UCH Ibadan and the other to Lagos University Teaching Hospital (LUTH) Lagos. I also asked my officers in Kaduna to purchase random samples of "My Pikin" syrup off the shelf. The random samples were sent to the laboratory together with the remnants from ABUTH and LUTH. With the first result from the laboratory we went to Barewa Pharmaceutical Industries Ltd and sealed it up. I asked all our officers nationwide to mop up all "My Pikin" syrup irrespective of batch, even though the laboratory result was for batch No. 02008. That was because the result indicated contamination with a deadly chemical called Diethylene Glycol (Anti freeze). We also immediately put out a public alert urging the public to stop using "My Pikin" syrup and all brands of paracetamol syrup till further notice. We also made a press statement to heighten public awareness and to forestall further casualties. Barewa Pharmaceutical Industries Ltd was directed to mandate their distributors to withdraw all batches of the syrup in their possession. I then led a team of inspectors to Barewa Pharmaceutical Industries Ltd. Mrs. Titi Owolabi who is the Deputy director In charge of Lagos State Zone and Mrs. Edosa Ogbeide next in command to Mrs. Owolabi were in my team. It was at this visit that we established some facts. First the contaminated batch 02008 was produced around the time that a school certificate holder purchased a keg of that Diethylene Glycol wrongly labeled propylene Glycol. We also established that the Quality Control Officer did not carry out the mandatory Identification test for all the raw material before production as required by law. Even more was the discovery that production manager went ahead to produce batch 02008 with only a verbal clearance from the Quality Control Officer. Several other violations were documented in the final report. At the entry meeting with the management of Barewa Pharmaceutical Industries Ltd we asked the key officers to be at the meeting so that we see their qualifications and their terms of engagement. We also requested to see their documents like batch manufacturing records, quality control release records, purchase orders and store ledger. We also visited the whole factory from receipt to release. I then submitted the report to the Director-General with the recommendation that the case be transferred to the Enforcement Department because of the involvement of illegal chemical marketers."</p> <p>I read carefully the cross-examination of PW1 which is at pages 140 to 151 of the printed record. Her evidence was unchallenged. The genesis of the problems of the Appellant and his co-accused are consequently as set out in the evidence of PW1. With that background information, we can now go on to consider whether the finding of fact by the lower court that the drug "My Pikin Baby Teething Mixture batch 02008 was indeed dangerous can be faulted. It was argued for the Appellant that the lower court in convicting the appellant on counts 3 &amp; 4 relied on the evidence of PW4, PW5, Pw6 and PW7 when their evidence failed to meet the required scientific standard for such conviction. PW4 is one Ezekiel Akerele who was at the relevant time the sales representative of ROCA Pharmacy who went round to retrieve from their customers (wholesalers around) My Pikin Baby Teething mixture in accordance with the directives of Barewa Pharmaceutical Ltd the 3rd accused/convict in their letter Exhibit M. The Appellant had submitted that PW4's testimony:<br />  <br /> "—is fraught with legion. of unexplained gaps and as such, is most unreliable to secure a finding of guilt of the offences in Counts 3 and 4 of the amended Charge. There was no evidence whatsoever led by the Prosecution in respect of a number of essential particulars which would have otherwise made the testimony a reliable one. For example:</p> <p>i.There was no evidence showing that what PW4 collected from "wholesalers around'1f was indeed what he had actually sold to them. The "wholesalers around" could probably have purchased the product from sources other than Roca Pharmacy Limited (PW4's company);<br /> ii.Also, there was no scintilla of evidence as to the identity of these "wholesalers around" from whom PW4 had retrieved various Batches of "My Pikin Baby Teething Mixture"; their names, their addresses etc.<br /> iii. More importantly, there was no collection identification and sampling of the drugs against the "wholesalers around" to whom Roca had sold the drugs. In other words, PW4 could have collected any drug from anywhere and simply claimed that it was the same drug he sold to the "wholesalers around"</p> <p>With the background history of this case as set out above, it is obvious that the Appellant's complaints are without merit. Batch 020O8 of My Pikin is what has been found to be dangerous. Five cartons of batch 02008 were amongst the drugs retrieved by PW4 from wholesalers around to whom they had supplied the drugs, It is obviously unlikely that PW4 will collect what he did not supply and equally unlikely that the wholesalers would release to PW4 goods not purchased from him. There is no reason for a trader to offer up to PW4 drugs not purchased from PVV4. The argument of counsel defies logic and is contrary to common course of human reaction to such a situation. Besides as earlier stated, the drug in question is the product of the 3rd accused, Barewa Pharmaceutical ltd. The company alone manufactures products with the brand name. No other pharmaceutical company in Nigeria manufactures products bearing that brand name. The 3rd Accused/convict knew their distributors and the distributors knew their customers to whom they supply the drugs. Indeed the Appellant and his co-accused especially the 3rd accused Barewa Pharmaceuticals did not deny in their statements or oral evidence that the products were their own. They had identified tine drugs as theirs. The identities of the wholesalers and individual sampling of what was retrieved from them are consequently irrelevant under the circumstances. Appellant's contention is obviously a case of pleading to allow fanciful possibilities deflect the cause of justice. All the drugs retrieved by PW4 had been duly marked and surrendered to NAFDAC. PW3 at page 184 of the record testified as follows:</p> <p>"The Sales representative of ROCA pharmacy made a written statement to the Police and Batch 02008 was sampled again in the presence of superintendent pharmacist, production pharmacist and analyst of Barewa pharmaceutical Ltd. The sample was in triplicate, one set given to the three officers of Barewa Pharmaceutical Ltd. One set was sent to NAFDAC Control Laboratory. The third set was given to the investigating Police officer (IPO) as exhibit'</p> <p>PW5 a Deputy Superintendent of Police attached to Federal Task Force Counterfeit and fake Drugs Police Squad NAFDAC testified that this case was referred to the squad for investigation by Establishment Inspection Directorate NAFDAC which also transferred to them five cartons of suspected contaminated My Pikin Baby Teething mixture. PW5 testified:</p> <p>"Mr.Ezekiel Akerele a sales representative of ROCA Pharmaceutical Ltd of no. 34 Balogun Street Agege, Lagos who is a distributor of Barewa Pharmaceutical Ltd from whom the inspection  Directorate of  NAFDAC  recovered  the alleged contaminated My Pikin Baby teething mixture batch no. 02008 manufactured by Barewa Pharmaceutical Ltd confirmed that the said  pharmaceutical  product   batch   02008   is  among the pharmaceutical product recovered from him. The accused persons were called upon. They came and inspected the products and confirmed that the product batch 02008 was manufactured by Barewa Pharmaceutical Ltd. The Police form D22 was filled containing the particulars of the alleged contaminated My Pikin Baby Teething mixture and the names of the accused persons. The product batch was packaged .and sealed in the presence of the accused persons in three units. On each of the sealed units of the product the accused persons wrote their names and signed. I countersigned. One of the sealed units of the product was given to the accused persons. One of the units was retained by the Federal Tax Force on Counterfeit and Fake Drugs Police Squad Investigation team. One of the units accompanied with the Police form D22 was forwarded to NAFDAC Laboratory for analysis"</p> <p>Learned counsel for the appellant had contended thus:</p> <p>"Whereas PW5 confirmed receiving the samples on 28/11/08, the packaging and sampling was done on 14/01/09 44 DAYS AFTER THE PRODUCTS WERE RECEIVED by PW5 and his team (page 209 of the record)!!! No explanation was given by PW5 for the 44 day interlude between the initial arrest of the accused persons, and the date the sampling was earned out. In such a sensitive case, Involving evidence the integrity of which must be secured and accounted for at every moment, PW5 waited for 44 days before conducting the sampling procedure on the suspected adulterated products already in their custody."</p> <p>Learned counsel overlooked the fact that before PW5 took over the drugs it had already been sampled so that the sampling of 14/10/09 was a second sampling as shown in the evidence of PW3 set out above that "The Sales representative of ROCA pharmacy made a written statement to the Police and Batch 02008 was sampled again". The 44 days wait was consequently of no moment. Besides as earlier stated, Barewa Pharmaceuticals are the only manufacturers of the drug. They identified the products as their own. The possibility of substituting the samples with another is nonexistent. There was no doubt whatever that the samples are same as the ones retrieved by PW4 who confirmed the samples. The attetapt by learned counsel to challenge the authenticity of the drugs at this point is surely an afterthought.</p> <p>PW6, Segun Mamodu, Deputy director and Head Central Drug Laboratory, NAFDAC Yaba testified that the sample of a product labeled and sealed as My Pikin Baby Teething Mixture Batch no. 02008 manufactured by Barewa Pharmaceutical ltd was brought to their laboratory by the Investigating Police Officer from NAFDAC Enforcement Directorate for analysis. It was found that it contained Diethylene. The sample was taken to their sister Laboratory Oshodi for confirmatory tests. He prepared a Laboratory Report which was admitted in evidence as Exhibit T. PW7; Anikoh Musa Ibrahim the analyst in NAFOAC Laboratory Oshodi also found that the sample was contaminated by Diethylene Glycol. He also prepared a Report admitted in evidence as Exhibit U.<br />  <br />  One of the complaints of the Appellant is that the Report of PW6 was hearsay because the analysis was not carried out personally by PW6 but by one Adekunle Segun Olawole, the head analyst under PW6. This argument in my view is misconceived. Adekunle worked under the direct supervision of PW6. Whatever is done in that Department under the supervision of PW6 is his act as the head of the Department. As to how the product came to the laboratory, the evidence of PW6 is that it was brought to them by the IPO. From the cross-examination of PW7 at page 220-223 of the Record, there is no confusion as to what was received. PW7 testified that the sample came from the Central Laboratory Yaba to his Laboratory in Oshodi. Although PW7 referred to the sample as My Pikin Paracetamol Syrup, in Re¬examination he said it was the same as My Pikin Baby Teething Mixture. Such minor discrepancies which result from failure on the part of PW7 to pay attention to the full details of the actual name of the product cannot be a ground for questioning the judgment of the court. See Musa v The State (2009) 15 NWLR (Pt. 1165) 465 @ 489; Habib Musa v. The State (2013) LPELR-19932(SC).</p> <p>The truth of the matter is that throughout the entire gamut of the evidence led in this case, the appellant and his co-accused did not at any point deny their presence during the packaging of the samples or the fact that the drug My Pikin Baby Teething Mixture batch 02008 was manufactured by the 3rd accused/convict. They knew and accepted that there was a problem and they were as anxious as NAFDAC to withdraw the drugs from the market to avoid further loss of life, hence their letter exhibit M to PW4. There was in fact no break in the chain of handling the samples. Samples of the drug were tested at various stages as shown in the list of additional exhibits at page 384 of the supplementary records tendered by the defence through PW1. The process was clear and smooth and culminated in the certificates issued by PW6 and PW7 Exhibits T and U. I agree with learned senior counsel for the Respondent that based on these certificates emanating from NAFDAC laboratories in Yaba and Oshodi, the sample was contaminated with the contaminant Diethylene Glycol. I join the Respondent in asking "what other scientific evidence or proof could be more sufficient and convincing given the provision of Section 55(1) and (2) of the Evidence Act. The sections provide:</p> <p>"55 (1). Either party to the proceedings in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist; an Assistant Government Pathologist or Entomologist or the Accountant-General, or any other Pharmacist so specified by the Government Pharmacist of the Federation or of a State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State or any accountant specified by the Accountant-General of the Federation or of a state (whether any such officer is by that or any other title in the service of the state or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated therein"</p> <p>(2) Notwithstanding subsection one of this Section any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient evidence of fact stated in it. "</p> <p>In his Reply brief, Mr. Ideh for the Appellant submitted that the presumption of regularity of the certificates based on Section 55(1) and (2) of the Evidence Act is misconceived. He posited that that the law is settled that to satisfy the question whether there is sufficient proof or evidence that the product My Pikin Baby Teething Mixture' was dangerous, the prosecution must prove:<br /> (a)That the identity of the product given to the analyst was the same as the one actually analyzed;<br /> (b)The integrity of the process from sampling all the way to tendering of the product in court; that there is no break in chain.<br /> (c)The integrity of the sampling is unquestionable.</p> <p>I have shown in this judgment so far that the identity of the product given to the analysts was</p> <p>the same as the one actually analyzed. I have also shown that the process of sampling all the way to the tendering of the products in court was unbroken and that the integrity of the sampling cannot rightly be questioned. The 3rd accused/convict Barewa Pharmaceutical is the only manufacturer of the mixture duly registered with NAFDAC. It is safe to assume that the baby mixture once properly packaged as normal and the chain of distribution is confirmed by Barewa; that the product is that of Barewa unless there is evidence to the contrary. In the instant case there was no such contrary evidence. Rather both the appellant and his co-accused and PW4 confirmed the bottles to be that of Barewa before they were sent to the Laboratory for analysis. There did not appear to be any possibility of the drugs being substituted with another. There is no question of the chain snapping and a reasonable doubt arising. Both PW6 and PW7 are officers in charge of the Laboratories established by NAFDAC, the appropriate authority. In the circumstances, the certificates presented by PW6 and PW7 Exhibits T and U have to be taken as sufficient evidence of the facts stated therein. The evidence led by the Appellants did not in any way detract from the facts in the certificates that the samples analyzed were contaminated. Issue one is resolved in the affirmative against the Appellants.</p> <p>On issue 2, contrary to the contention of learned counsel for the Appellant there are no substantial contradictions in the evidence of PW2, PW3 and PW5. The argument of learned counsel for the appellant ran thus:</p> <p>PW2 stated at pages 153-158 of the records that she visited the factory of Barewa Pharmaceuticals Limited three (3) times on the 19th &amp; 24th 25th of November. According to PW2 she forwarded the samples taken during her visit on 24/11/08 to the NAFDAC Laboratory for analysis. PW2 never gave evidence that she recovered any products from Roca Pharmacy, nor that she sent any samples of products to the Federal Task Force on Counterfeit and Fake Drugs Enforcement Directorate. Excerpts of her evidence of 15/05/12 are hereunder reproduced for ease of reference:</p> <p>"We thereafter inspected their quality assurance quarantine room where we took some samples of My Pikin Teething Baby Mixture. I drew up a sample receipt form detailing the batches of</p> <p>my Pikin teething mixture, which included Batch No. 02008 manufactured October 2008 to expire October 2011. 1 also included samples of the raw materials that we took. I signed on behalf of NAFDAC and Mr Adeyemo signed on behalf of Barewa Pharmaceuticals Ltd. We departed the company and forwarded the samples taken to NAFDAC Laboratory for evaluation."<br /> In clear contradiction to the above, PW5 testified on 19/04/12 as follows:<br />  <br /> "... The investigation was ongoing. Botch 02008 was among the other products recovered from Roca Pharmacy. The product Roca (sic) was sent to the Federal Task Force on Fake and Counterfeit Drugs bv Mrs. Owolabi Deputy Director of Establishment Inspectorate Directorate NAFDAC"</p> <p>In further contradiction of the statement of PW5, PW3 testified as follows at pages 183—184 of the records:</p> <p>"... The sales representative of ROCA Pharmacy made a written statement to the police and Batch 02008 was sampled against in (sic) the presence of superintendent pharmacist, production pharmacist and analyst of Barewa Pharmaceuticals Ltd. The sample was in triplicate one set given to three officers of Barewa, one set was sent to NAFDAC Control (sic) Laboratory. The third set was given to the Investigating Police Officer (IPO) as exhibit. The case was transferred from NAFDAC Enforcement Directorate to the Legal department of NAFDAC "</p> <p>Respectfully, we contend that the learned trial Judge in convicting the Appellant, failed to properly avert his mind to the three materially different versions of the same alleged factual situation; as testified by PW2, PW3 &amp; PW5. Whereas PW3 stated that she dispatched one set of the samples to the IPO, he (PW5) testified to having received it from PW2, under the cover of a written document He could therefore not have been mistaken. Surprisingly the written document was not tendered.</p> <p>On account of all these material contradictions, it is our submission that the learned trial Judge ought not to have convicted the Appellant as charged on Counts 3 &amp; 4 as the testimony of PW2, PW3 A PW5 ought not to have been believed and consequently relied upon.</p> <p>There are no material contradictions in the evidence of the three witnesses. The first quoted evidence of PW2 referred to samples collected from the factory of 3rd accused/convict before the mopping up exercise and the return of the samples retrieved by PW4 of ROCA Pharmacy. These samples were forwarded to NAFDAC Laboratory for evaluation as testified by PW2. At page 158 and 160 of the printed record, PW2 further testified:</p> <p>"The company was directed to indicate the recall of their products. The then Director-General directed that we mop nationwide the product My Pikin Baby Teething Product nationwide. I thereafter transferred as directed all documents and products moped up to the Enforcement Directorate of NAFDAC..'</p> <p>The evidence of PW5 clearly tallies with the above further evidence of PW2. PW5 was right when he said that the product from ROCA Pharmacy was sent to the Federal Task Force on Fake and Counterfeit Drugs by Mrs. Owolabi Deputy director of Establishment Inspectorate Directorate NAFDAC. The evidence of PVV3 at pages 183-184 reproduced above also tallies with the evidence of PW5 at pages 195-198 of the Record. PW3 was actually describing the scenario that occurred in the presence of PW5 as they worked as a team. PW5. obtained the statements of the accused persons and that of PW4 of ROCA. He and PW3 then again prepared the samples in triplicate and distributed as Indicated by PW3. The learned trial judge was consequently right in acting on the evidence as there were no material contradictions in the statements.<br />  <br /> On the discrepancy relating to PW7 referring to the sample as "My Pikin Paracetamol Syrup" as against "My Pikin Baby Teething Mixture"; I agree with learned senior counsel for the Respondent that it is a mere discrepancy resulting from failure of human memory which cannot lead to the setting aside of the judgment of the lower court. As I stated earlier, Although PW7 referred to the sample as My Pikin Paracetamol Syrup, in re-examination he said it was the same as My Pikin Baby Teething Mixture. As rightly submitted by Respondent's counsel it is a notorious fact that it is only the same products manufactured by the same company that can share the same brand name, content, size, batch number and NAFDAC registration number.</p> <p>The particulars disclosed in exhibit U by PW7 are the same as disclosed in exhibit T, save that exhibit T mentioned My Pikin Baby Teething Mixture. My Pikin is a brand name for teething drugs manufactured by Barewa pharmaceutical and no other pharmaceutical company-in Nigeria bears such name. Furthermore, it was alleged for the Appellant that exhibit F described the product to have a plastic screw cap whereas in exhibit U, the description of the sample My Pikin Baby Teething Mixture was with a liquid amber coloured glass bottle with tamper proof metallic screw. The truth is that these insignificant discrepancies are not enough to entitle the appellant to an acquittal.   It is only when the contradictions in the evidence of witnesses called by the prosecution are substantial and fundamental to the main issues in question as to create doubts in the mind of the court that an accused person may be entitled to an acquittal. See the cases of Isibor v. State (2002) 9 NSCC 248 @ 254; Ndike v. State (1994) 8 NWLR (Pt. 360) 33. The discrepancies here are conceivably within the margin of human error. See the following cases referred to by Respondent's counsel: Okonji v. State (1987) 1 NWLR (pt.52) 659; State v. Mbanpbese &amp; anor (1988) 3 NWLR (pt.84) 548; Onubogu v. State (1974)9 S.C. l;Wankey v. State (1993) 5 NWLR (pt.295) 542 at 552. In the case of Dibie v State (Supra) also cited by learned counsel for the Respondent the SC observed:</p> <p>"Contradictions in evidence of prosecution witnesses can only be of assistance to an accused person if they are material and substantial Where contradictions are immaterial and are regarded as mere discrepancies, they cannot exculpate an accused from criminal responsibility... Evidence of witnesses in court is not an exact thing like a triangle in geometry. Human beings will see the same object and describe it in different ways with some personal embellishments here and there that colour the object in some inarticulate difference. This does not detract from the main object...."</p> <p>PW7 testified at page 220 of the Record that Exhibit R containing my pikin baby teething mixture batch no 02008 ' manufactured by Barewa pharmaceuticals Ltd is what he was asked to analyze. The exhibit was properly identified by PW7 during his examination-in-chief as being the same as the sample analyzed which was also identified by PW6 as being the same as the sample he analyzed. By the testimonies of PW4 and PW5, the accused persons did not present their own set of drug sample to contradict or disprove the authenticity and accuracy of exhibit R.</p> <p>Learned counsel for the Appellant also made an issue of the fact that the prosecution did not produce any death certificate in proof that death occurred as a result of the sales or distribution of the contaminated batch of My Pikin. As rightly submitted by learned counsel for the Respondent, the charge here is not one of murder. Consequently production of death certificate is unnecessary. The charge is for conspiracy and selling of dangerous drug to ROCA pharmacy. It was proved scientifically that My Pikin "batch 02008 contained diethylene glycol. PW1 in her unchallenged evidence testified that diethylene Glycol is a lethal chemical.</p> <p>On whether there was any evidence of conspiracy to sell dangerous drugs, learned counsel for the Appellant had submitted that the offence was not a strict liability one and that the prosecution must prove the mental element as well as the physical act for which the offence of conspiracy can either be proved directly or reasonably inferred. He cited the cases of Oyediran v. Republic (1967) NMLR 127 and Oduneye v. State (2001) 2 NWLR (Pt 697) 311.</p> <p>In the case of Obiakor v. State (2002) 10 NWLR (Part 774-776) 612 @ 628-629, Kalgo JSC discussed the nature of the offence of conspiracy thus:</p> <p>"Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts…..And for circumstantial evidence to ground conviction, it must lead to one and only one conclusion i.e the guilt of the accused. See Popoola v. Commissioner of Police (1964) NMLR 1; R. v. Roberts (1913) 9 CAR 189 Raphael Ariche v. State (1993) 6 NWLR (Pt.302) 752. The facts to be relied upon for conviction must be consistent, cogent and must irresistibly lead to guilt of the accused.    "</p> <p>Further in the case of Clark v State (1986) 4 NWLR (Pt. 35) 381 @ 394H Kolawale JCA delivering the lead judgment observed:<br />  <br /> "What then is the nature of evidence required in a case of conspiracy of this kind? Generally, it may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and the person charged be also proved to have been engaged in it, I think it is well recognized in law that it is not necessary that it should be proved that the appellants met to concoct the scheme which led to the theft of the subject aircraft    <br /> I believe that the essential ingredient of the offence of conspiracy or the gist of the offence lies in the bare engagement and association to do an unlawful thing which is contrary to or forbidden by law, whether that thing be criminal or not, whether or not the accused persons had knowledge of its unlawfulness. It is of course necessary to constitute the offence that there should be a criminal purpose common to all the conspirators. (See R. v. Clayton (1943) 33 Cr App.R 113)"</p> <p>Did the accused persons conspire among themselves to sell dangerous drugs to wit My Pikin Baby Teething Mixture to Roca Pharmacy? The evidence did not disclose any such agreement. Can an inference of such an agreement be drawn from the evidence led in this case? The actual reasoning of the lower court in reaching its judgment is at pages 365 - 369 of the printed record. The Court did not evaluate the evidence led by each side of the divide on the matter of conspiracy before convicting the accused persons on count 3. Was there evidence from which a criminal purpose common to the appellant and his co-accused can be inferred? There does not in my humble view appear to be any evidence of complicity or agreement between the appellant and his co-accused persons to sell dangerous drug to Roca Pharmacy or any other person. As rightly submitted by learned counsel for the Appellant, PWl's evidence was that a school certificate holder purchased a keg of Diethylene Glycol wrongly labeled as Propylene-Glycol. This is what led to the quagmire the appellant and his co-accused found themselves in. It cannot be said that they conspired to buy the contaminated chemical. Yes, there may have been negligence in allowing a school certificate holder to purchase from the street instead of from a reputable company. There may have been negligence in not having the necessary materials to carry out proper test of raw materials and finished product. The evidence of PW1 and PW2 with respect to their visit of 25/11/08 may have shown a great deal of laxity and failure to follow procedure to ensure safety of drugs manufactured by the company. All these do not in any way show complicity to sell dangerous drug. They certainly did not deliberately plan, agree or intend what happened to happen. In Oduneye v. State (supra) the Supreme Court per Achike JSC at page 325 A-B observed:</p> <p>"The overt act or omission which evidence conspiracy is the actus reus and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. The gist of the offence is the meeting of the minds of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal act of the parties concerned done in pursuance of the apparent criminal purpose in common between them, and in proof of conspiracy the acts or omissions (and or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. In essence, conspiracy is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose."<br />  <br /> See generally the following cases: KAYOOE V ST A TE (2016) LPELR-SC.83/2012; OKAFOR V THE STATE (2016) LPELR-SC.843/2014: JOHNV. STATE (2016) LPELR-SC.59/2014</p> <p>There is nothing in the evidence adduced by the prosecution from which an inference may be drawn of a meeting of the minds; or the existence of a common design or mutual agreement by the appellant and his co-accused persons to sell dangerous drug to ROCA Pharmacy or any other person. The Appellant and his co-accused who are the Quality Assurance Manager and General Manager/Production Pharmacist of the 3rd Accused Barewa Pharmaceutical Ltd were negligent bothering on recklessness given their wealth of experience in drug production and knowledge of the danger to the health of consumers if mistakes are made. The evidence of PW1 and PW2 chronicled the lapses noted during their visit to the factory premises on 25/11/08 which lapses were confirmed by the appellant in Exhibit 01, his statement to the Police. Therein he stated:</p> <p>“The company has written standard Operation Procedure for all raw materials including Propylene Glycol testing such as identification tests and solubility. But other tests that could differentiate it from other materials such as boiling point and other tests could not be carried out due to lack of reagent. TLC is performed on propylene glycol but because of lack of ammonium hydroxide it could not be standardized, thus not documented. The laboratory is not adequately equipped for the test of contamination and other tests    "</p> <p>None of the evidence disclosed any meeting of the mind of the appellant and his co-accused to sell dangerous drug to Roca pharmacy. Indeed the evidence contradicts the theory of a conspiracy. The learned trial judge was consequently wrong to have convicted the appellant and his co-accused on count 3 of the charge.</p> <p>Learned counsel for the appellant complained that the learned trial judge failed to consider the evidence of DWI but rather relied heavily on his unsworn statement to the police. The unsworn testimony of DWI is almost in the nature of a confession. No objection was raised to its admissibility at the time it was tendered as an exhibit. DWI did not disclaim the statement in his oral evidence in court. But he made statements on oath which contradicted his statement to the police. For example, in his statement to the police, he stated plainly that the laboratory was not adequately equipped for tests of contamination and that because of inadequate supplies; they could not guarantee the quality of both raw materials and the finished product My Pikin". In his oral evidence in court, DWI backpedalled and recanted from these confessional statements. The fact that an accused has retracted a confessional statement does not mean that the court cannot act on it. Before a conviction can be properly founded on a retracted statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Ubierho v. The State (2005) 5 NWLR (Pt. 919) 644.The evidence of PW1 and PW2 on their visit to the factory supported the unsworn statement to the police. The learned trial judge was right in acting on the confessional statement. I am of the firm view that the evidence adduced by the prosecution even without the unsworn statement and oral evidence of DWI was credible enough to support the conviction of the Appellant on count 4. Subject to the setting aside of the judgment of the lower court on the count of conspiracy, Issue 2 is resolved against the Appellant.<br />  <br /> On whether the sentence of seven years imprisonment on count 4 was justified, the general rule is that sentencing is a matter completely at the discretion of the trial court provided the discretion is exercised judicially and judiciously within the law. An appellate court consequently will not interfere with the exercise of discretion by the lower court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle. See the case of Omokuwajo v. FRN (2013) LPELR-20184(SC). Learned counsel for the Appellant has raised no valid point as to why we should interfere with the lower court's discretion in imposing a sentence of seven years on count 4. The fact that the appellant is a first offender may be one of the reasons taken into consideration by the lower court in the exercise of its discretion to impose the sentence of 7 years instead of the maximum of 10 years. We find no reason whatsoever to interfere with the lower court's exercise of discretion in imposing a sentence of seven years with respect to count 4.</p> <p>In the final result, this appeal succeeds in part. The conviction and sentence of the Appellant on count 3 is hereby set aside. The conviction and sentence of the appellant on count 4 is affirmed.</p> <p>YARGATA BYENCHIT NIMPAR I had the privilege of reading in draft the judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I agree with the reasoning and conclusions arrived at in the judgment.<br /> The issues raised in this appeal boils down to majorly evaluation of evidence. The Appellant sought to raise a lot of contradictions and loopholes in the case of the Respondent. For example, he raised doubts on the source of the product samples with Batch No. 02008. However, the fact still remains that ROCA Pharmacy acted on the instructions of the Appellant when it went to retrieve the drug from the wholesalers it supplied to. Since the Appellant did not prove any other fact to the contrary, neither was the testimony of PW4 discredited during trial, then, there is a presumption of truth in that fact. See the case of EGHAREVBA v. STATE (2016) LPELR - 40029 (SC) which states thus:</p> <p> "Now, what is proof beyond reasonable doubt? The answer is provided in the case of K.GOPAL REDDING V. STATE OF AP AIR 1979 SC 387 wherein the Indian Supreme Court held, inter alia: "A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons." More so, it is of no consequence that the investigator, PW5 did not go further into investigating the various deaths allegedly caused by the product.<br />  <br /> The Appellant was only charged with manufacturing and distributing an adulterated drug and not causing death and consequently, investigations which bordered on whether the drugs manufactured and distributed by the Appellant were adulterated is sufficient for the purpose. The fact that drugs distributed and sold contained chemicals dangerous for human consumption is bad enough. Death must not be proved.</p> <p> As to the credibility of the witness PW6, who testified on the conduct of the sample analysis, there is a presumption of regularity in the manner of the sampling besides the Appellant did not raise any evidence to the contrary. It was also not necessary for the forensic expert, who analysed the drugs, to come to Court, in person, to tender the document for it to be admitted. What governs admissibility is relevance, the fact that the document had been pleaded and is properly tendered in the correct form and by the person it should be produced. While it is quite settled that it is the maker of a document that should tender the document in any legal proceedings in court, this is not the case here. The witness who tendered the report in this case was also a signatory to the report and this is sufficient to enable him tender such document in court. The contention as to hearsay evidence is not tenable, see IFEANYI CHIYENUM BLESSING V. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR - 9835(CA). Besides, the testimony by an officer in charge of a laboratory established by appropriate authority may be taken as sufficient evidence of facts stated in it. This position was clearly stated in the case of IFEANYI CHIYENUM BLESSING V. FEDERAL REPUBLIC OF NIGERIA (SUPRA) as follows: "By section 55 (1) (2) and (3) of the Evidence Act, 2011; (1) "Either party to the proceeding in any Criminal case may produce a Certificate signed by the Government pharmacist, the deputy Government  pharmacist, an Assistant Government pharmacist, a Government Pathologist or entomologist or the Accountant - General, or any other pharmacist so specified by the Government pharmacist of the Federation or of a state, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State or any accountant specified by the Accountant General of the Federation or of a state (whether any such officer is by that or any title in the service of the state of the Federal Government), and the production; of any such certificate may be taken as sufficient evidence of the facts stated in it (2) Notwithstanding subsection (1) of this section, any certificate issued and produced by any, officer in charge of any laboratory established by appropriate authority may be taken as sufficient evidence of facts stated in it" In any case, when an official act is shown to have been done in a manner substantially regular, it is presumed that all formal requisites for its validity were complied with. The presumption is rebuttable only by contrary evidence. The onus is therefore on the party alleging the contrary to rebut this presumption of regularity which enures in favour of the plaintiff. See NWACHUKWU v. THE STATE (2002) 12 NWLR [pt.782] 543, HORSFALL v. AMAIZU &amp; ORS(2013)  LPELR-22874(CA). The Appellant failed to tender any evidence to the contrary. And may I also say that the submissions of the Appellant that establishing the integrity of the unbroken chain is a pre - condition to establishing the offence is not backed up by any authority.<br />  <br /> In my opinion the certificate of test analysis in respect of the drug is sufficient to satisfy the burden of proof required by law under Section 138 (1) of the Evidence Act, see FEDERAL REPUBLIC OF NIGERIA V. JOSEPH DANIEL (2011) LPELR - 4152(CA). The certificate having been tendered and admitted in evidence can be relied upon by the court to determine the content and quality of the sample.<br /> The testimony as to the metallic screw cap being different from the original plastic cap or as to the contradictions of the name (whether referred to as "My Pikin Paracetamol" or "My Pikin Teething mixture") is not sufficient to discharge the accused. The issues raised by the Appellant as to his unconsidered testimony do not help his case. The fact still remains that it was the sample manufactured by the Appellant that was tested but found to contain the contaminant. The case of UWAGBOE V. STATE (2008) ALL FWLR (PT. 419) 425 AT 432 - 433 (SC) states as follows:</p> <p>"Two pieces of evidence contradict one another when they are by themselves inconsistent A discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says, or contains some minor differences in details. Minor discrepancies between a previous written statement and subsequent oral testimony do not destroy the credibility of witness."<br /> The Appellant argued that the intent of conspiracy and selling of the drug was not proved. As to the issue raised on the proof of conspiracy, where the count of conspiracy is based on the same facts as those of the substantive offence, courts are enjoined to deal with the substantive charge first. This is logical because should the substantive charge be unproven, there would indeed be no conspiracy to commit the substantive offence, see<br />  <br /> ADELARIN LATEEF &amp; ORS. v. THE FEDERAL REPUBLIC OF NIGERIA (2010) LPELR - 9144(CA)<br /> Now to the substantive offence; S. 1 (18) (a) (ii) of the Miscellaneous Offences Act for which the Appellant were convicted states as follows: <br /> "Any person who-<br /> deals in, sells, offers for sale or otherwise exposes for sale any petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product which is not of the quality, substance, nature or efficacy expected of the product or preparation, or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in any way been rendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten years'" The ingredients of the offence which must be established are that: 1. Proof that the drug was contaminated 2 Proof that the Appellant sold the adulterated drug 3. Proof that the product is not of the quality, expected of the product or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in any way been rendered or has become noxious, dangerous or unfit<br /> 'Intention to sell the drug' is not an ingredient of the substantive offence for which the Appellants were convicted. I find that the three ingredients have been sufficiently established and that the trial court rightly convicted the Appellants on count 4.<br />  <br /> Now to the offence of conspiracy. My learned brother, IYIZOBA, JCA has aptly conveyed my exact thoughts on this issue. I need not say more.<br /> On the whole, I agree that the offence of conspiracy in count 3 was not established and the conviction and sentence on count 3 is hereby set aside. The appeal succeeds in part. However, the effect of this decision will have no effect on the sentencing since the 7 years sentence on the </p> <p><u><strong>JAMILU YAMMAMA TUKUR JCA.</strong></u> I had the priviledge of read in draft the lead judgment just delivered by learned brother Chinwe Eugenie Iyizoba JCA.<br /> I agree with the reasoning and conclusion in the judgment. I also allow the appeal in part I abide by the consequential orders made therein.</p> </div> </div> <p><strong>Counsel</strong></p> <p>O.E.L. IDEH ESQ. with O. AJETUNMOBI ESQ. FOR THE APPELLANT<br />  <br /> -CHIEF MIKE OZEKHOME SAN with JEFF KADIRE ESQ., CHARLES OMOSOHWOFE ESQ., CHIMA ONUIGBO ESQ. AND KAMAL FAWEHINMI ESQ. for the RESPONDENT</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-9f9afd4824fabe4397fe0cfc96119897a3104c5b1a16a14a2348b0264b419edf"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong></div> <div>?</div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>EGBELE AUSTIN EROMOSELE</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>FEDERAL REPUBLIC OF NIGERIA</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (Delivered By CHINWE EUGENIA IYIZOBA, JCA)</strong><br /> The appellant and two others were arraigned in the lower court on an amended charge which read as follows:</p> <p>COUNT ONE:</p> <p>That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 manufactured an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE AND YOU THEREBY COMMITED AN OFFENCE CONTRARY TO Section 1(a) of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.</p> <p>COUNT TWO<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 distributed an adulterated drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos and you thereby committed an offence contrary to Section 1(a) of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation of Nigeria, 2004 and punishable under Section 3 of the same Act.</p> <p>COUNT THREE<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 did conspire among yourselves to sell dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road,</p> <p>Agege, Lagos which did not represent the quality you represented it to be and you thereby committed an offence contrary to Section 1(18) (a) (ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(ii); 1(18) (b)(ii) and 3 of the same Act.</p> <p>COUNT FOUR:<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 sold dangerous drug to wit: MY PIKIN BABY TEETHING MIXTURE to Roca Pharmacy of 34 Balogun Road, Agege, Lagos which did not represent the quality you represented it to be and you thereby committed an offence contrary to Section 1(18) (a) (ii) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(ii); 1(18) (b)(ii) and 3 of the same Act.</p> <p>COUNT FIVE:<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Barewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 did conspire among yourselves to adulterate a drug to wit: MY PIKIN BABY TEETHING MIXTURE and you thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a) (i) and 3 of the same Act.</p> <p>COUNT SIX:<br /> That you Adeyemo Abiodun, Egbeie Austine Eromosele and Sarewa Pharmaceutical Limited of 1-5 Olugbo Close, Shasha Road Akowonjo, Lagos State within the jurisdiction of the Honourable court on or about October, 2008 adulterated a drug to wit: MY PIKIN BABY TEETHING MIXTURE so as to change materially the quality or efficacy of the same without notice to the purchasers, knowing that same will be sold as a drug and you thereby committed an offence contrary to Section 1(18) (a) (i) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(18) (a)(i) and 3 of the same Act.</p> <p>Trial proceeded before Okeke J of the Federal High Court, Lagos Division. The Prosecution called seven witnesses. The Appellant as the 2nd accused person testified as DW1 and is the only witness for the Defence; exhibits were tendered and admitted in evidence. Final addresses were filed and duly adopted. In its judgment delivered on 17/05/13, the lower Court discharged and acquitted the Appellant and the two other accused persons on Counts 1, 2, 5 and 6 but convicted them on Counts 3 and 4. They were sentenced to seven years imprisonment on each of counts 3 and 4, the terms to run concurrently. The Court ordered that the assets of the 3rd accused Barewa Pharmaceuticals Ltd be wound up and forfeited to the Federal Government of Nigeria.</p> <p>Dissatisfied with the judgment, the Appellant and his co-accused filed separate notices of appeal on 3/7/13. It is pertinent at this point to mention that judgment had earlier been delivered by this court in this appeal on the 31st day of December, 2013 coram S.D. Bage, S.J Ikyegh and Tijjani Abubakar JJCA affirming the judgment of the lower court. All the Appellants appealed to the Supreme Court. It turned out that the judgment was based on an abandoned Notice of Appeal filed on 26/6/13 instead of the valid Notice of Appeal filed on 3/7/13. The Supreme Court consequently declared the judgment a nullity and remitted the appeal back to this Court for hearing de novo on the valid Notice of Appeal filed on 3/7/13.</p> <p>The Notice of appeal of 3/7/13 has 13 grounds of appeal. Briefs of argument were filed and exchanged. The Appellant's brief of argument da-fed and filed 5/7/13 was settled by O.E.L Ideh Esq. From the 13 grounds of appeal they distilled the following 7 issues for determination.</p> <p>1.Whether the Appellant can be convicted in the absence of strict scientific evidence that the drug "My Pikin Baby Teething Mixture" was dangerous: Ground 10.<br /> 2.Whether the learned trial Judge was right in convicting the Appellant on the basis of unsubstantiated, unreliable and contradictory evidence. Grounds 3, 5, 6, 7 and 9</p> <p>3.Whether the learned trial Judge was right in failing to consider and evaluate the evidence of the defence tendered by DWI. Grounds I and 2<br /> 4.Whether the learned trial Judge was right in failing to consider relevant evidence that could establish the innocence of the Appellants. Ground 4<br /> 5.Whether the iearned trial Judge was right in convicting and sentencing the Appellant upon a finding of failure to follow proper test procedures when the charge before the Court was for manufacture and sale of adulterated/dangerous drugs. Grounds 8,11, and 14<br /> 6.Whether there was any evidence of conspiracy to sell dangerous drugs. Ground 12<br /> 7.Whether the sentence of seven years imprisonment against the Appellant was justif ied in the circumstance of the case.Ground 13</p> <p>The Respondent's brief of argument dated 28/10/13 and filed on 29/10/13 was settled by Charles Omosohwofa Esq of Chief Mike Ozekhome SAN's Chambers and therein they formulated three issues for determination as follows:</p> <p>1.Whether the lower Court made a finding, based on scientific evidence that the drug "My Pikin Baby Teething Mixture" with Batch No 02008 was dangerous which therefore support the conviction of the appellants.<br /> 2.Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.<br /> 3.Whether the trial Court was right in convicting the 3rd Appellant and consequently ordering that it be wound up and its asset forfeited to the Federal Republic of Nigeria.<br />  <br /> The Appellant's Reply brief is dated 7/11/13 and filed on 8/11/13.</p> <p>At the hearing of the appeal on 13/4/16, O.E.L. Ideh Esq learned counsel for the appellant in adopting the Appellant's briefs urged the Court to allow the appeal while Chief Mike Ozekhome SAN for the Respondent in adopting the Respondent's brief urged us to dismiss the appeal.</p> <p>I shall in the determination of this appeal adopt the Respondent's issues 1 and 2 and the Appellant's issue 7 as the 3rd issue. Respondent's issue 3 is not relevant in the instant appeal. The Appellant's issue one is basically same as the Respondent's issue one. Appellant's issues 2, 3, 4, 5 and 6 will be subsumed under the Respondent's issue 2. Appellant's issue 7 will be the 3rd issue.</p> <p>APPELLANTS ARGUMENTS:</p> <p>ISSUE ONE;</p> <p>Whether the lower Court made a finding, based on scientific evidence that the drug "My Pikin Baby Teething Mixture" with Batch No 02008 was dangerous which therefore support the conviction of the appellants.</p> <p>Learned counsel for the appellant on their issue one, relying on the cases of Adisa v. The State (1991)1 NWLR (Pt.168) 490 at 504. paras. G-H; 510. paras.B-O; Inspector-General of Police v. Oguntade (1971) 2 All N.L.R. 11; Yanor v. State CI965) NMLR 337 and Akinfe v. State (1988)3 NWLR (Pt.85) 729 submitted that the burden  is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt; that the burden does not shift and where there is any doubt in the evidential chain of proof as to the guilt of the accused person, the trial Judge is under a duty to hold that the Prosecution has not proved its case and to discharge and acquit the accused person. Counsel submitted that in the case of scientific evidence the task of the prosecution is even more onerous. He argued that the Prosecution must lead strict scientific evidence that the drug "My Pikin Baby Teething Mixture" was indeed dangerous — as that is the offence with which the Appellant was charged; and that no other type of evidence; not even a confession will suffice. He relied on Federal Republic of Nigeria v. Daniel (2012) All FWLR (Pt. 627) 687.</p> <p>Learned counsel further submitted that the Prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused person's possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court. In other words, the Prosecution must guarantee the integrity of the entire process in order to secure a conviction. He cited Sunmola Ishola v. The State NMLR (1) 1969; CAW/25/67; Sunday Sosimi v. Commissioner of Police reported in (1975) (6/CCHCJ 881 at 883. Learned counsel submitted that the case against the Appellant (and other accused persons) was that the drug "My Pikin Baby Teething Mixture" (Batch 02008) manufactured by the accused persons, was adulterated/contaminated with Diethylene Glycol; the alleged adulterant and that the drug was dangerous. Counsel argued that in convicting the Appellant (and the other accused persons), the lower Court placed reliance on the evidence of PW4, PW5, PW6 and PW7 without analyzing same. He set out the evidence of PW4 and submitted that the testimony was fraught with legion of unexplained gaps and as such, most unreliable to use as a basis for the conviction of the accused persons on Counts 3 and 4 of the amended Charge. Counsel submitted that:</p> <p>i. There was no evidence showing that what PW4 collected from "wholesalers around" was indeed what he had actually sold to them. The "wholesalers around" could probably have purchased the product from sources other than Roca Pharmacy Limited (PW4's company);</p> <p>ii. Also, there was no scintilla of evidence as to the identity of these "wholesalers around" from whom PW4 had retrieved various Batches of "My Pikin Baby Teething Mixture"; their names, their addresses etc.</p> <p>iii. More importantly, there was no Collection identification and sampling of the drugs against the "wholesalers around" to whom Roca had sold the drugs. In other words, PW4 could have collected any drug from anywhere and simply claimed that it was the same drug he sold to the "wholesalers around".</p> <p>Counsel submitted that the Police was under a duty to investigate the chain between Roca Pharmacy and the "wholesalers around" and in return, between "wholesalers around" and Roca Pharmacy; and that the "wholesalers around" ought to have been called to give evidence of what Roca Pharmacy sold to them and what in turn Roca Pharmacy collected from them.</p> <p>Counsel impugned the evidence of PW5 on the basis that he admitted that no investigation was carried out on receiving information about the death of some infants after taking the suspected adulterated product. Counsel contended that PW5 confirmed receiving the samples on 28/11/08 but the packaging and sampling was not done until 14/01/09; 44 days after the products were received without any explanation for the delay. This he submitted undermined the integrity of the entire process and raised doubt as to whether it is the same sample that was taken or collected from the accused person that was eventually analyzed.</p> <p>Learned counsel complained that PW6 did not conduct the analysis himself and could not say how the product arrived in the laboratory of NAFDAC at Oshodi for further analysis. He contended that the evidence given by PW6 was hearsay as he admitted under cross-examination that he was not responsible for the conduct of the laboratory analysis but merely signed the laboratory report Exhibit T when it was forwarded to him for signing. Counsel submitted that one Adekunle Segun Olawale who conducted the analysis was not called to give evidence and no explanation was given for the failure to call him. He also found fault with the evidence of PW7 Anikoh Musa Ibrahim, an analyst in the Oshodi Laboratory of NAFDAC. He had confirmed the presence of a contaminant called Diethylene glycol in the sample of "My Pikin baby teething Mixture Syrup Batch 02008 but he was not sure as to who received the products in his laboratory and what was in fact received. Counsel submitted that this is a fundamental gap in the case of the prosecution. He further contended that the lower Court erred in law in finding the Appellant (and other accused persons) guilty on Counts 3 and 4 on the strength of the confirmation by the Appellant (2nd accused person) of the five cartons of “My Pikin Baby Teething Mixture" (Batch 02008) recovered from Roca Pharmacy. Counsel submitted that the prosecution did not achieve even the minimum standard of proof that the drug "My Pikin Baby Teething Mixture" was dangerous and ought not to have convicted the appellant on counts 3 and 4.<br />  <br /> ISSUE TWO:</p> <p>Whether the argument canvassed vis-a-vis the evidence adduced by the Respondent was not credible enough to support the conviction of the Appellants.</p> <p>On their issue two, whether the learned trial Judge was right in convicting the Appellants on the basis of unsubstantiated, unreliable and contradictory evidence, learned counsel pointed out the contradictions in the evidence of the prosecution witnesses and submitted that the learned trial Judge ought to have considered these contradictions and resolved same in favour of the Appellant. Counsel referred to the cases of Harb v F.R.N (2008) ALL FWLR (Pt 430) 705 and Ikemson v. State (1989) 3 NWLR (PL 110 455 at 466.</p> <p>On issue three, whether the learned trial Judge was right in failing to consider and evaluate the evidence of the defence tendered by DWI. Counsel opined that the learned trial judge failed to consider and evaluate the evidence led by DWI; the only witness for the defence. He submitted that his lordship rather referred to and relied wholly upon the unsworn statement of DWI; which said statement; though tendered as Exhibit 01 by PW5 during his examination in chief, did not in itself offer evidence of its truth for the purpose of arriving at the conclusion reached by the learned trial Judge. Counsel referred to the case of Tegwonor v State (2008) 1 NWLR (Pt. 1069) 630 at 664 where the court held:</p> <p>“A trial court must review all the evidence before it. it is the totality of the evidence that has to be evaluated and assessed together. A trial court cannot pick and choose the evidence to be assessed. Thus a proper evaluation of evidence is absolutely important, for in order to determine a case and come to a just conclusion the trial Judge must assess and appraise all evidence before him."</p> <p>Counsel submitted that the failure of the learned trial Judge to consider the evidence and evaluate same occasioned a grave miscarriage of justice.</p> <p>On issue 4, whether the learned trial Judge was right in failing to consider relevant evidence that could establish the innocence of the Appellants, learned counsel submitted that the lower court failed to consider relevant evidence that could have disproved the guilt of the accused. For example, failure of PW2 to obtain and tender in evidence the report of the analysis of the sample of "My Pikin Baby Teething Mixture" which allegedly killed the child of one Njoku Chidi Bright; failure to consider the effect of the 44 days delay in conducting the sampling procedure on the suspected adulterated products already in the custody of NAFDAC; failure to consider the import of Exhibit CI &amp; C2 (Certified True Copy of Punch Newspaper cut-out dated November 26th 2008. Learned counsel submitted that the learned trial Judge erred in finding the Appellant guilty on counts 3 &amp; 4 when there was such a gaping hole in the investigation of the case.</p> <p>On issue 5, learned counsel submitted that the lower court erred in convicting and sentencing the Appellant upon a finding of failure to follow proper test procedures when the charge before the Court was for manufacture and sale of adulterated/dangerous drugs. Counsel opined that the material charge before the Court (as in Counts 3 and 4 of the amended Charge) borders on conspiracy to sell and selling dangerous drug; and that the Appellant (and the other accused persons) were never charged with failing  to   follow  test   procedures  or  manufacturing   below certain quality/standard. Counsel argued that the Charge upon which the plea of the Appellant (and the other accused persons) was taken and upon which they were tried is at variance with the offence of failing to follow test procedure or manufacturing drug below certain quality.</p> <p>On their issue 6 whether there was any evidence of conspiracy to sell dangerous drugs, counsel submitted that in order to establish the offence of conspiracy, the apex Court held in numerous cases, Abdullah/' v. The State (2008)17 NWLR (Pt.1115)203 at 221, paras. F-H; Kaza v. The State (2008)7 NWLR (Pt. 1085)125, Ishola v. The State (1972)10 S. C. 63 at 76-77; Haruna v. The State (1972) 8-9 S.C. 174; Oladejo v. State (1994)6 NWLR (Pt. 348)101 at 127, 6badamosi &amp; Others v. The State (1991)6 NWLR (Pt. 196)182 that it is the duty of the Prosecution to adduce evidence to establish the following ingredients:</p> <p>i.An agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means; and<br /> ii.That an illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.</p> <p>Counsel submitted that proof of conspiracy is generally a matter of inference. He opined that there was no evidence of complicity, or agreement between the Appellant and the other accused persons to sell dangerous drug to Roca Pharmacy or any other person. Counsel submitted that the learned trial Judge misdirected himself gravely in finding the accused persons guilty of conspiracy when the prosecution did not even attempt to lead evidence to show conspiracy.<br />  <br /> On their issue 7, whether the sentence of seven years imprisonment against the Appellant was justified in the circumstance of the case, learned counsel submitted that even if the conviction of the appellant was valid, that the sentence of seven years imprisonment was excessive because the Appellant was a first time offender and the prosecution led no evidence to show that the Appellant had the mens rea to commit the offence. He posited that the learned trial Judge should have exercised his discretion judicially and judiciously to impose a lesser sentence rather than a sentence that was close to the maximum penalty of ten years imprisonment for each offence.</p> <p>Counsel finally urged us to resolve all the issues in favour of the Appellant and reverse the decision of the lower Court with an order of discharge and acquittal.</p> <p>RESPONDENTS ARGUMENTS:</p> <p>On issue one, learned senior counsel for the Respondent submitted that some of the arguments and complaints by the Appellant are completely obtuse, inflated and totally unrelated to the issues as to whether scientific evidence was adduced to prove that the drug 'My Pikin batch 02008' was dangerous. He submitted that there was clear evidence based on the certificates emanating from NAFDAC laboratory report on test carried out on samples "of batch 02008 received from the -3rd Convict (Barewa Pharmaceutical Ltd) through the Establishment Inspectorate Department of NAFDAC (EID) on the 25th November 2008 that the sample was contaminated with the contaminant Diethylene Glycol.<br />  <br /> Learned senior counsel referred to Sections 55 (1) and (2) Evidence Act, 2011 which allows the production of a certificate by certain Government officials to be taken as sufficient evidence of facts stated therein. Counsel submitted that it was established in evidence that the Appellants lacked the capacity to conduct the necessary tests to determine the wholesomeness of its raw material or its finished product. On the other hand, it was not in dispute that the Respondent has the capacity to conduct the test on the samples of "My Pikin" which on the basis of the findings reported on the certificate issued by the appropriate officers of the Respondent, showed conclusively that the product batch 02008 was contaminated with Diethylene Glycol. Counsel submitted that PW1 a qualified and registered pharmacist testified that Diethylene Glycol is very poisonous and that this piece of scientific evidence was never rebutted by the Appellants and DWI who is a Chemist and the Quality Assurance Officer of the Appellants at the time. Counsel further submitted that once it is shown that Diethylene Glycol is present in a drug as a contaminant; such drug is without more unwholesome and very dangerous as in the case with Batch 02008.</p> <p>Learned senior counsel submitted that the Appellant and the two other accused persons, now convicts made statements and were present when samples were packaged and sent to the laboratory and that evidence was led by the Respondent to show the various tests that were carried out with results which culminated in the certificate issued and now relied upon. With the certificate having been tendered and admitted in evidence, the burden shifted to the Appellants to adduce evidence to discredit the certificate. Counsel submitted that they failed to discharge the evidential burden. Counsel urged us to resolve issue one in the Respondent's favour, and to hold that the Respondent has proved that My Pikin Baby Teething Mixture batch no. 02008 manufactured by the accused persons was adulterated/ contaminated and/or dangerous.</p> <p>On issue 2, whether the evidence proffered by the respondent was credible enough to support the conviction of the Appellants and the other convicts, learned senior counsel for the Respondent submitted that the argument proffered by the Appellant as regards conflicts in the evidence of the prosecution witnesses is misconceived. Learned silk posited that it was clear from the evidence adduced that all the initial samples recovered by PW2 were sent to the Central Drug Control Laboratory of NAFDAC for test; and that there is evidence that the investigation was later handed over to the team of PW3 and PW5 together with the 5 cartoons of batch 02008 recovered from Roca Pharmacy. He submitted that PW5 testified that he received the 5 cartoons from the team of PW2 which was the correct position and PW3 said she dispatched one set of samples to PW5 to be kept as exhibit after handing over one set to the accused persons (convicts) and the third set forwarded to the laboratory. He submitted that PW2 did not say she sent the same sample to NAFDAC. Learned silk urged us to discountenance the alleged contradictions. He opined that if there are any contradictions at all, they are inconsequential and cannot affect the culpability of the Appellant. He cited in aid the case of DIBIE V. STATE (2007) 2 NCC 475 AT PAGE 495-496. RATIO 13.</p> <p>On the allegation by the appellant that certain witnesses (receptionist who received the sample at Oshodi laboratory) were not called to give evidence, learned senior counsel submitted that there is no rule of law which imposes an obligation on the prosecution to call a host of witnesses; that all the prosecution is required to do is to call enough material witnesses to prove its case. He cited the cases of OOOFIN BELLO V. THE STATE (1966) 1<br />  <br /> ALL NLR 223 AT 230; SAMUEL AOAJE V THE STATE (1979) 6-9 SC 18 AT PAGE 28; EO. OKONOFUA &amp; ANOR V. THE STATE (1981) 6-7 SC. 1 AT 18; OGOALA V. THE STATE (1991)2 NWLR (PT. 175). 509 AT 527; NWAMBE V. STATE (1995) 3 NWLR (PT.384) pp V 40 7-408 PARAS. E-A.</p> <p>On the Appellants contention that there are discrepancies in the witness statement of PW7 to the Police (exhibit V) and the certificate of laboratory analysis (exhibit U) on what was received (My Pikin Paracetamol Syrup) and the description of the product, Learned senior counsel submitted that these are insignificant discrepancies conceivable within the province of errors in human daily transactions. Counsel submitted that a thorough perusal of exhibits U and V and other evidence before the Court shows that PW7 was referring to My Pikin Baby Teething Mixture and that this was expatiated in his evidence-in chief. Counsel posited that it is common-place knowledge that it is only the same products manufactured by the same company that can share the same brand name, content, size, batch number and NAFDAC registration number and that the particulars disclosed in exhibit U by PW7 are the same as disclosed in exhibit T, save that exhibit T mentioned My Pikin Baby Teething Mixture. Counsel further submitted that it is a matter of fact that My Pikin is a brand name for teething drugs manufactured by Barewa pharmaceutical and that no other pharmaceutical company in Nigeria bears such name as testified to by the appellant as 2nd accused person during his cross-examination.</p> <p>Counsel referring to the case of AKINBISAOE V. STATE (2007)2 NCC PAGES 76 AT 88 RATIO 3, submitted that the exhibits must be considered holistically in their entirety to decipher their real import and effect and not piecemeal as the Appellants did.</p> <p>On issue 3, whether the sentence of seven years imprisonment imposed on the Appellant was justified in the circumstance of the case, counsel submitted that the issue of the imposition of a sentence within the bounds provided is purely within the discretionary power of the Court. Counsel argued that there is nowhere In the miscellaneous Offences Act where it is provided that the trial judge should impose a sentence below what the Act prescribed. He posited that the fact that the Appellant has not been convicted of any offence prior to that by the trial Court is not in itself, a requirement of the law for a derogation from the provision of law regarding a crime for which the Appellants has been found guilty by the trial Court. Counsel submitted that it is all within the discretion of the trial court and that the discretion must be exercised judicially and judiciously within the law.</p> <p>On the conviction of the appellant on count 3 learned counsel submitted that the Respondent led evidence to show that the Appellant and his co-accused manufactured My Pikin Teething Mixture during the time they all knew they had no materials in their laboratory to guarantee the safety and/or quality of the product and also purchased unsafe Propylene Glycol from road side retailers despite their wealth of experience in drugs production and from such circumstantial evidence the Court rightly inferred conspiracy. Learned counsel urged the court in inferring conspiracy from the circumstances of this case, to lay particular emphasis on the findings of PW1 A 2 on their visit of 25th day of November, 2008, to the premises of the accused persons and the interrogations by PW3 as stated in both their oral testimonies and written statements (Exhibits ‘E' &amp; H) as well as the confessional statement of the 2nd accused person (Exhibit ‘01’).<br />  <br /> In respect of count 4, counsel submitted that the Respondent led evidence to prove beyond reasonable doubt that the Appellants sold My Pikin Baby Teething Mixture having changed materially the quality, substance or efficacy of the drug and/or rendered same dangerous or unfit by reason of the adulteration of the product. Learned senior counsel submitted that the Respondent succeeded in linking the accused persons with the six-count charge before the lower court. He submitted that the 1st accused person is the General Manager/Production Pharmacist of the 3rd accused person while the 2nd accused person is the Quality Assurance Manager for the 3rd accused person. He opined that the Appellant and his two co-accused are guilty of the offences for which they have been charged and convicted by reason of Section 3(2) of the Counterfeit and Fake Drugs and unwholesome Processed Foods (Miscellaneous provisions) Act Cap C34 Laws of the Federation of Nigeria 2004 as well as Sections 3 (l) of the Miscellaneous Offence Act, Cap. M17 LFN, 2004.</p> <p>Counsel submitted that the prosecution proved its case beyond reasonable doubt. He submitted that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt relying on STATE V. ABIBANGBE (2007) 2 NCC 628 AT 687, RATIO 4 and OIBIE V. STATE (2007) 2 NWLR 475 AT PGS 495-496.</p> <p>Learned senior counsel urged us to dismiss the appeal and uphold the judgment of the trial court which convicted the accused persons in counts 3 &amp; 4,</p> <p>RESOLUTION:<br /> It is surely stating the obvious to say that the burden is on the Prosecution to prove the guilt of the accused person beyond reasonable doubt. In the instant case, the Prosecution must lead clear scientific evidence that the drug "My Pikin Baby Teething Mixture" was indeed dangerous; and that there was a conspiracy by the Appellant and his co-accused to sell the dangerous drug to Roca Pharmacy. Even where there is a confession by an accused person, it does not dispense with the requirement of scientific proof of the offence charged. See Ishola v. The State NMLR (1) 1969. As rightly submitted by learned senior counsel for the Respondent, proof beyond reasonable doubt does not however mean proof beyond the shadow of doubt. Learned counsel for the Appellant is also right that scientific proof means that the Prosecution must establish an unbroken link in the chain beginning from the collection of the alleged offensive substance or article from the accused person's possession to the point of scientific/laboratory analysis and to the point of presenting the result of the analysis in Court. The integrity of the entire process must be guaranteed. In Ishola v. The State NMLR (t) 1969 the court observed:</p> <p>"it is of the utmost importance then that the plant found in the possession of an accused person is the actual one that has been analyzed by the Chemist. The prosecution therefore has a duty to prove that once the plant is taken from the possession of the accused, every possibility whatsoever of its being tampered with or its being substituted with another has been excluded. Once an opportunity exists for this, the chain snaps and a reasonable doubt would exist as to whether the plant that was taken from the possession of the accused is the one that has been analyzed...."<br />  <br /> It must however be noted that the drug in question is the product of the 3rd accused, Barewa Pharmaceutical Ltd. The company alone manufactures products with the brand name "My Pikin" duly registered with NAFDAC. No other pharmaceutical company in Nigeria manufactures products bearing that brand name. The Appellant who gave evidence as DWI under cross-examination at page 238 of the Record observed:</p> <p>"My Pikin is a brand name for teething drugs produced by Barewa Pharmaceutical Ltd NAFDAC conducted the preregistration inspection of Barewa Pharmaceutical premises for the production of my Pikin Baby Teething Mixture between 2005 and 2006."<br /> It can consequently be rightly assumed that any of the products in circulation in Nigeria are the ones manufactured by the 3rd accused. It may not be out of place to recapture the facts giving rise to this case for better appreciation of its peculiarities. The facts can be taken from the evidence of PW1 Mrs Hauwa Keri, a Pharmacist and at the time of her evidence Director of Establishment Inspection NAFDAC. Before then she was the Director of Narcotics and Controlled substances NAFDAC. Her evidence is at pages 134 - 151 of the printed records:</p> <p>Sometime in the middle of November, 2008, I received a telephone call from the Chief Pharmacist of Ahmadu Bello University Teaching Hospital Zaria reporting to me that some children died after taking a syrup called "My Pikin". I immediately reported the matter to the then Director-General Prof. Dora Akunyili who instructed me to investigate the case. I set up a team of NAFDAC inspectors who went to ABUTH Zaria and investigated the case. They came back and reported to me that they had interviewed the Chief Pharmacist Alhaji Salisu Ibrahim. They also interviewed the Head of Pediatrics' Department Dr.Malro Bugaje. They also spoke with the Chief Matron of the Hospital. They were able to retrieve the remnants of the syrup from Dr. Bugaje. Preliminary investigation revealed that the drug that was common to all the children that died was "My Pikin' All the children had the same symptom of renal failure characterized by the inability to pass urine. After the receipt of the report, I dispatched two teams - one to the UCH Ibadan and the other to Lagos University Teaching Hospital (LUTH) Lagos. I also asked my officers in Kaduna to purchase random samples of "My Pikin" syrup off the shelf. The random samples were sent to the laboratory together with the remnants from ABUTH and LUTH. With the first result from the laboratory we went to Barewa Pharmaceutical Industries Ltd and sealed it up. I asked all our officers nationwide to mop up all "My Pikin" syrup irrespective of batch, even though the laboratory result was for batch No. 02008. That was because the result indicated contamination with a deadly chemical called Diethylene Glycol (Anti freeze). We also immediately put out a public alert urging the public to stop using "My Pikin" syrup and all brands of paracetamol syrup till further notice. We also made a press statement to heighten public awareness and to forestall further casualties. Barewa Pharmaceutical Industries Ltd was directed to mandate their distributors to withdraw all batches of the syrup in their possession. I then led a team of inspectors to Barewa Pharmaceutical Industries Ltd. Mrs. Titi Owolabi who is the Deputy director In charge of Lagos State Zone and Mrs. Edosa Ogbeide next in command to Mrs. Owolabi were in my team. It was at this visit that we established some facts. First the contaminated batch 02008 was produced around the time that a school certificate holder purchased a keg of that Diethylene Glycol wrongly labeled propylene Glycol. We also established that the Quality Control Officer did not carry out the mandatory Identification test for all the raw material before production as required by law. Even more was the discovery that production manager went ahead to produce batch 02008 with only a verbal clearance from the Quality Control Officer. Several other violations were documented in the final report. At the entry meeting with the management of Barewa Pharmaceutical Industries Ltd we asked the key officers to be at the meeting so that we see their qualifications and their terms of engagement. We also requested to see their documents like batch manufacturing records, quality control release records, purchase orders and store ledger. We also visited the whole factory from receipt to release. I then submitted the report to the Director-General with the recommendation that the case be transferred to the Enforcement Department because of the involvement of illegal chemical marketers."</p> <p>I read carefully the cross-examination of PW1 which is at pages 140 to 151 of the printed record. Her evidence was unchallenged. The genesis of the problems of the Appellant and his co-accused are consequently as set out in the evidence of PW1. With that background information, we can now go on to consider whether the finding of fact by the lower court that the drug "My Pikin Baby Teething Mixture batch 02008 was indeed dangerous can be faulted. It was argued for the Appellant that the lower court in convicting the appellant on counts 3 &amp; 4 relied on the evidence of PW4, PW5, Pw6 and PW7 when their evidence failed to meet the required scientific standard for such conviction. PW4 is one Ezekiel Akerele who was at the relevant time the sales representative of ROCA Pharmacy who went round to retrieve from their customers (wholesalers around) My Pikin Baby Teething mixture in accordance with the directives of Barewa Pharmaceutical Ltd the 3rd accused/convict in their letter Exhibit M. The Appellant had submitted that PW4's testimony:<br />  <br /> "—is fraught with legion. of unexplained gaps and as such, is most unreliable to secure a finding of guilt of the offences in Counts 3 and 4 of the amended Charge. There was no evidence whatsoever led by the Prosecution in respect of a number of essential particulars which would have otherwise made the testimony a reliable one. For example:</p> <p>i.There was no evidence showing that what PW4 collected from "wholesalers around'1f was indeed what he had actually sold to them. The "wholesalers around" could probably have purchased the product from sources other than Roca Pharmacy Limited (PW4's company);<br /> ii.Also, there was no scintilla of evidence as to the identity of these "wholesalers around" from whom PW4 had retrieved various Batches of "My Pikin Baby Teething Mixture"; their names, their addresses etc.<br /> iii. More importantly, there was no collection identification and sampling of the drugs against the "wholesalers around" to whom Roca had sold the drugs. In other words, PW4 could have collected any drug from anywhere and simply claimed that it was the same drug he sold to the "wholesalers around"</p> <p>With the background history of this case as set out above, it is obvious that the Appellant's complaints are without merit. Batch 020O8 of My Pikin is what has been found to be dangerous. Five cartons of batch 02008 were amongst the drugs retrieved by PW4 from wholesalers around to whom they had supplied the drugs, It is obviously unlikely that PW4 will collect what he did not supply and equally unlikely that the wholesalers would release to PW4 goods not purchased from him. There is no reason for a trader to offer up to PW4 drugs not purchased from PVV4. The argument of counsel defies logic and is contrary to common course of human reaction to such a situation. Besides as earlier stated, the drug in question is the product of the 3rd accused, Barewa Pharmaceutical ltd. The company alone manufactures products with the brand name. No other pharmaceutical company in Nigeria manufactures products bearing that brand name. The 3rd Accused/convict knew their distributors and the distributors knew their customers to whom they supply the drugs. Indeed the Appellant and his co-accused especially the 3rd accused Barewa Pharmaceuticals did not deny in their statements or oral evidence that the products were their own. They had identified tine drugs as theirs. The identities of the wholesalers and individual sampling of what was retrieved from them are consequently irrelevant under the circumstances. Appellant's contention is obviously a case of pleading to allow fanciful possibilities deflect the cause of justice. All the drugs retrieved by PW4 had been duly marked and surrendered to NAFDAC. PW3 at page 184 of the record testified as follows:</p> <p>"The Sales representative of ROCA pharmacy made a written statement to the Police and Batch 02008 was sampled again in the presence of superintendent pharmacist, production pharmacist and analyst of Barewa pharmaceutical Ltd. The sample was in triplicate, one set given to the three officers of Barewa Pharmaceutical Ltd. One set was sent to NAFDAC Control Laboratory. The third set was given to the investigating Police officer (IPO) as exhibit'</p> <p>PW5 a Deputy Superintendent of Police attached to Federal Task Force Counterfeit and fake Drugs Police Squad NAFDAC testified that this case was referred to the squad for investigation by Establishment Inspection Directorate NAFDAC which also transferred to them five cartons of suspected contaminated My Pikin Baby Teething mixture. PW5 testified:</p> <p>"Mr.Ezekiel Akerele a sales representative of ROCA Pharmaceutical Ltd of no. 34 Balogun Street Agege, Lagos who is a distributor of Barewa Pharmaceutical Ltd from whom the inspection  Directorate of  NAFDAC  recovered  the alleged contaminated My Pikin Baby teething mixture batch no. 02008 manufactured by Barewa Pharmaceutical Ltd confirmed that the said  pharmaceutical  product   batch   02008   is  among the pharmaceutical product recovered from him. The accused persons were called upon. They came and inspected the products and confirmed that the product batch 02008 was manufactured by Barewa Pharmaceutical Ltd. The Police form D22 was filled containing the particulars of the alleged contaminated My Pikin Baby Teething mixture and the names of the accused persons. The product batch was packaged .and sealed in the presence of the accused persons in three units. On each of the sealed units of the product the accused persons wrote their names and signed. I countersigned. One of the sealed units of the product was given to the accused persons. One of the units was retained by the Federal Tax Force on Counterfeit and Fake Drugs Police Squad Investigation team. One of the units accompanied with the Police form D22 was forwarded to NAFDAC Laboratory for analysis"</p> <p>Learned counsel for the appellant had contended thus:</p> <p>"Whereas PW5 confirmed receiving the samples on 28/11/08, the packaging and sampling was done on 14/01/09 44 DAYS AFTER THE PRODUCTS WERE RECEIVED by PW5 and his team (page 209 of the record)!!! No explanation was given by PW5 for the 44 day interlude between the initial arrest of the accused persons, and the date the sampling was earned out. In such a sensitive case, Involving evidence the integrity of which must be secured and accounted for at every moment, PW5 waited for 44 days before conducting the sampling procedure on the suspected adulterated products already in their custody."</p> <p>Learned counsel overlooked the fact that before PW5 took over the drugs it had already been sampled so that the sampling of 14/10/09 was a second sampling as shown in the evidence of PW3 set out above that "The Sales representative of ROCA pharmacy made a written statement to the Police and Batch 02008 was sampled again". The 44 days wait was consequently of no moment. Besides as earlier stated, Barewa Pharmaceuticals are the only manufacturers of the drug. They identified the products as their own. The possibility of substituting the samples with another is nonexistent. There was no doubt whatever that the samples are same as the ones retrieved by PW4 who confirmed the samples. The attetapt by learned counsel to challenge the authenticity of the drugs at this point is surely an afterthought.</p> <p>PW6, Segun Mamodu, Deputy director and Head Central Drug Laboratory, NAFDAC Yaba testified that the sample of a product labeled and sealed as My Pikin Baby Teething Mixture Batch no. 02008 manufactured by Barewa Pharmaceutical ltd was brought to their laboratory by the Investigating Police Officer from NAFDAC Enforcement Directorate for analysis. It was found that it contained Diethylene. The sample was taken to their sister Laboratory Oshodi for confirmatory tests. He prepared a Laboratory Report which was admitted in evidence as Exhibit T. PW7; Anikoh Musa Ibrahim the analyst in NAFOAC Laboratory Oshodi also found that the sample was contaminated by Diethylene Glycol. He also prepared a Report admitted in evidence as Exhibit U.<br />  <br />  One of the complaints of the Appellant is that the Report of PW6 was hearsay because the analysis was not carried out personally by PW6 but by one Adekunle Segun Olawole, the head analyst under PW6. This argument in my view is misconceived. Adekunle worked under the direct supervision of PW6. Whatever is done in that Department under the supervision of PW6 is his act as the head of the Department. As to how the product came to the laboratory, the evidence of PW6 is that it was brought to them by the IPO. From the cross-examination of PW7 at page 220-223 of the Record, there is no confusion as to what was received. PW7 testified that the sample came from the Central Laboratory Yaba to his Laboratory in Oshodi. Although PW7 referred to the sample as My Pikin Paracetamol Syrup, in Re¬examination he said it was the same as My Pikin Baby Teething Mixture. Such minor discrepancies which result from failure on the part of PW7 to pay attention to the full details of the actual name of the product cannot be a ground for questioning the judgment of the court. See Musa v The State (2009) 15 NWLR (Pt. 1165) 465 @ 489; Habib Musa v. The State (2013) LPELR-19932(SC).</p> <p>The truth of the matter is that throughout the entire gamut of the evidence led in this case, the appellant and his co-accused did not at any point deny their presence during the packaging of the samples or the fact that the drug My Pikin Baby Teething Mixture batch 02008 was manufactured by the 3rd accused/convict. They knew and accepted that there was a problem and they were as anxious as NAFDAC to withdraw the drugs from the market to avoid further loss of life, hence their letter exhibit M to PW4. There was in fact no break in the chain of handling the samples. Samples of the drug were tested at various stages as shown in the list of additional exhibits at page 384 of the supplementary records tendered by the defence through PW1. The process was clear and smooth and culminated in the certificates issued by PW6 and PW7 Exhibits T and U. I agree with learned senior counsel for the Respondent that based on these certificates emanating from NAFDAC laboratories in Yaba and Oshodi, the sample was contaminated with the contaminant Diethylene Glycol. I join the Respondent in asking "what other scientific evidence or proof could be more sufficient and convincing given the provision of Section 55(1) and (2) of the Evidence Act. The sections provide:</p> <p>"55 (1). Either party to the proceedings in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist; an Assistant Government Pathologist or Entomologist or the Accountant-General, or any other Pharmacist so specified by the Government Pharmacist of the Federation or of a State, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State or any accountant specified by the Accountant-General of the Federation or of a state (whether any such officer is by that or any other title in the service of the state or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated therein"</p> <p>(2) Notwithstanding subsection one of this Section any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient evidence of fact stated in it. "</p> <p>In his Reply brief, Mr. Ideh for the Appellant submitted that the presumption of regularity of the certificates based on Section 55(1) and (2) of the Evidence Act is misconceived. He posited that that the law is settled that to satisfy the question whether there is sufficient proof or evidence that the product My Pikin Baby Teething Mixture' was dangerous, the prosecution must prove:<br /> (a)That the identity of the product given to the analyst was the same as the one actually analyzed;<br /> (b)The integrity of the process from sampling all the way to tendering of the product in court; that there is no break in chain.<br /> (c)The integrity of the sampling is unquestionable.</p> <p>I have shown in this judgment so far that the identity of the product given to the analysts was</p> <p>the same as the one actually analyzed. I have also shown that the process of sampling all the way to the tendering of the products in court was unbroken and that the integrity of the sampling cannot rightly be questioned. The 3rd accused/convict Barewa Pharmaceutical is the only manufacturer of the mixture duly registered with NAFDAC. It is safe to assume that the baby mixture once properly packaged as normal and the chain of distribution is confirmed by Barewa; that the product is that of Barewa unless there is evidence to the contrary. In the instant case there was no such contrary evidence. Rather both the appellant and his co-accused and PW4 confirmed the bottles to be that of Barewa before they were sent to the Laboratory for analysis. There did not appear to be any possibility of the drugs being substituted with another. There is no question of the chain snapping and a reasonable doubt arising. Both PW6 and PW7 are officers in charge of the Laboratories established by NAFDAC, the appropriate authority. In the circumstances, the certificates presented by PW6 and PW7 Exhibits T and U have to be taken as sufficient evidence of the facts stated therein. The evidence led by the Appellants did not in any way detract from the facts in the certificates that the samples analyzed were contaminated. Issue one is resolved in the affirmative against the Appellants.</p> <p>On issue 2, contrary to the contention of learned counsel for the Appellant there are no substantial contradictions in the evidence of PW2, PW3 and PW5. The argument of learned counsel for the appellant ran thus:</p> <p>PW2 stated at pages 153-158 of the records that she visited the factory of Barewa Pharmaceuticals Limited three (3) times on the 19th &amp; 24th 25th of November. According to PW2 she forwarded the samples taken during her visit on 24/11/08 to the NAFDAC Laboratory for analysis. PW2 never gave evidence that she recovered any products from Roca Pharmacy, nor that she sent any samples of products to the Federal Task Force on Counterfeit and Fake Drugs Enforcement Directorate. Excerpts of her evidence of 15/05/12 are hereunder reproduced for ease of reference:</p> <p>"We thereafter inspected their quality assurance quarantine room where we took some samples of My Pikin Teething Baby Mixture. I drew up a sample receipt form detailing the batches of</p> <p>my Pikin teething mixture, which included Batch No. 02008 manufactured October 2008 to expire October 2011. 1 also included samples of the raw materials that we took. I signed on behalf of NAFDAC and Mr Adeyemo signed on behalf of Barewa Pharmaceuticals Ltd. We departed the company and forwarded the samples taken to NAFDAC Laboratory for evaluation."<br /> In clear contradiction to the above, PW5 testified on 19/04/12 as follows:<br />  <br /> "... The investigation was ongoing. Botch 02008 was among the other products recovered from Roca Pharmacy. The product Roca (sic) was sent to the Federal Task Force on Fake and Counterfeit Drugs bv Mrs. Owolabi Deputy Director of Establishment Inspectorate Directorate NAFDAC"</p> <p>In further contradiction of the statement of PW5, PW3 testified as follows at pages 183—184 of the records:</p> <p>"... The sales representative of ROCA Pharmacy made a written statement to the police and Batch 02008 was sampled against in (sic) the presence of superintendent pharmacist, production pharmacist and analyst of Barewa Pharmaceuticals Ltd. The sample was in triplicate one set given to three officers of Barewa, one set was sent to NAFDAC Control (sic) Laboratory. The third set was given to the Investigating Police Officer (IPO) as exhibit. The case was transferred from NAFDAC Enforcement Directorate to the Legal department of NAFDAC "</p> <p>Respectfully, we contend that the learned trial Judge in convicting the Appellant, failed to properly avert his mind to the three materially different versions of the same alleged factual situation; as testified by PW2, PW3 &amp; PW5. Whereas PW3 stated that she dispatched one set of the samples to the IPO, he (PW5) testified to having received it from PW2, under the cover of a written document He could therefore not have been mistaken. Surprisingly the written document was not tendered.</p> <p>On account of all these material contradictions, it is our submission that the learned trial Judge ought not to have convicted the Appellant as charged on Counts 3 &amp; 4 as the testimony of PW2, PW3 A PW5 ought not to have been believed and consequently relied upon.</p> <p>There are no material contradictions in the evidence of the three witnesses. The first quoted evidence of PW2 referred to samples collected from the factory of 3rd accused/convict before the mopping up exercise and the return of the samples retrieved by PW4 of ROCA Pharmacy. These samples were forwarded to NAFDAC Laboratory for evaluation as testified by PW2. At page 158 and 160 of the printed record, PW2 further testified:</p> <p>"The company was directed to indicate the recall of their products. The then Director-General directed that we mop nationwide the product My Pikin Baby Teething Product nationwide. I thereafter transferred as directed all documents and products moped up to the Enforcement Directorate of NAFDAC..'</p> <p>The evidence of PW5 clearly tallies with the above further evidence of PW2. PW5 was right when he said that the product from ROCA Pharmacy was sent to the Federal Task Force on Fake and Counterfeit Drugs by Mrs. Owolabi Deputy director of Establishment Inspectorate Directorate NAFDAC. The evidence of PVV3 at pages 183-184 reproduced above also tallies with the evidence of PW5 at pages 195-198 of the Record. PW3 was actually describing the scenario that occurred in the presence of PW5 as they worked as a team. PW5. obtained the statements of the accused persons and that of PW4 of ROCA. He and PW3 then again prepared the samples in triplicate and distributed as Indicated by PW3. The learned trial judge was consequently right in acting on the evidence as there were no material contradictions in the statements.<br />  <br /> On the discrepancy relating to PW7 referring to the sample as "My Pikin Paracetamol Syrup" as against "My Pikin Baby Teething Mixture"; I agree with learned senior counsel for the Respondent that it is a mere discrepancy resulting from failure of human memory which cannot lead to the setting aside of the judgment of the lower court. As I stated earlier, Although PW7 referred to the sample as My Pikin Paracetamol Syrup, in re-examination he said it was the same as My Pikin Baby Teething Mixture. As rightly submitted by Respondent's counsel it is a notorious fact that it is only the same products manufactured by the same company that can share the same brand name, content, size, batch number and NAFDAC registration number.</p> <p>The particulars disclosed in exhibit U by PW7 are the same as disclosed in exhibit T, save that exhibit T mentioned My Pikin Baby Teething Mixture. My Pikin is a brand name for teething drugs manufactured by Barewa pharmaceutical and no other pharmaceutical company-in Nigeria bears such name. Furthermore, it was alleged for the Appellant that exhibit F described the product to have a plastic screw cap whereas in exhibit U, the description of the sample My Pikin Baby Teething Mixture was with a liquid amber coloured glass bottle with tamper proof metallic screw. The truth is that these insignificant discrepancies are not enough to entitle the appellant to an acquittal.   It is only when the contradictions in the evidence of witnesses called by the prosecution are substantial and fundamental to the main issues in question as to create doubts in the mind of the court that an accused person may be entitled to an acquittal. See the cases of Isibor v. State (2002) 9 NSCC 248 @ 254; Ndike v. State (1994) 8 NWLR (Pt. 360) 33. The discrepancies here are conceivably within the margin of human error. See the following cases referred to by Respondent's counsel: Okonji v. State (1987) 1 NWLR (pt.52) 659; State v. Mbanpbese &amp; anor (1988) 3 NWLR (pt.84) 548; Onubogu v. State (1974)9 S.C. l;Wankey v. State (1993) 5 NWLR (pt.295) 542 at 552. In the case of Dibie v State (Supra) also cited by learned counsel for the Respondent the SC observed:</p> <p>"Contradictions in evidence of prosecution witnesses can only be of assistance to an accused person if they are material and substantial Where contradictions are immaterial and are regarded as mere discrepancies, they cannot exculpate an accused from criminal responsibility... Evidence of witnesses in court is not an exact thing like a triangle in geometry. Human beings will see the same object and describe it in different ways with some personal embellishments here and there that colour the object in some inarticulate difference. This does not detract from the main object...."</p> <p>PW7 testified at page 220 of the Record that Exhibit R containing my pikin baby teething mixture batch no 02008 ' manufactured by Barewa pharmaceuticals Ltd is what he was asked to analyze. The exhibit was properly identified by PW7 during his examination-in-chief as being the same as the sample analyzed which was also identified by PW6 as being the same as the sample he analyzed. By the testimonies of PW4 and PW5, the accused persons did not present their own set of drug sample to contradict or disprove the authenticity and accuracy of exhibit R.</p> <p>Learned counsel for the Appellant also made an issue of the fact that the prosecution did not produce any death certificate in proof that death occurred as a result of the sales or distribution of the contaminated batch of My Pikin. As rightly submitted by learned counsel for the Respondent, the charge here is not one of murder. Consequently production of death certificate is unnecessary. The charge is for conspiracy and selling of dangerous drug to ROCA pharmacy. It was proved scientifically that My Pikin "batch 02008 contained diethylene glycol. PW1 in her unchallenged evidence testified that diethylene Glycol is a lethal chemical.</p> <p>On whether there was any evidence of conspiracy to sell dangerous drugs, learned counsel for the Appellant had submitted that the offence was not a strict liability one and that the prosecution must prove the mental element as well as the physical act for which the offence of conspiracy can either be proved directly or reasonably inferred. He cited the cases of Oyediran v. Republic (1967) NMLR 127 and Oduneye v. State (2001) 2 NWLR (Pt 697) 311.</p> <p>In the case of Obiakor v. State (2002) 10 NWLR (Part 774-776) 612 @ 628-629, Kalgo JSC discussed the nature of the offence of conspiracy thus:</p> <p>"Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts…..And for circumstantial evidence to ground conviction, it must lead to one and only one conclusion i.e the guilt of the accused. See Popoola v. Commissioner of Police (1964) NMLR 1; R. v. Roberts (1913) 9 CAR 189 Raphael Ariche v. State (1993) 6 NWLR (Pt.302) 752. The facts to be relied upon for conviction must be consistent, cogent and must irresistibly lead to guilt of the accused.    "</p> <p>Further in the case of Clark v State (1986) 4 NWLR (Pt. 35) 381 @ 394H Kolawale JCA delivering the lead judgment observed:<br />  <br /> "What then is the nature of evidence required in a case of conspiracy of this kind? Generally, it may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved, and the person charged be also proved to have been engaged in it, I think it is well recognized in law that it is not necessary that it should be proved that the appellants met to concoct the scheme which led to the theft of the subject aircraft    <br /> I believe that the essential ingredient of the offence of conspiracy or the gist of the offence lies in the bare engagement and association to do an unlawful thing which is contrary to or forbidden by law, whether that thing be criminal or not, whether or not the accused persons had knowledge of its unlawfulness. It is of course necessary to constitute the offence that there should be a criminal purpose common to all the conspirators. (See R. v. Clayton (1943) 33 Cr App.R 113)"</p> <p>Did the accused persons conspire among themselves to sell dangerous drugs to wit My Pikin Baby Teething Mixture to Roca Pharmacy? The evidence did not disclose any such agreement. Can an inference of such an agreement be drawn from the evidence led in this case? The actual reasoning of the lower court in reaching its judgment is at pages 365 - 369 of the printed record. The Court did not evaluate the evidence led by each side of the divide on the matter of conspiracy before convicting the accused persons on count 3. Was there evidence from which a criminal purpose common to the appellant and his co-accused can be inferred? There does not in my humble view appear to be any evidence of complicity or agreement between the appellant and his co-accused persons to sell dangerous drug to Roca Pharmacy or any other person. As rightly submitted by learned counsel for the Appellant, PWl's evidence was that a school certificate holder purchased a keg of Diethylene Glycol wrongly labeled as Propylene-Glycol. This is what led to the quagmire the appellant and his co-accused found themselves in. It cannot be said that they conspired to buy the contaminated chemical. Yes, there may have been negligence in allowing a school certificate holder to purchase from the street instead of from a reputable company. There may have been negligence in not having the necessary materials to carry out proper test of raw materials and finished product. The evidence of PW1 and PW2 with respect to their visit of 25/11/08 may have shown a great deal of laxity and failure to follow procedure to ensure safety of drugs manufactured by the company. All these do not in any way show complicity to sell dangerous drug. They certainly did not deliberately plan, agree or intend what happened to happen. In Oduneye v. State (supra) the Supreme Court per Achike JSC at page 325 A-B observed:</p> <p>"The overt act or omission which evidence conspiracy is the actus reus and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. The gist of the offence is the meeting of the minds of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal act of the parties concerned done in pursuance of the apparent criminal purpose in common between them, and in proof of conspiracy the acts or omissions (and or commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. In essence, conspiracy is invariably an offence that is inferentially deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose."<br />  <br /> See generally the following cases: KAYOOE V ST A TE (2016) LPELR-SC.83/2012; OKAFOR V THE STATE (2016) LPELR-SC.843/2014: JOHNV. STATE (2016) LPELR-SC.59/2014</p> <p>There is nothing in the evidence adduced by the prosecution from which an inference may be drawn of a meeting of the minds; or the existence of a common design or mutual agreement by the appellant and his co-accused persons to sell dangerous drug to ROCA Pharmacy or any other person. The Appellant and his co-accused who are the Quality Assurance Manager and General Manager/Production Pharmacist of the 3rd Accused Barewa Pharmaceutical Ltd were negligent bothering on recklessness given their wealth of experience in drug production and knowledge of the danger to the health of consumers if mistakes are made. The evidence of PW1 and PW2 chronicled the lapses noted during their visit to the factory premises on 25/11/08 which lapses were confirmed by the appellant in Exhibit 01, his statement to the Police. Therein he stated:</p> <p>“The company has written standard Operation Procedure for all raw materials including Propylene Glycol testing such as identification tests and solubility. But other tests that could differentiate it from other materials such as boiling point and other tests could not be carried out due to lack of reagent. TLC is performed on propylene glycol but because of lack of ammonium hydroxide it could not be standardized, thus not documented. The laboratory is not adequately equipped for the test of contamination and other tests    "</p> <p>None of the evidence disclosed any meeting of the mind of the appellant and his co-accused to sell dangerous drug to Roca pharmacy. Indeed the evidence contradicts the theory of a conspiracy. The learned trial judge was consequently wrong to have convicted the appellant and his co-accused on count 3 of the charge.</p> <p>Learned counsel for the appellant complained that the learned trial judge failed to consider the evidence of DWI but rather relied heavily on his unsworn statement to the police. The unsworn testimony of DWI is almost in the nature of a confession. No objection was raised to its admissibility at the time it was tendered as an exhibit. DWI did not disclaim the statement in his oral evidence in court. But he made statements on oath which contradicted his statement to the police. For example, in his statement to the police, he stated plainly that the laboratory was not adequately equipped for tests of contamination and that because of inadequate supplies; they could not guarantee the quality of both raw materials and the finished product My Pikin". In his oral evidence in court, DWI backpedalled and recanted from these confessional statements. The fact that an accused has retracted a confessional statement does not mean that the court cannot act on it. Before a conviction can be properly founded on a retracted statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Ubierho v. The State (2005) 5 NWLR (Pt. 919) 644.The evidence of PW1 and PW2 on their visit to the factory supported the unsworn statement to the police. The learned trial judge was right in acting on the confessional statement. I am of the firm view that the evidence adduced by the prosecution even without the unsworn statement and oral evidence of DWI was credible enough to support the conviction of the Appellant on count 4. Subject to the setting aside of the judgment of the lower court on the count of conspiracy, Issue 2 is resolved against the Appellant.<br />  <br /> On whether the sentence of seven years imprisonment on count 4 was justified, the general rule is that sentencing is a matter completely at the discretion of the trial court provided the discretion is exercised judicially and judiciously within the law. An appellate court consequently will not interfere with the exercise of discretion by the lower court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle. See the case of Omokuwajo v. FRN (2013) LPELR-20184(SC). Learned counsel for the Appellant has raised no valid point as to why we should interfere with the lower court's discretion in imposing a sentence of seven years on count 4. The fact that the appellant is a first offender may be one of the reasons taken into consideration by the lower court in the exercise of its discretion to impose the sentence of 7 years instead of the maximum of 10 years. We find no reason whatsoever to interfere with the lower court's exercise of discretion in imposing a sentence of seven years with respect to count 4.</p> <p>In the final result, this appeal succeeds in part. The conviction and sentence of the Appellant on count 3 is hereby set aside. The conviction and sentence of the appellant on count 4 is affirmed.</p> <p>YARGATA BYENCHIT NIMPAR I had the privilege of reading in draft the judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I agree with the reasoning and conclusions arrived at in the judgment.<br /> The issues raised in this appeal boils down to majorly evaluation of evidence. The Appellant sought to raise a lot of contradictions and loopholes in the case of the Respondent. For example, he raised doubts on the source of the product samples with Batch No. 02008. However, the fact still remains that ROCA Pharmacy acted on the instructions of the Appellant when it went to retrieve the drug from the wholesalers it supplied to. Since the Appellant did not prove any other fact to the contrary, neither was the testimony of PW4 discredited during trial, then, there is a presumption of truth in that fact. See the case of EGHAREVBA v. STATE (2016) LPELR - 40029 (SC) which states thus:</p> <p> "Now, what is proof beyond reasonable doubt? The answer is provided in the case of K.GOPAL REDDING V. STATE OF AP AIR 1979 SC 387 wherein the Indian Supreme Court held, inter alia: "A reasonable doubt does not mean some light, airy, insubstantial doubt that may flip through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons." More so, it is of no consequence that the investigator, PW5 did not go further into investigating the various deaths allegedly caused by the product.<br />  <br /> The Appellant was only charged with manufacturing and distributing an adulterated drug and not causing death and consequently, investigations which bordered on whether the drugs manufactured and distributed by the Appellant were adulterated is sufficient for the purpose. The fact that drugs distributed and sold contained chemicals dangerous for human consumption is bad enough. Death must not be proved.</p> <p> As to the credibility of the witness PW6, who testified on the conduct of the sample analysis, there is a presumption of regularity in the manner of the sampling besides the Appellant did not raise any evidence to the contrary. It was also not necessary for the forensic expert, who analysed the drugs, to come to Court, in person, to tender the document for it to be admitted. What governs admissibility is relevance, the fact that the document had been pleaded and is properly tendered in the correct form and by the person it should be produced. While it is quite settled that it is the maker of a document that should tender the document in any legal proceedings in court, this is not the case here. The witness who tendered the report in this case was also a signatory to the report and this is sufficient to enable him tender such document in court. The contention as to hearsay evidence is not tenable, see IFEANYI CHIYENUM BLESSING V. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR - 9835(CA). Besides, the testimony by an officer in charge of a laboratory established by appropriate authority may be taken as sufficient evidence of facts stated in it. This position was clearly stated in the case of IFEANYI CHIYENUM BLESSING V. FEDERAL REPUBLIC OF NIGERIA (SUPRA) as follows: "By section 55 (1) (2) and (3) of the Evidence Act, 2011; (1) "Either party to the proceeding in any Criminal case may produce a Certificate signed by the Government pharmacist, the deputy Government  pharmacist, an Assistant Government pharmacist, a Government Pathologist or entomologist or the Accountant - General, or any other pharmacist so specified by the Government pharmacist of the Federation or of a state, any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State or any accountant specified by the Accountant General of the Federation or of a state (whether any such officer is by that or any title in the service of the state of the Federal Government), and the production; of any such certificate may be taken as sufficient evidence of the facts stated in it (2) Notwithstanding subsection (1) of this section, any certificate issued and produced by any, officer in charge of any laboratory established by appropriate authority may be taken as sufficient evidence of facts stated in it" In any case, when an official act is shown to have been done in a manner substantially regular, it is presumed that all formal requisites for its validity were complied with. The presumption is rebuttable only by contrary evidence. The onus is therefore on the party alleging the contrary to rebut this presumption of regularity which enures in favour of the plaintiff. See NWACHUKWU v. THE STATE (2002) 12 NWLR [pt.782] 543, HORSFALL v. AMAIZU &amp; ORS(2013)  LPELR-22874(CA). The Appellant failed to tender any evidence to the contrary. And may I also say that the submissions of the Appellant that establishing the integrity of the unbroken chain is a pre - condition to establishing the offence is not backed up by any authority.<br />  <br /> In my opinion the certificate of test analysis in respect of the drug is sufficient to satisfy the burden of proof required by law under Section 138 (1) of the Evidence Act, see FEDERAL REPUBLIC OF NIGERIA V. JOSEPH DANIEL (2011) LPELR - 4152(CA). The certificate having been tendered and admitted in evidence can be relied upon by the court to determine the content and quality of the sample.<br /> The testimony as to the metallic screw cap being different from the original plastic cap or as to the contradictions of the name (whether referred to as "My Pikin Paracetamol" or "My Pikin Teething mixture") is not sufficient to discharge the accused. The issues raised by the Appellant as to his unconsidered testimony do not help his case. The fact still remains that it was the sample manufactured by the Appellant that was tested but found to contain the contaminant. The case of UWAGBOE V. STATE (2008) ALL FWLR (PT. 419) 425 AT 432 - 433 (SC) states as follows:</p> <p>"Two pieces of evidence contradict one another when they are by themselves inconsistent A discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says, or contains some minor differences in details. Minor discrepancies between a previous written statement and subsequent oral testimony do not destroy the credibility of witness."<br /> The Appellant argued that the intent of conspiracy and selling of the drug was not proved. As to the issue raised on the proof of conspiracy, where the count of conspiracy is based on the same facts as those of the substantive offence, courts are enjoined to deal with the substantive charge first. This is logical because should the substantive charge be unproven, there would indeed be no conspiracy to commit the substantive offence, see<br />  <br /> ADELARIN LATEEF &amp; ORS. v. THE FEDERAL REPUBLIC OF NIGERIA (2010) LPELR - 9144(CA)<br /> Now to the substantive offence; S. 1 (18) (a) (ii) of the Miscellaneous Offences Act for which the Appellant were convicted states as follows: <br /> "Any person who-<br /> deals in, sells, offers for sale or otherwise exposes for sale any petroleum, petroleum product, food, drink, drug, medical preparation or manufactured or processed product which is not of the quality, substance, nature or efficacy expected of the product or preparation, or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in any way been rendered or has become noxious, dangerous or unfit, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding ten years'" The ingredients of the offence which must be established are that: 1. Proof that the drug was contaminated 2 Proof that the Appellant sold the adulterated drug 3. Proof that the product is not of the quality, expected of the product or is not of the quality, substance, nature or efficacy which the seller represents it to be, or has in any way been rendered or has become noxious, dangerous or unfit<br /> 'Intention to sell the drug' is not an ingredient of the substantive offence for which the Appellants were convicted. I find that the three ingredients have been sufficiently established and that the trial court rightly convicted the Appellants on count 4.<br />  <br /> Now to the offence of conspiracy. My learned brother, IYIZOBA, JCA has aptly conveyed my exact thoughts on this issue. I need not say more.<br /> On the whole, I agree that the offence of conspiracy in count 3 was not established and the conviction and sentence on count 3 is hereby set aside. The appeal succeeds in part. However, the effect of this decision will have no effect on the sentencing since the 7 years sentence on the </p> <p><u><strong>JAMILU YAMMAMA TUKUR JCA.</strong></u> I had the priviledge of read in draft the lead judgment just delivered by learned brother Chinwe Eugenie Iyizoba JCA.<br /> I agree with the reasoning and conclusion in the judgment. I also allow the appeal in part I abide by the consequential orders made therein.</p> </div> </div> <p><strong>Counsel</strong></p> <p>O.E.L. IDEH ESQ. with O. AJETUNMOBI ESQ. FOR THE APPELLANT<br />  <br /> -CHIEF MIKE OZEKHOME SAN with JEFF KADIRE ESQ., CHARLES OMOSOHWOFE ESQ., CHIMA ONUIGBO ESQ. AND KAMAL FAWEHINMI ESQ. for the RESPONDENT</p></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:52 +0000 Anonymous 325 at http://nigerialii.org Coscharis Motors Ltd v Capital Oil And Gas Ltd (L 337 of 2013) [2016] NGCA 23 (13 June 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/23 <span class="field field--name-title field--type-string field--label-hidden">Coscharis Motors Ltd v Capital Oil And Gas Ltd (L 337 of 2013) [2016] NGCA 23 (13 June 2016);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/77" hreflang="x-default">CL, Grounds of Appeal, Jurisdiction, Inherent Powers of The Court</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p> The subject-matter of this appeal concerned the enforceability of an English court order on the parties’ dispute. The first and second respondents argued in the court below that the appellant and third respondent were in breach of the order of a lower court, and so they sought an order restraining its enforcement. The trial judge admitted a copy of the English court’s ruling but made further other orders affirming the subsistence of the lower court ruling which led the appellant to lodge an appeal on multiple grounds.</p> <p>Regarding the main appeal, the court endorsed the first and second respondents’ argument that the third respondent ought to be compelled to observe the subsisting order of the lower court. It affirmed the inherent power of the court to act where an existing court judgment is flouted to uphold the integrity of the judiciary. Such an issue may be raised by either party orally, by formal application, or raised by the court itself. </p> <p>Although the appellant was not part of the suit and lacked the requisite legal standing without formal application, that it was a beneficiary of the English court’s order meant that the trial judge was justified to restrain it from enforcing the order. However, the appellant had been incorrectly found to be jointly liable with the third respondent for flouting the judgment of the court below, so it experienced some success on this count.</p> <p>On the challenge of the trial court’s jurisdiction to make one of its pronouncements, the appellate court found that the judge had unlawfully addressed the substance of a forthcoming application. This violated the well-established principle that a court must make its findings and orders on the same grounds of argument it has received from the parties. This issue was therefore resolved in the appellant’s favour.</p> <p>Overall, the appeal was meritorious and allowed in part.<br />  </p> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <div> <div> <div> <div> </div> <div> </div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong></div> <div>?</div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>COSCHARIS MOTORS LLTD</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>CAPITAL OIL AND GAS LTD<br /> MR IFEANYI PATRICK UBAH<br /> ACCESS BANK PLS</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (Delivered By ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA)</strong><br /> This appeal arose from the Ruling of the Federal High Court, coram ABANG, J., delivered on the 28th of January, 2013. The brief facts of this case as indicated by the Appellant is that, by a writ of summons dated and filed on the 30th of October, 2012, the 1st and 2nd Respondents as Plaintiffs claimed various reliefs against the Appellant and the 3rd Respondent. Along with the originating processes, the Respondent also filed a motion on notice for interlocutory injunction which was heard and ruled upon by the trial court on 12th November, 2012 wherein an order of interlocutory injunction restraining the Appellant and the 3rd Respondent from interfering with the assets of the 1st and 2nd Respondents, pending the determination of the suit.</p> <p>The Respondent subsequently filed two motions on the 15th November, 2012, praying the lower court inter alia to dismiss the entire suit for want of jurisdiction. On 21st January, 2013, when the Appellant's applications came up for hearing, the Respondents' counsel applied for a short adjournment to enable him to respond to the applications of the Appellant in the suit. On the adjourned date of 25th January, 2013, the Appellant moved its motion challenging the jurisdiction of the lower court. While relying, the 1st and 2nd Respondents' counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Pic v Rofos Navigation Ltd &amp; 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower court made on 12th January, 2012. He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent. The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower court vide a Notice of Appeal dated 30th January, 2013 and filed on 31st January, 2013 on seven grounds. However, the Appellant abandoned ground 4 of appeal as contained in the Notice of Appeal at page 5 of the Appellant's brief.</p> <p>Before this court, parties complied with the Rules of the Court by filing and exchanging briefs. Appellant's brief prepared by Osita Mbamalu (LLM) of Magna Konsults, Ositadinma Chambers is dated 5th June, 2013 and filed 6th June, 2013 but deemed properly filed 25th June, 2015. A Reply brief settled by Osita Mbamalu, Kene Udemezue, C. O Onumaegbu, J. C. Umeh dated 15th March, 2016 and filed 17th March, 2016 but deemed 21st April, 2016 was also filed.<br /> 1st and 2nd Respondents' brief is dated and filed on 11th February, 2016 but deemed 21st April, 2016. Same is settled by Olabode Olanipekun, Bolarinwa Awujoola, Michael Akinleye of Wole Olanipekun &amp; Co. No brief was filed by the 3rd Respondent. Meanwhile, 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 11th February, 2016 urging this court to strike out and/or dismiss the Appellant's appeal. Arguments in respect thereof have been incorporated in the Respondents' brief. Nonetheless, the grounds of the said objection are:<br /> i.    Particular (i) of Ground 1 is argumentative.<br /> ii.    Particular (iii) of Ground 1 is a misrepresentation of the ruling of the lower court.<br /> iii.    Further to (ii) above, particular (iii) of Ground 1 does not arise from the ruling of the lower court.<br /> iv.    Further to (ii) and (iii) above, Ground 1 is a misrepresentation of the decision of the lower court.<br /> v.    Further to (i) - (iv) supra, Issue 1 distilled from Grounds 1 and 6 is incompetent.<br /> vi.    Ground 2 is a misrepresentation of the decision of the lower court.<br /> vii.    Further to (vi) above, Ground 2 does not arise from the decision of the trial court made on 28/1/13.<br /> viii.    Ground 3 is a misrepresentation of the ruling of the lower court.<br /> ix.    Further to (viii) above, Ground 3 does not arise from the judgment of the lower court.<br /> ix.    Particular (vii) of Ground 3 is argumentative.<br /> x.    Particular (iv) of Ground 5 is argumentative.<br /> xi.    Ground 5 does not arise from the judgment of the lower court.<br /> xii.    Particular (i) of Ground 1 adopted in particular (i) of Ground 6 is argumentative.</p> <p>xiii.    Particular (iii) of Ground 1 adopted in particular (i) of ground 6 is a misrepresentation of the lower court's ruling and it does not arise from the said ruling.<br /> xiv.    Further to (xiv) above, Ground 6 is incompetent.<br /> xv.    Particulars (i), (iii) and (iv) of Ground 7 are argumentative.<br /> xvi.    Further to (xvi) above, Ground 7 is argumentative.<br /> xvii.    Further to (i) - (xvii), the appellant's appeal is incompetent.</p> <p>Arguing the preliminary objection, 1st and 2nd Respondents' counsel submitted that ground 1, particular (i) thereto, contains arguments and legal submissions contrary to the clear imperatives of Order 6 Rule 2(3) of the Court of Appeal Rules, 2011 which completely proscribes a ground of appeal from being argumentative, hence provision is made for filing of briefs of arguments. Counsel submitted that ground 1 is a misrepresentation of the ruling of the lower court as particular (iii) which forms the fulcrum of the ground is an unfair attack on the ruling of the lower court and did not arise from same. He relied on KHALIL v YAR'ADUA [2003] 16 NWLR (PT 847) 46 at 478- 479; CBN v OKOGIE [2002] 8 NWLR (PT 768) 48 at 61; LAAH v OPALUWA [2004] 9 NWLR (PT 879) 558 at 566. He referred to page 476 of the record to submit that the said particular represents the lower court as holding that the Appellant has the locus to withdraw a suit having being a beneficiary of an order therefrom. It is the submission of counsel that when the holding of the lower court is placed side by side ground 1 of the Notice of Appeal, it becomes perspicuous that the lower court never made a finding that "the appellant was a beneficiary of the London suit and as such had the locus to withdraw the suit". He cited ILOABUCHI v ILOABUCHI [2000] 5 NWLR (PT 656) 178 at 203; DAILY TIMES v DSV LTD [2014] 5 NWLR (PT 1400) 327 at 351; AFRICAN PETROLEUM PLC v ADENIYI [2011] 15 NWLR (PT 1271) 560 at 585, E - G; LAAH v OPALUWA (supra) at 567 - 570, paras H - B; HONIKA SAWMILL NIG. LTD v HOFF [1994] 2 NWLR (PT 326) 252; ARIBO v CBN [2011] 2 NWLR (PT 1260) 133 at 160, C - F to submit that since issue one was jointly formulated from ground one and six of the notice of appeal, same is rendered incompetent and liable to be struck out. On ground 2, counsel submitted that nowhere in the Ruling of the trial court, did the court make any finding or pronouncement, touching directly or indirectly, on the motion filed by the Appellant, seeking to vacate the orders made on 12/11/2012, as same was never argued by the Appellant. That ground 2 does not relate to any of the reasons given by the trial court as it represents the lower court as having determined its application. At no point did the learned trial judge make the decision stated in particular (iv) of ground 2 of the notice of appeal and that the complaint of the Appellant in the said ground is strange and alien to the decision of the trial court. He relied on ILOABUCHI v ILOABUCHI (supra); BORISHADE v NBN LTD [2007] 1 NWLR (PT 1015) 2,17 at 255; OBA v EGBERONGBE [1999] 8 NWLR (PT 615) 485 at 489; AGBAKA v AMADI [1998] 11 NWLR (PT 572) 16 at 24 to argue that ground 2 and issue 2 are incompetent.</p> <p>On ground 3 and 5 of the Notice of Appeal, counsel argued that apart from the fact ground 3 is argumentative, it is also another characteristic misrepresentation of the lower court's Ruling by the Appellant since same represents the lower court arrived at its decision suo motu granting reliefs not sought by the Respondent. He referred to a portion of the judgment of the lower court at page 357 of the record which he juxtaposed with the orders granted by the lower court, that same exposes ground 3 as a misrepresentation of the lower court's decision since the Respondents clearly sought for the lower court's order to halt the proceedings before the English court or any part of the world. He contended that ground 5 is also a misrepresentation of the lower court's ruling since the said ground complains of the lower court's refusal to follow Order 28 of the Federal High Court Rules (FHC Rules); that the Appellant's responses to Respondents’ application on pages 361 - 362 of the record did not expressly or remotely refer to Order 28. It is the contention of counsel that ground 5 also suffers from the affliction of being argumentative contrary to the Rules of this court and liable to be struck out. He submitted that grounds 3 and 5 as well as the respective issues 3 and 4 distilled therefrom are incompetent and ought to be struck out.</p> <p>On grounds 6 and 7, counsel adopted argument made with respect to the objection to ground 1 in urging this court to strike out ground 6 for being a gross misrepresentation of the lower court's decision and that ground 7 is a classical infringement on the provisions of the rule of this court and urge this court to strike same out. He relied on A.S.T.C v QUORUM CONSORTIUM LTD [2009] 9 NWLR (PT 1145) 1 to submit that based on the forgoing argument and since ground 4 has been abandoned by the Appellant, the entire appeal is left bare and becomes fated for an order dismissing and/or striking out same.</p> <p>Appellant's response to the above objection and argument of the Respondents is contained in the Appellant's Reply Brief. With respect to the competence of ground 1 of the Notice of Appeal, Appellant's counsel submitted that the Respondents did not challenge the competence of ground 1 itself but rather questioned the validity of particulars (i) and (iii) thereto. It is the submission of counsel that the law is that once a ground of appeal is concise and clear and is not argumentative or narrative, the fact that any particular thereunder is argumentative is not sufficient to deny a right of appeal; that what must not be argumentative is the ground of appeal upon which the Appellant intends to rely upon. He cited OBEMBE v EKELE [2000] 10 NWLR (PT 722); GALAUDU v KAMBA [2004] 15 NWLR (PT 895) 31; KARUNA v K.S.H.A [2010] 7 NWLR (PT 1194) 604 before arguing that a single particular without more can sustain a ground of appeal; that even when particulars (i) and (iii) of ground are incompetent, there are still surviving particulars (ii) and (iv) which are competent and can in themselves sustain Ground 1. He further submitted that there is nothing in ground 1 of the Notice of Appeal which is argumentative or contains any argument; that particular (i) merely restate a trite position of the law which is beyond argument or contention, while particular (iii) in itself does not in any way contain a misrepresentation of the Ruling of the lower court. He submitted that the Respondents' counsel failed to consider the entire Ruling delivered by the Honourable trial court and the flow of the court's argument. It is the contention of counsel that the Appellant was not a party to the suit between the 3rd Respondent and the Respondents in London. Counsel argued that implicit in the Ruling of the lower court is the fact that the rationale for the order against the Appellant (2nd Defendant) to withdraw the case in the English Court wherein it was not a party to. He contended that the cases cited by the Respondents does not apply to this case and should be discountenanced.</p> <p>On ground 2, counsel contended that the objection of the Respondents' counsel is misconceived and should be struck out. He referred to pages 86 - 138 of the record with respect to the Appellant's motion on notice dated 15/11/12 wherein the Appellant sought an order vacating and setting aside the order of interlocutory injunction granted in the suit on Monday 12th of November, 2012. He further submitted that there is no doubt that the application being argued by the Appellant at the lower court on 25/1/13 was another application dated 15/11/12 challenging the lower court's jurisdiction to hear the suit and that the Appellant's motion to set aside the order of injunction made by the court was still lying dormant in the court's file awaiting the fate of the Appellant's motion challenging the jurisdiction of the court. He referred to page 458 of the record to submit that the Ruling of the trial court contained therein had conclusively determined and decided the fate of the Appellant's unmoved application dated 15/11/2012. He then submitted that it is not true that ground 2 of the Notice of Appeal did not arise from the Ruling of the lower court. On ground 3 and 5, he argued that both grounds are clear and concise and therefore competent. He argued as per OGBUANYINYA v OKUDO [1979] 6-9 SC 32 that although a ground of appeal must stem from the text of the judgment "ipissima verba", this does not limit the scope of a ground. Citing AKPAN v BOB (supra), counsel submitted that a ground of appeal can arise in a number of situation such as: (a) from the text of the decision appealed against "ipsissima verba"; (b) from the procedure under which the claim or decision was initiated or rendered; (c) from commissions or omissions by the trial court. Counsel urged that all the grounds of appeal filed by the Appellant are competent having arisen from the situations delimited in AKPAN v BOB (supra) and finally, that once a ground of appeal clearly, as in this case, states what the Appellant is complaining about, and there is compliance with the Rules of court, the grounds cannot be described as bad and therefore incompetent vide ADDAX PET DEV (NIG) LTD Vs DUKE [2010] 8 NWLR (Pt. 1196) 278; that the purpose of all rules relating to the formulation of ground of appeal is to ensure that the Respondent is not taken by surprise, and there is no element of surprise on the Respondents in the instant appeal.</p> <p>Finally, he submitted that a ground of appeal alone is enough to sustain an appeal and likewise one competent particular of a ground of appeal can sustain the ground vide EGBIRIKA v STATE [2014] 4 NWLR (PT 1398) 558; TOTAL UPSTREAM NIG. LTD v AIC LTD [2016] 2 NWLR (PT 1497); that even if this court finds any particulars of a ground or a ground defective, such is not enough to vitiate the validity of the entire appeal once there is surviving a single ground of appeal with a valid particular.</p> <p>I have considered the argument of counsel with respect to the objection to the competence of the grounds of appeal contained in the Notice of Appeal filed by the Appellant. Order 6 of the Court of Appeal Rules, 2011 contains provisions relating to the Notice and Grounds of appeal. It reads:</p> <p>1. "...<br /> 2. (1) All appeals shall be by way of rehearing and shall be bought by notice (hereinafter called "the notice of appeal") to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.<br /> (2) Where a ground of appeal alleges misdirection or error of law, the particulars and the nature of the misdirection or error shall be clearly stated.<br /> (3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.<br /> 3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.<br /> 4. The appellant shall not without the leave of the Court urge or be heard in support or any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.<br /> 5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.<br /> Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.<br /> 6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason...."</p> <p>In OLORUNTOBA-OJU &amp; ORS. V ABDURAHEEM &amp; ORS [2009] 13 NWLR (PT 1157) 83 SC; [2009] LPELR - 2596 (SC), the Apex Court, per ADEKEYE, JSC, echoed thus:<br /> "An appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling.</p> <p>Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against...<br /> According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against ban be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out."</p> <p>I have gleaned through the seven grounds of appeal contained in the Notice of Appeal dated 30th January, 2013 filed by the Appellant as well as the crux of the 1st and 2nd Respondents' preliminary objection. Apparently, the 1st and 2nd Respondents' counsel is objecting against all the grounds of appeal, save ground four therein which has been abandoned by the Appellant. While I am conscious of the settled position of law earlier stated that a ground of appeal must arise from live issues determined by the lower court, a careful study of the Notice of Appeal vis a vis the Ruling of the trial court appealed against by the Appellant before us shows that all the grounds arose from the issues that were considered by the trial court. I am of the firm view that the other grounds, 1, 2, 3, 5, 6 and 7 of the Notice of Appeal with respective their particulars are related. They have been couched in a manner which is clear and devoid of any ambiguity. Even though the 1st and 2nd Respondents' counsel is challenging the competence of the some of the particulars (not all) of grounds 1, 3, 5 and 7, assuming the objections are proper, which I am unable to hold as such, it is obvious that there are other particulars which can sustain the respective grounds as contained in the Notice of Appeal.</p> <p>Evidently, the essence of ground of appeal is indicate the error of law or facts alleged by the Appellant as the defect in the judgment appealed against and upon which the Appellant seeks to set aside. See AKPAN v BOB [2010] 17 NWLR (PT 1223) 421 SC. Therefore, this court will not readily hold out as incompetent, grounds of appeal that essentially states the complaints of the Appellant containing the reasons for which the Appellant considers the decision of the lower court to have been reached wrongly, unless same is not a reflection of the matters dealt with by the trial court or matters which ought to have been considered and pronounced upon having been properly brought before the court. See ADDAX PETROLEUM DEV. (NIG) LTD v DUKE [2010] 8 NWLR (PT 1196) 278.</p> <p>On the whole, the preliminary objection of the 1st and 2nd Respondents fails in its entirety. The Appellant had unilaterally abandoned ground 4 of the Notice of Appeal. Same is hereby struck out with ground 5.</p> <p>With respect to the main appeal, the Appellant formulated five issues for the determination of this appeal thus:</p> <p>1.    "Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation &amp; 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)<br /> 2. Whether the trial court was right in law when it in essence decided the Appellant's motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court. (Ground 2)<br /> 3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v Rofos Navigation &amp; 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)<br /> 4. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)<br /> 5. Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)" On the part of the 1st and 2nd Respondents, two issues were nominated for determination as follows:</p> <p>1. Having regard to the entire facts, circumstances and evidence before the lower court, as well as the proceedings of 21/3/13 and 25/1/13, whether the trial court was not perfectly right in making the orders of 28/1/13 - Grounds 1. 3, 5, 6 and 7.<br /> 2. Whether the appellant's application dated 15/11/12 was decided by the lower court in its ruling of 28/1/13 - Ground 2<br /> For the purpose of determining this appeal, I shall adopt the issues nominated by the Appellant. However, Issue four shall be taken first, then issues one and five taken together as issue two; before addressing issues three and four respectively. The relevant argument by the 1st and 2nd Respondents shall be incorporated herein as well. Moreover, 'the arguments of the Appellant in its reply brief have been carefully taken note of and shall be considered as the need may arise in the resolution of this appeal. Meanwhile, the issues for determination as re-arranged are:</p> <p>1. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)<br /> 2. Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation &amp; 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)</p> <p>AND<br /> Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)<br /> 3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v Rofos Navigation &amp; 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)<br /> 4. Whether the trial court was right in law when it in essence decided the Appellant's motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court. (Ground 2)</p> <p>On the first issue, counsel for the Appellant submits that Order 28 of the Federal High Court (Civil Procedure) Rules, 2009 provides for rules and procedures for the grant of injunctive reliefs by the Court and that all applications for injunctive reliefs at the lower court must by motion or summons and by no other means. He relied on EMORDI v EGBEKE [2011] 9 NWLR (PT 1251) 24 at 29. It is the submission of counsel that the rules of court must be obeyed by both the litigants and the court vide A.T.S.C v QUORUM CONSORTIUM LTD [2009] 1 NWLR (PT 1145) and that where the rules are violated as in this case, the court is duty bound to vitiate all actions flowing from such violation vide AFOLABI v MUDASHIRU [2010] 3 NWLR (PT 1181) 328. It is the submission of counsel that the Respondents' application was made viva voce and not by either motion or summons as required by Order 28. He further contends that the provision of Order 28 (2) informed by the need to avail all parties to an action adequate opportunity to meet the case of an application for injunctive relief before same is granted by the court.</p> <p>In response under Respondents' first issue, learned counsel for the 1st and 2nd Respondents submits that Order 28 is inapplicable to the nature of the application made orally by the Respondents' counsel before the lower court. It is the submission of counsel that the entirety of Order 28 relate to "interlocutory injunctions and interim preservation of property" as can be seen on the heading of the said Order 28 and that the law is trite that headings in statutes must be read alongside the provisions appearing thereunder to arrive at the intendment, import and purport of such a provision vide IBRAHIM v JUDICIAL SERVICE COMMISSION OF KADUNA STATE [1998] 14 NWLR (PT 584) 1; UTC v PAMOTEI [1989] 2 NWLR (PT 103) 244 at 285. Counsel argued that for Order 28 to apply, the Appellant must establish that the injunctive reliefs sought and granted the Respondent is of such nature as to preserve property but that was not the scenario in the instant case. He argued further that Order 26(1) is applicable and the Respondents are permitted to make oral application by that provision wherein the word "may" is used. He cited KATTO v CBN [1991] 9 NWLR (PT 214) 126 at 127; APPEAL NO: SC.37/2015 - EJIKE OGUEBEGO &amp; ANOR v PEOPLES DEMOCRATIC PARTY &amp; ORS (supra) to submit that it is within the exclusive preserve and discretion of the lower court to entertain the Respondents' oral application, more so that it is the duty of every counsel to bring to the court's notice acts done to undermine its majesty and since the court itself has the inherent jurisdiction to suo motu ensure that its authority is not ridiculed. He also relied on EBHODAHGE v OKOYE [2004] 18 NWLR (PT 905) 472 at 500 to 501. He recapped the facts of the instant case before submitting that there is the need for the lower court to assert its authority and deal with every act of disobedience which is capable of bring the court into disrepute and that the issue of disobedience to orders and judgments made by court is one that affects the integrity and powers of the court. He relied on ODU v CHIEF JOLAOSO &amp; ANOR [2003] 8 NWLR (PT 823) 574 at 562, paras E - G. It is also the further submission of counsel that assuming without conceding that Order 28 Rule 2 is applicable, same cannot be interpreted to defeat the course of justice and the Constitution which establish the lower court as the whole essence of the rules of court is to secure the interest of justice and that once an appellate court is satisfied that the proceedings before a trial court was conducted in accordance with the tenets of justice, the court will not interfere unless there is miscarriage of justice. IDUFUEKO v PFIZER PRODUCTS LTD [2014] 1 NWLR (PT 1420) 96 at 113; SIMETEQUIP LTD v OMEGA BANK PLC [2001] 16 NWLR (PT 739) 324 at 340; ABUBAKAR v YAR'ADUA [2008] 4 NWLR (PT 1124) 265 at 511.</p> <p> Now, the summation of the Appellant's argument is that the lower court erred when it failed to abide by Order 28 of the Rules of court by countenancing the Respondents' oral application.</p> <p>While the argument of 1st and 2nd Respondents' counsel on the main is that Order 28 does not apply herein.</p> <p>Let me begin by saying that the proceedings leading to the Ruling resulting in the instant appeal is somewhat of a special nature as distinct from ordinary proceedings at the lower court. As agreed by counsel on behalf of both parties which was well highlighted by the learned trial judge in his Ruling, it was in the process of responding to the application of the Appellant challenging the jurisdiction of the court that the Learned Senior Counsel for the 1st and 2nd Respondent raised the issue of disobedience of the existing order of the lower court and thereupon sought to tender from the bar a copy of the Order of a English court in Claim No 2012, Folio 1300: Access Bank Pic v. Rafus Navigation &amp; 5 Ors allegedly obtained in violation of the existing order of the lower court. See pages 355 to 358 of the record. For better appreciation of the matter at hand, at page 355 to 357 of the record of appeal, the relevant part of the lower court's proceedings of 25th January, 2013 when the oral application was made is as follows:</p> <p>"Wole Olanipekun (SAN): .... We were before this court on 21/11/2013, the court has jurisdiction and can exercise jurisdiction to reinforce an earlier order made on 12/11/2013, there was a restraining order made by this Court. Shortly thereafter the 2 Defendants went to English Court to process or procure another order of 23/1/2013 amongst the orders granted is that we should not appear before this court to address the court or to address the court and this court's order of 12/11/2012 be vacated. In a situation like this, the court had jurisdiction to undo what that has been done in the process of litigation and violation of an existing orders and to arrest a situation where the institution or judiciary of this country is being scandalized and brought into disrepute. See case no 6 on the list of authority. This is the Judgment of Salami J as he then was. That the court can undo what that been done and what is going on nor in violation of the proceedings of this court. See cases no 11 and 12 on the list of authorities. See case number 8. They are taunting the Court with their application. What we have now is a commercial lawlessness case no 7.<br /> I submit that pending the Court ruling and Court having been seized of this matter, immediately to halt this recklessness and scandalizing the Nigerian judiciary in Britain by the Defendants and this is so, in view of the order made by the English Court, this Court shall direct or restrain....<br /> Paul Usoro (SAN): I object to the entirety of the prayers and tendering of the documents. That document which he seeks to tender, it has not been shared with me. I have not seen it. Beyond this, the purport which the document goes beyond the confine of what is before the court.<br /> What is before the court I an application by the 2nd Defendant. The Court should look at the<br /> facts before the Court    Osita Mbamalu: My objection is that the document cannot be tendered from the bar or at all for it to be tendered from the bar or at all for it to be tendered from the bar it has to be certified True copy. See section 104/122 of the evidence Act, it is not certified, it cannot look it. It does not exist. From all the documents properly before the documents properly before the Court. The 2nd Defendant is not a party to the proceedings in the English Court. The application before the Court is a simple application by the 2nd Defendants, urging the Court to respect the wishes of the parties as endorsed in clause 13 of exhibit COS 1.<br /> The only option left to the plaintiff is to respond to that application.<br /> If the Plaintiffs is desirous of invoking the jurisdiction by obtaining an order it must do so by formal application showing the material it is relying upon and same served the Defendant. We have filed a further affidavit which is a counter to that affidavit. It is our case that a breach of the order of the Court is not something that can be raised from the bar. It must be an application properly filed with an affidavit showing the facts of the alleged infringement or breach."</p> <p>Delivering a bench ruling on the above argument of the respective counsel, the learned trial judge held at page 367 to 369 of the record of appeal thus:</p> <p>"This matter was adjourned today for argument with respect to applications dated 19/11/2012 and 15/11/2013 filed by the 1st and 2nd Defendants challenging the jurisdiction of this Court in entertaining this suit in any event. Learned Counsel for the 1st Defendant Paul Usoro (SAN) first argued his application dated 19/11/2013 and Learned Counsel for the Plaintiffs Chief Wole Olanipekun SAN responded and Paul Usoro (SAN) responded again on his reply on points of law, Learned counsel for the 2nd Defendant Osita Mbamalu aligned himself with the argument of Learned counsel for the 1st Defendant. There was no problem. When it was the turn of the Learned counsel for the 2nd Defendant to move his application dated 19/11/2012. Learned counsel actually argued his application. Learned counsel for the 1st Defendant Paul Usoro SAN also canvassed argument in support of the 2nd Defendant's application.<br /> However it was when Chief Wole Olanipekun (SAN) Learned Counsel for the Plaintiffs presented his argument that reference was made to the processes before the Court wherein it is alleged that the Defendants have flouted the positive and subsisting orders of this Court dated 12/11/2012 and 21/1/2013 respectively. Learned SAN made reference to exhibits 1 and 2 attached to his counter affidavit and also sought to tender the order from an English Court dated 23/1/2012 from the bar to show that the order of this Court dated 12/11/2012 and 21/1/2013 have violated violently (sic).</p> <p> I have before me two issues (1) challenge to Court's jurisdiction and also an allegation that a subsisting a positive (sic) order of this Court have been violated by the Defendants. As at now the issue regard the violation of the Court's order is in the realm of allegation. The Court must suspend proceedings and investigate by looking at the proceedings whether its orders have been violated. If it is so then it will either be inform of criminal contempt or civil contempt which have its procedure to get the alleged contempt nor to Court but we have not reached that stage yet. It is still an allegation.</p> <p> See the Supreme Court decision in the case of Ebodaahe v Okoue (2004) 18 NWLR PT 905 P. 494 - 495 where the Supreme Court held that where an act which would impugn on the majesty of the Court and is likely to bring the Court into Odium and disrepute is done, it is not just desirable but essential for the court to first look into the matter of alleged disobedience of Court's order before proceedings (sic) with issue of jurisdiction because according to Supreme Court it is the duty of the Court at all times to guard jealously its orders including judgment and I want to add that the only cherished or valued property of Court of law is its judgment including its order. Where there is an attempt to deprive the Court of law of its most cherished or valued property, the Court has to resist such attempt with all its judicial might. Where a Court of law is deprived of its most valued property, the Court is no longer a Court of law but a toothless bulldog that can only bark and cannot bite...."</p> <p>I have taken the pain to reproduce verbatim the antecedent of the argument of parties at the lower court as well as the bench ruling of the court. This is to give a representation of the proceedings upon which the Ruling was based. It is obvious that the Ruling of the court was based on the oral argument of the 1st and 2nd Respondents' counsel that the positive subsisting order of the lower court has been flouted. While I agree with the Appellant's counsel that application for injunction must be made via motion or summons pursuant to Order 28 of the lower court's Rules, I am however persuaded by the argument of the 1st and 2nd Respondents' counsel that the learned trial judge was right to have countenanced the oral application made by the Respondents in this regard.</p> <p>In the first place, as I have earlier noted, the proceedings before the lower court leading to the instant appeal is sui generis, a special one based on allegation of contempt against one or two parties before the lower court. While it may be argued that the order of the lower court was made in favour of the 1st and 2nd Respondents, the order allegedly violated is "an order of the court" and not necessarily that of the parties (though made in their favour), which possesses the judicial authority and cannot be displaced except by the court itself.<br /> Therefore, where a court is faced with set of facts and circumstances as in the instant case, the court has an inherent power to ensure that the sanctity of the court is not eroded. This it can do on the application of any of the parties, either orally or by formal application. This however does not prejudice the court itself to raise the issue suo motu. To accept the contention of the Appellant that the lower court can only give a Ruling bothering on whether its positive and subsisting order had allegedly been violated upon the filing of an application by the parties vide a motion or summons is to leave the court at the mercy of the litigants in protecting its most prized property - its judgment or orders. It is typical of a court of justice to preserve the integrity of the Judiciary and the sanctity of the order of Court and this can be achieved by whatever means and procedure that falls within the ambit of the inherent powers of the court.</p> <p> To this extent, I am of the firm view that the lower court cannot and should not be said to have erred in the conclusion it reached as per the non-compliance with the provision of Order 28 of the Federal High Court  (Civil  Procedure)  Rules,  2009,  which I earnestly believe will not be utilized as a clog in the exercise of the inherent powers of the court as protecting its sanctity. Therefore, the learned trial judge was right in law in entertaining the reliefs sought by the 1st and 2nd Respondent geared towards compelling obedience to the subsisting order of the court based on oral application made by the 1st and 2nd Respondents. This issue is resolved against the Appellant and in favour of the 1st and 2nd Respondents.</p> <p>On issue two, Appellant's counsel referred to the order made by the trial court to submit that they are incapable of being complied with by the Appellant as the Appellant is not a party to the suit in Claim No 2012, Folio 1300: Access Bank Pic v Rufus Navigation &amp; 5 Ors. Citing UKPO v NGAJI [2010] NWLR (PT 1174); UMEH v IWU [2007] 6 NWLR (PT 1030) 416, he submitted that every court, of law has a duty and responsibility to refrain from making any order which is incapable of being obeyed. Referring to the Exhibits accompanying the motion dated and filed 15/1/13 by the Appellant as well as the counter-affidavit deposed on behalf of the Respondents by one Dayo Adesina, counsel contended that there is nothing before the lower court showing that the Appellant herein is a party to the English suit. He submitted vide USANI v DUKE [2004] 7 NWLR (PT 871) 116 that parties to a suit mean persons whose name appears on record as Plaintiff or Defendant and vide that A.G. LAGOS STATE v A. G. FEDERATION [2004] 18 NWLR (PT 904); UBOM v AMAKA [1999] 6 NWLR (PT 605) 99 that a court will not make an order that will affect the right or interest of a person or body that is not a party to the case; that a court cannot by an order compel a person to discontinue a suit in which he is not a party. Counsel stated that the Ruling of the lower court portends that it is immaterial that the Appellant is not a party to the English suit; that it is sufficient that the Appellant is a beneficiary therein.</p> <p> With respect to whether the lower court acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its orders, Appellant counsel submitted that it is settled law that the decision of a court must be based upon facts and materials placed before it by the parties to the dispute vide ONYIA v ONYIA [1985] 3 NWLR (PT 11) 1; EGWUNNEWU v EGBEAGWU [2007] 6 NWLR (PT 1031) 431. It is the submission of counsel that there is no evidence before the lower court in support of its finding that the Appellant flouted its orders. Relying on ORJI v ORJI [2011] 17 NWLR (PT 1275) 113; I^UAGIE v AMUDA [2006] ALL FWLR (PT 294) 493, he contended that a court is duty bound to base its decision on facts before it. He argued that what the lower court did was to treat the Appellant and 3rd Respondent as one entity and urged vide HAMZA v KURE [2010] 10 NWLR (PT 1203) 630, that this court should intervene and restore justice by setting aside the above speculative decision of the lower court. On his part, 1st and 2nd Respondents' counsel juxtaposed the order of lower court of 12/11/2013 and 21/1/2013 with the order of the English Court made on 16/11/2013 before submitting that a close-examination of the order made by the English Court will reveal that the implication of the order goes beyond mere flouting of the order of the lower court as it is not diametrically in conflict with the orders of the lower court; its very essence is to neutralize and suspend the orders of the properties of the 1st and 2nd Respondents, contrary to the order of the order of the lower court and that the order clearly seeks to render the order of the trial court a nullity and also, in a very serious manner, impinge the powers of not only the trial court but the Nigerian judiciary. He referred to paragraph 187 of the first affidavit of Andrew James Preston at page 253 of the record as well as paragraph 59 of the second witness statement of Andrew James Preston at page 274 of the record and the finding of the lower court at page 467 of the record as to the statement to the effect that the 2nd Respondent herein is above the law and that he has the judiciary of this country in his pocket. It is the submission of counsel that it is beyond dispute that the order of the English court was procured in favour of both the 3rd Respondent and the Appellant herein and that the Appellant cannot feign ignorance of the proceedings of the English Court or deny that it was not a direct beneficiary of the order so made. He contended that the lower court was right in restraining the Appellant from enforcing the said order, since the Appellant was a beneficiary. He relied on U.B.A v JARGABA [2007] 11 NWLR (PT 1045) 247 at 267 before submitting that the Appellant did not at any time in the proceedings before the lower court deny the fact that the order made by the English Court was instigated by both the Appellant and the 3rd Respondent for their joint benefits. He cited AKERE v GOV. OF OYO STATE [2012] 12 NWLR (PT 1314) 240 at 278 that the finding of the lower court is unappealed and remains binding on all parties for all intents and purposes. He further argued that issues relating to obedience of subsisting court orders go to the foundation and integrity of the courts and no court will fold its arms and allow a party under whatever guise to flout its orders. He relied on OBA AMOS BABATUNDE &amp; ORS v MR SIMON OLATUNJI &amp; ANOR [2000] 2 NWLR (PT 646) 557 at 572, per ACHIKE, JSC; APPEAL NO: SC.37/2015 - EJIKE OGUEBEGO &amp; ANOR v PEOPLES DEMOCRATIC PARTY &amp; ORS at 37 to 38 delivered on 29th January, 2016. Referring to the Ruling of the trial court, counsel submitted that decision therein to the effect that the order of the English Court is a violation of its earlier orders has not been appealed against. Counsel argued vide DONA v OGIRI [1998] 3 NWLR (PT 541) 246 at 266 that anyone who is served with or becomes aware of a valid order of court should ensure that he completely obeys it and desist from taking any step that could render the decision a nullity. He urged that the Appellant's arguments be discountenanced as there was sufficient evidence before the lower court upon which the court arrived at the conclusion that the Appellant had flouted its orders and that where the decision of a trial court is based on evidence before it by parties, an Appellate court will not interfere in the findings made by the lower court vide OSUJI v EKEOCHA [2009] 16 NWLR (PT 1166) 81 at 117. He finally urged that this issue be resolved in the favour of the lst and 2nd Respondents' favour. Now, the law is settled and upon which the parties to this appeal readily agreed with that it is the primary function of the trial court to make a finding of fact based on the material evidence led before it and Appellate courts are not in the habit of interfering or disturbing the findings of fact of a trial court unless it is shown that same is perverse or is not in tandem with the evidence on record or the evidence on record is insufficient to warrant the finding of fact as done by such trial court. See MINI LODGE LTD v NGEI [2009] 18 NWLR (PT 1173) 254; AROWOLO v OLOWOOKERE [2011] LPELR - 561 (SC); R-BENKAY NIGERIA LTD v CADBURY NIGERI LTD (2012) LPELR - 7820 (SC). The compliant of the Appellant under the two combined issues here is that the trial court erred when it made certain orders directing the Appellant to carry out certain decisions of the trial court in relation to Claim No 2012 Folio 1300: Access Bank Pic v Rofos Navigation &amp; 5 Ors pending at the English Court and that the court also erred when it held that the Appellant flouted its subsisting order.</p> <p>With respect to the question as to whether the Appellant indeed flouted the subsisting order of the lower court, I have perused the entire content of the record before this court and I found there is no evidence on record upon which the lower court's finding in this regard is predicated. Quite interestingly, at page 460 of the record, the learned trial judge noted thus:<br /> "The cumulative effect of the steps taken by Access Bank Plc being to interfere or tamper with the Plaintiffs' properties and business interest..." At page 478 of the record, he stated:</p> <p>"... I have in this court given several judgments in favour of Access Bank Plc, I wouldn't know what compelled Access Bank Pic to make attempt to ridicule the judiciary of this country before international community...." Clearly, the above positive and definite finding of the trial court that the alleged contemptuous steps were taken by the 3rd Respondent, Access Bank Pic (alone and not with the Appellant), is indeed at variance with its subsequent findings that the Appellant jointly and severally with the 3rd Respondent flouted the subsisting order of the court. A fortiori, it is also obvious from the first Affidavit of Andrew James Preston at page 204 of the record as well as his second witness statement at page 262 evidently relied upon by the trial court, that the information in the depositions contained therein which allegedly was made to 'ridicule the judiciary before the international community' was derived from one Mr. Fatai Oladipo, Corporate Counsel and one Mr. Deji Awodein, a Deputy General Manager, both employees of the 3rd Respondent, Access Bank Pic. See paragraph 2 of page 205 and paragraph 4 of page 263 of the record. While it may be conceded as held that the Appellant is a beneficiary of the order of the English Court; I must say that the fact that a party is a beneficiary of the consequence of the act or conduct of another party is not sufficient enough to hold it liable for the act or omission of the latter party. In the instant case, before the Appellant can be held to have flouted a subsisting order of the lower court, there must be evidence on record to show that it indeed acted in contravention of the order so made. This is not so here. Consequently, I am of the firm view that the finding of the trial court that the Appellant indeed flouted its subsisting order is perverse.</p> <p>The question to be considered then is whether the trial court was right to have ordered the Appellant to carry out certain actions with respect to the order of the English court. A comprehensive resolution of this question calls for the reproduction of the orders made by the learned trial judge on the 28th January, 2013, which is the fulcrum of this appeal. At pages 484 to 485, it is ordered:<br /> 1.    That the 1st and 2nd Defendants shall within 48 hours from today discontinue and file notice of discontinuance of all processes filed in claim no 2012 folio 1300 in the queens bench division of the High Court of Justice England from 12th November 2012 till date being the date the subsisting order was made in this suit in the Plaintiffs favour and<br /> 2.   <br /> 3.    <br /> 4.    evidence of compliance shall also be filed in Court within the prescribed period.<br /> This order herein made includes all processes filed by the Defendants in the Court of any country in the world where the Plaintiffs have assets or business interest and that of their agents, privies and partners.</p> <p>2. The 1st and 2nd Defendants are hereby restrained from enforcing any order, warrant or other process whatsoever in particular the orders made by the English Court on 16/11/2012, 23/1/2013 against assets and properties of Plaintiffs their business interest and their agents or partners either in or outside Nigeria pending the determination of the Plaintiffs' suit herein.<br /> 3. Undertaking - to this effect which shall be filed by the Defendants in this Court within 48 hours from today.</p> <p>As the Appellant's counsel rightly noted, every court is under the bounden duty to ensure that it refrain from making any order or giving any direction to any party, which is incapable of being obeyed by whom it is directed at. Orders of court ought not to be made in vain but must be of such nature that it is susceptible of being obeyed by the subject. In the case at hand, the learned trial judge made sundry orders against the Appellant and the 3rd Respondent on the premise that the Appellant and the 3rd Respondent jointly and severally violated the subsisting order of the court. As earlier noted, the learned trial judge erred in this regard. No evidence on record implicated the Appellant as having flouted the positive order of the court. It is apparent from the evidence on record that the Appellant is not a party to the English suit. Indeed, the English suit in claim No. 2012 Folio 1300 was instituted by the 3rd Respondent against (1) Rofos Navigation Ltd; (2) Xifias Navigation Ltd; (3) Heli Navigation Ltd; (4) Tutbury Maritime Ltd; (5) Capital Oil and Gas Industries Ltd (2nd Respondent herein); (6) Ifeanyi Patrick Ubah (1st Respondent in this suit). Even though, it is conceded that the Appellant is not a party to the English suit, I believe that is not the end of the matter. As the trial court found, which finding has not been appealed against by the Appellant, the Appellant is indeed a beneficiary of the order made by the English court. Perhaps, a reproduction of the relevant order of the English court at page 444 of the record is apposite. It states:</p> <p>1.  Until further order of the Court, the Fifth and Sixth   Defendants and each of them be restrained, whether by itself or through its servants or agents, from continuing or assisting in   the   continuation   of proceedings brought against the Claimant and/or Coscharis Motors Limited (and in particular, but not limited to suit No. FHC/L/CS/1268/12 in the Federal High Court of Nigeria) arising out of or in connection with the Deed executed by the Fifth and Sixth Defendants (including, for the avoidance of doubt, an proceedings concerning the existence, validity or termination of the said Deed (a copy of which is attached hereto) and from instituting or pursuing such proceedings other than by way of proceedings in the High Court in England...." Evidently, the Appellant's contention in this appeal as per the error of the lower court is with respect to the order relating to the discontinuance of the English suit. While I am persuaded to agree with the Appellant's counsel that the Appellant, not being a party to the English suit lacks the locus standi to enforce the order of the lower court, only and specifically as it relates to the discontinuance of the English suit, I am however inclined to say that having regard to the fact that the Appellant is a beneficiary of the order of the English Court, he can validly be restrained, as rightly done by the learned trial judge from enforcing the order of the English Court with respect to which it is a beneficiary. With respect to the counsel for the 1st and 2nd Respondents, the crux of the instant issue is not whether the order obtained from the English court is in conflict with the subsisting order of the lower court; rather, the contention herein is whether the orders made by the learned trial judge as it affects the Appellant was rightly made. Perhaps, 1st and 2nd Respondents' blew muted trumpet with respect to the question as to whether the Appellant can indeed discontinue the pending proceedings before the English court. Nothing can be far from the truth. The Appellant lacks the requisite legal capacity to discontinue the proceeding as it will be deemed a meddlesome interloper by the English court unless it will attempt to make an application to be joined as a party therein, which no doubt will be contrary to the subsisting order of the lower court which the court is forcefully but rightly protecting vide the orders it made on the 28th January, 2013. Nonetheless, having been a beneficiary of the order of the English Court, the learned trial judge was right to have restrained the Appellant from enforcing the said order. This no doubt is conceded by the Appellant as its complaint is directed solely at the order to discontinue under the extant issue. Issue two is partly resolved in favour of the Appellant.</p> <p>On issue three, Learned Appellant counsel submits that a court of law is duty bound to restrict itself within the scope and ambit of claims or reliefs sought by parties before it. He relied on DEBAYO v DOHERTY [2009] 1 NWLR (PT 1123) 505; ACHU v C.S.C. CROSS RIVER STATE [2009] 3 (PT 1129) 475; ORJI v ORJI [2011] 5 NWLR (PT 1241) 571 before submitting that every court would only deal with issues raised by the parties before it and abstain from delving into issues outside the ones raised by the litigants vide NJABA L.G.C. v CHIGOZIE [2010] 16 NWLR (PT 1218) 166 and that a court cannot grant a relief not sought by the parties before it vide SULE v HABU (supra). Learned counsel contended that the orders made by the lower court were completely charitable and not borne out of any claims or applications made by the Respondents. Counsel referred to the Respondents' claim before the lower court made viva voce to submit that the learned trial judge was generous and charitable in granting reliefs and prayers not sought by the Respondents. He further submits that the Respondents' application did not include any prayer or relief requiring the Appellant to discontinue within 48 hours all processes filed in the English suit or in any other part of the world where the Respondents have assets or business interest inclusive of the interest of the Respondents partners. He referred to EKPEYONG v NYONG (1975) 2 SC 71 at 81-82; MAKANJUOLA v BALOGUN [1989] 3 NWLR (PT 108) 192 at 206. Counsel argued that though the lower court has the power to grant any relief incidental and necessary to the reliefs claimed even where such incidental relief has not been expressly claimed vide NNEJI v CHUKWU [1988] 3 NWLR (PT 81) 184 at 208 but that in the instant case the orders made by the trial court was original, radical and in no way incidental to the reliefs sought via voce by the Respondents. He finally submitted that the order of the lower court on the Appellant to discontinue the English suit not being incidental to any of the orders sought on behalf of the Defendants should be struck down by this court.</p> <p>No argument in response to this issue by the 1st and 2nd Respondents in their brief of argument. I had earlier noted that the Appellant is not a party to the English suit and lacks the locus standi to discontinue same. The Appellant did not in any way flout the subsisting order of the lower court to warrant the order that the Appellant should jointly with the 3rd Respondent discontinue the proceedings before the English court. Therefore, it will be an exercise in futility to proceed to consider whether indeed the trial court suo motu ordered the Appellant to discontinue the said suit. I so hold. The extant issue is of no material relevance, hence academic.</p> <p>On issue four, learned Appellant Counsel recapped the facts of the case before submitting that it is clear that it was the motion to dismiss the suit for want of jurisdiction that was moved by the Appellant's counsel on 25/1//13 and thereafter respondent to by the Learned Senior Counsel to the Respondents before the learned trial court in a bench ruling to determine the admissibility of a document sought to be tendered from the bar suspended proceedings to "decide whether the orders of the court have been violated." Counsel argued that a court of law or tribunal has a legal duty to hear and make a decision any court process or motion before it. He cited DANDUME L.G.C v YARO [2011] 11 NWLR (PT 1257) 159; AFRO-CONTINENTAL (NIG) LTD v CO-OPERATIVE ASS. OF PROFS INC [2003] 5 NWLR (PT 813) 303. Counsel stated that at the lower court, there is ample evidence that the Appellant had two motions on notice before the court which the court is obligated to hear and determine and it is not in dispute from the records that the motion being argued by the Appellant when the ruling of 28/1/13 was delivered was the motion to dismiss the case for want of jurisdiction and not the one to vacate the order of injunction made by the court on 12/11/12. It is the submission of counsel that the lower court was under a legal duty not to make findings or pronouncement which would have the effect of determining or prejudging the Appellant's application to vacate the interlocutory injunction which the application had neither been moved nor canvassed by the Appellant. He referred to SULE v HABU [2011] 7 NWLR (PT 1246) 339 before stating that in interlocutory proceedings the court has a duty to avoid deciding the substantive matter vide UBN PLC v ASTRA BUILDERS [2010] 5 NWLR (PT 1186) 1; IDANRE L.G. v GOVT OF ONDO STATE [2010] 14 NWLR (PT 1214) 509; BROWN v BROWN [1994] 7 NWLR (PT 355) 217 as there is a legal duty on every court to refrain from determining an application not yet canvassed while deciding another application on which it has received arguments from the parties, hence a breach of section 36 of the Constitution of the Federal Republic of Nigeria (as amended) and cited TIPPI v NOTANI [2011] 8 NWLR (PT 1249) 285.</p> <p>On their own part, 1st and 2nd Respondent, through their counsel submitted that there is no dispute as to the fact that the Appellant filed two applications before the trial court but that the records before this court clearly shows that it was the application of the Appellant challenging the jurisdiction of the court to entertain the suit that was being considered by the trial court at the time the orders in the Ruling of 28/1/2013 were made and that the Ruling of the court was based on an application made by counsel to the 1st and 2nd Respondents while responding to the Appellant's application to dismiss the suit for want of jurisdiction. It is the contention of counsel that the Ruling did not in any way touch on the Appellant's application seeking to vacate the earlier orders made by the trial court. Counsel recapped the facts leading to the Ruling of the trial court before arguing that there is nothing in the misquoted portion of the Ruling in paragraph 5.09 of the Appellant's brief to suggest even remotely that the trial court reached any decision on the application of the Appellant which was never moved by the Appellant and that the trial court prefaced its said portion with the words: 'Assuming without deciding' not 'conceding' as quoted by the Appellant. He urged that this issue be resolved in the 1st and 2nd Respondents' favour.</p> <p>For the sake of appreciating in context the complaint of the Appellant under this issue, it appears that parties herein are in agreement as to the fact that as at the time the Ruling of the trial court, which is the subject of appeal herein, was delivered on 28th January, 2013, there were two pending applications before the court - one for the setting aside of the subsisting order of the lower court and the other challenging the jurisdiction of the court. Quite naturally, the trial court decided to first consider the latter application as same deals with the competence of the 1st and 2nd Respondents' suit, hence jurisdiction of the court. It was in the course of taking argument on that application on the 25th of January, 2013 that an application was brought by the 1st and 2nd Respondent viva voce as to the violation of the subsisting order of the court. It was on this premise that the learned trial judge decided to suspend hearing on the application in order to determine whether the orders of the court had indeed being flouted by any of the parties to this suit, which thus led to the Ruling delivered on 28th January, 2013. Therefore, it is safe to conclude that as that time there were two motions pending before the lower court - one half moved and the other not yet moved at all.</p> <p> Now, the Appellant's complaint under this issue is that the learned trial judge ought to have restricted himself to the matters before it, that is, as to whether its subsisting orders have been violated and not overreach matters which are aptly covered by applications that are yet to be considered by the court. The relevant part of the Ruling of the trial court that the Appellant is dissatisfied with herein is at page 457 to 458 of the record which is reproduced hereunder:<br /> "If the Defendants were interested in presenting their case before the Court stating grounds that the application should not be granted, the Defendants ought to have checked on the Registrar of the Court on 9/11/2012 to know when the matter was adjourned to. The 1st Defendant has not complained about the hearing of the Plaintiffs' application on 9/11/2012 except that they are contending that the Court did not have jurisdiction to entertain the suit in any event.</p> <p>The 2nd Defendant is however contending that the period under the provisions of Order 25 rule 5 of the Rules of this Court for them to respond to the application did not expire as at the time the application was argued. Assuming without deciding that the period for the 2nd Defendant to respond to the motion did not expire as at 9/11/2012 when the motion was argued, the 2nd Defendant upon being served with the hearing notice of the Court's proceedings of 9/11/2012 ought to have appeared in Court on 9/11/2012 or 12/11/2012 to raise this issue that they were still within time to respond to the application. But they preferred to stay back to enjoy the comfort of their homes and offices and expected the court to wait for them. It is not as if the 2nd Defendant did not know that the motion will be argued on 9/11/2012...."</p> <p>With respect to the learned trial judge, the above pronouncement, no matter how one looks at it, goes beyond the scope of the matter that was being considered by the court, that is, whether its orders of 12th November, 2012 and 21st January, 2013 were flouted by any of the parties before it. A fortiori, the learned trial judge referred to one of the grounds upon which the Appellant had sought to set aside the subsisting orders of the court vide the motion on notice dated 15th November, 2012, which was still pending before the court and upon which no argument had been canvassed by the respective counsel. For better comprehension. the Appellant had by the motion prayed that the order of the court made on 12th of November, 2012 be vacated and set aside on the ground, inter alia that the said order was made in complete violation of Order 26 Rules 5 and 6 of the Federal High Court (Civil) Procedure Rules, 2009 and section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). I am unable to accept the contention of the 1st and 2nd Respondents' counsel that the trial court did not ipso facto consider the Appellant's pending motion that had not been argued before the court. Contrary to the argument of the 1st and 2nd Respondents' counsel, it is not enough for the learned trial judge to have prefaced his pronouncement herein with the words:</p> <p>"Assuming without deciding", but then proceeded to make pronouncements touching on the substance of the application not yet moved. It is elementary principle of adjudication that where a court is faced with circumstances, as in the instant case, where it is obligated to make certain findings and orders, same must be founded on the ground upon which it has received argument from the parties. In essence, the decisions of a court must be restricted to the matters specifically brought before it by the parties but where such matters are raised suo motu by the court, the parties must be heard before any pronouncement is made thereon. See SULE v HABU [2011] 7 NWLR (PT 1246) 339. I must say that the policy behind the principle of law that every court, when dealing with interlocutory matters, must avoid delving into the substantive questions or issues applies in the instant case. Consequently, every court must also be careful to restrict itself to the matters arising under an application and avoid making statements giving the impression that it has made up its mind on other pending applications before the court upon which no argument has been canvassed by the parties. Therefore, the learned erred when he made pronouncement on the Appellant's pending application which upon which no argument had been canvassed by parties thereon. This issue is resolved in favour of the Appellant, The summation of the resolution of this appeal is that issue one is resolved in favour of the 1st and 2nd Respondent, while issue two is resolved partly in favour of the Appellant only to the effect that the learned trial judge erred where he held the Appellant to be jointly liable with the 3rd Respondent with respect to the flouting of the lower court's subsisting order, thereby ordering the Appellant to discontinue the English suit in Claim No. 2012 Folio 1300; issue three is of no material relevance to this appeal and finally, issue four is resolved in the Appellant's favour. On the whole, the Appellant's appeal is meritorious and hereby partly allowed. The Ruling of ABANG J., of the Federal High Court, Lagos delivered on 28th January, 2013 is partly set aside. Parties to bear their own costs.</p> <p><u><strong>SAMUEL CHUKWUDUMEBI OSEJI</strong></u> I had the privilege of reading the draft copy of the judgment just delivered by my learned brother A.O OBASEKI- ADEJUMO JCA.<br /> I agree with his reasoning and conclusion that the appeal be allowed in part.<br /> I also will and hereby allow the appeal in part. I abide by the consequential orders made in the lead judgment including order as to costs.</p> <p><u><strong>JAMILU YAMMAMA TUKUR JCA</strong></u> I read before today the lead judgment just delivered by my learned brother ABIMBOLA OSARUGUE-OBASEKI-ADEJUMO JCA.<br /> I agree with the judgment and adopt it as mine with nothing useful to add.?</p> </div> </div> <div><strong>Counsel</strong> <div>Not available.</div> </div> </div> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-f922aa120d75fac4a40704caa19d50e913628311d6b4892ccb6e370e598ae0b2"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><div> <div> <div> <div> <div> </div> <div> </div> <div> </div> <div> </div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Lagos</strong></div> <div>?</div> </div> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>COSCHARIS MOTORS LLTD</p> <p><strong>and</strong></p> <div><strong>Respondent</strong></div> <p>CAPITAL OIL AND GAS LTD<br /> MR IFEANYI PATRICK UBAH<br /> ACCESS BANK PLS</p> <p> </p> </div> <div> <div> <p><strong>JUDGMENT<br /> (Delivered By ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA)</strong><br /> This appeal arose from the Ruling of the Federal High Court, coram ABANG, J., delivered on the 28th of January, 2013. The brief facts of this case as indicated by the Appellant is that, by a writ of summons dated and filed on the 30th of October, 2012, the 1st and 2nd Respondents as Plaintiffs claimed various reliefs against the Appellant and the 3rd Respondent. Along with the originating processes, the Respondent also filed a motion on notice for interlocutory injunction which was heard and ruled upon by the trial court on 12th November, 2012 wherein an order of interlocutory injunction restraining the Appellant and the 3rd Respondent from interfering with the assets of the 1st and 2nd Respondents, pending the determination of the suit.</p> <p>The Respondent subsequently filed two motions on the 15th November, 2012, praying the lower court inter alia to dismiss the entire suit for want of jurisdiction. On 21st January, 2013, when the Appellant's applications came up for hearing, the Respondents' counsel applied for a short adjournment to enable him to respond to the applications of the Appellant in the suit. On the adjourned date of 25th January, 2013, the Appellant moved its motion challenging the jurisdiction of the lower court. While relying, the 1st and 2nd Respondents' counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Pic v Rofos Navigation Ltd &amp; 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower court made on 12th January, 2012. He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent. The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower court vide a Notice of Appeal dated 30th January, 2013 and filed on 31st January, 2013 on seven grounds. However, the Appellant abandoned ground 4 of appeal as contained in the Notice of Appeal at page 5 of the Appellant's brief.</p> <p>Before this court, parties complied with the Rules of the Court by filing and exchanging briefs. Appellant's brief prepared by Osita Mbamalu (LLM) of Magna Konsults, Ositadinma Chambers is dated 5th June, 2013 and filed 6th June, 2013 but deemed properly filed 25th June, 2015. A Reply brief settled by Osita Mbamalu, Kene Udemezue, C. O Onumaegbu, J. C. Umeh dated 15th March, 2016 and filed 17th March, 2016 but deemed 21st April, 2016 was also filed.<br /> 1st and 2nd Respondents' brief is dated and filed on 11th February, 2016 but deemed 21st April, 2016. Same is settled by Olabode Olanipekun, Bolarinwa Awujoola, Michael Akinleye of Wole Olanipekun &amp; Co. No brief was filed by the 3rd Respondent. Meanwhile, 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 11th February, 2016 urging this court to strike out and/or dismiss the Appellant's appeal. Arguments in respect thereof have been incorporated in the Respondents' brief. Nonetheless, the grounds of the said objection are:<br /> i.    Particular (i) of Ground 1 is argumentative.<br /> ii.    Particular (iii) of Ground 1 is a misrepresentation of the ruling of the lower court.<br /> iii.    Further to (ii) above, particular (iii) of Ground 1 does not arise from the ruling of the lower court.<br /> iv.    Further to (ii) and (iii) above, Ground 1 is a misrepresentation of the decision of the lower court.<br /> v.    Further to (i) - (iv) supra, Issue 1 distilled from Grounds 1 and 6 is incompetent.<br /> vi.    Ground 2 is a misrepresentation of the decision of the lower court.<br /> vii.    Further to (vi) above, Ground 2 does not arise from the decision of the trial court made on 28/1/13.<br /> viii.    Ground 3 is a misrepresentation of the ruling of the lower court.<br /> ix.    Further to (viii) above, Ground 3 does not arise from the judgment of the lower court.<br /> ix.    Particular (vii) of Ground 3 is argumentative.<br /> x.    Particular (iv) of Ground 5 is argumentative.<br /> xi.    Ground 5 does not arise from the judgment of the lower court.<br /> xii.    Particular (i) of Ground 1 adopted in particular (i) of Ground 6 is argumentative.</p> <p>xiii.    Particular (iii) of Ground 1 adopted in particular (i) of ground 6 is a misrepresentation of the lower court's ruling and it does not arise from the said ruling.<br /> xiv.    Further to (xiv) above, Ground 6 is incompetent.<br /> xv.    Particulars (i), (iii) and (iv) of Ground 7 are argumentative.<br /> xvi.    Further to (xvi) above, Ground 7 is argumentative.<br /> xvii.    Further to (i) - (xvii), the appellant's appeal is incompetent.</p> <p>Arguing the preliminary objection, 1st and 2nd Respondents' counsel submitted that ground 1, particular (i) thereto, contains arguments and legal submissions contrary to the clear imperatives of Order 6 Rule 2(3) of the Court of Appeal Rules, 2011 which completely proscribes a ground of appeal from being argumentative, hence provision is made for filing of briefs of arguments. Counsel submitted that ground 1 is a misrepresentation of the ruling of the lower court as particular (iii) which forms the fulcrum of the ground is an unfair attack on the ruling of the lower court and did not arise from same. He relied on KHALIL v YAR'ADUA [2003] 16 NWLR (PT 847) 46 at 478- 479; CBN v OKOGIE [2002] 8 NWLR (PT 768) 48 at 61; LAAH v OPALUWA [2004] 9 NWLR (PT 879) 558 at 566. He referred to page 476 of the record to submit that the said particular represents the lower court as holding that the Appellant has the locus to withdraw a suit having being a beneficiary of an order therefrom. It is the submission of counsel that when the holding of the lower court is placed side by side ground 1 of the Notice of Appeal, it becomes perspicuous that the lower court never made a finding that "the appellant was a beneficiary of the London suit and as such had the locus to withdraw the suit". He cited ILOABUCHI v ILOABUCHI [2000] 5 NWLR (PT 656) 178 at 203; DAILY TIMES v DSV LTD [2014] 5 NWLR (PT 1400) 327 at 351; AFRICAN PETROLEUM PLC v ADENIYI [2011] 15 NWLR (PT 1271) 560 at 585, E - G; LAAH v OPALUWA (supra) at 567 - 570, paras H - B; HONIKA SAWMILL NIG. LTD v HOFF [1994] 2 NWLR (PT 326) 252; ARIBO v CBN [2011] 2 NWLR (PT 1260) 133 at 160, C - F to submit that since issue one was jointly formulated from ground one and six of the notice of appeal, same is rendered incompetent and liable to be struck out. On ground 2, counsel submitted that nowhere in the Ruling of the trial court, did the court make any finding or pronouncement, touching directly or indirectly, on the motion filed by the Appellant, seeking to vacate the orders made on 12/11/2012, as same was never argued by the Appellant. That ground 2 does not relate to any of the reasons given by the trial court as it represents the lower court as having determined its application. At no point did the learned trial judge make the decision stated in particular (iv) of ground 2 of the notice of appeal and that the complaint of the Appellant in the said ground is strange and alien to the decision of the trial court. He relied on ILOABUCHI v ILOABUCHI (supra); BORISHADE v NBN LTD [2007] 1 NWLR (PT 1015) 2,17 at 255; OBA v EGBERONGBE [1999] 8 NWLR (PT 615) 485 at 489; AGBAKA v AMADI [1998] 11 NWLR (PT 572) 16 at 24 to argue that ground 2 and issue 2 are incompetent.</p> <p>On ground 3 and 5 of the Notice of Appeal, counsel argued that apart from the fact ground 3 is argumentative, it is also another characteristic misrepresentation of the lower court's Ruling by the Appellant since same represents the lower court arrived at its decision suo motu granting reliefs not sought by the Respondent. He referred to a portion of the judgment of the lower court at page 357 of the record which he juxtaposed with the orders granted by the lower court, that same exposes ground 3 as a misrepresentation of the lower court's decision since the Respondents clearly sought for the lower court's order to halt the proceedings before the English court or any part of the world. He contended that ground 5 is also a misrepresentation of the lower court's ruling since the said ground complains of the lower court's refusal to follow Order 28 of the Federal High Court Rules (FHC Rules); that the Appellant's responses to Respondents’ application on pages 361 - 362 of the record did not expressly or remotely refer to Order 28. It is the contention of counsel that ground 5 also suffers from the affliction of being argumentative contrary to the Rules of this court and liable to be struck out. He submitted that grounds 3 and 5 as well as the respective issues 3 and 4 distilled therefrom are incompetent and ought to be struck out.</p> <p>On grounds 6 and 7, counsel adopted argument made with respect to the objection to ground 1 in urging this court to strike out ground 6 for being a gross misrepresentation of the lower court's decision and that ground 7 is a classical infringement on the provisions of the rule of this court and urge this court to strike same out. He relied on A.S.T.C v QUORUM CONSORTIUM LTD [2009] 9 NWLR (PT 1145) 1 to submit that based on the forgoing argument and since ground 4 has been abandoned by the Appellant, the entire appeal is left bare and becomes fated for an order dismissing and/or striking out same.</p> <p>Appellant's response to the above objection and argument of the Respondents is contained in the Appellant's Reply Brief. With respect to the competence of ground 1 of the Notice of Appeal, Appellant's counsel submitted that the Respondents did not challenge the competence of ground 1 itself but rather questioned the validity of particulars (i) and (iii) thereto. It is the submission of counsel that the law is that once a ground of appeal is concise and clear and is not argumentative or narrative, the fact that any particular thereunder is argumentative is not sufficient to deny a right of appeal; that what must not be argumentative is the ground of appeal upon which the Appellant intends to rely upon. He cited OBEMBE v EKELE [2000] 10 NWLR (PT 722); GALAUDU v KAMBA [2004] 15 NWLR (PT 895) 31; KARUNA v K.S.H.A [2010] 7 NWLR (PT 1194) 604 before arguing that a single particular without more can sustain a ground of appeal; that even when particulars (i) and (iii) of ground are incompetent, there are still surviving particulars (ii) and (iv) which are competent and can in themselves sustain Ground 1. He further submitted that there is nothing in ground 1 of the Notice of Appeal which is argumentative or contains any argument; that particular (i) merely restate a trite position of the law which is beyond argument or contention, while particular (iii) in itself does not in any way contain a misrepresentation of the Ruling of the lower court. He submitted that the Respondents' counsel failed to consider the entire Ruling delivered by the Honourable trial court and the flow of the court's argument. It is the contention of counsel that the Appellant was not a party to the suit between the 3rd Respondent and the Respondents in London. Counsel argued that implicit in the Ruling of the lower court is the fact that the rationale for the order against the Appellant (2nd Defendant) to withdraw the case in the English Court wherein it was not a party to. He contended that the cases cited by the Respondents does not apply to this case and should be discountenanced.</p> <p>On ground 2, counsel contended that the objection of the Respondents' counsel is misconceived and should be struck out. He referred to pages 86 - 138 of the record with respect to the Appellant's motion on notice dated 15/11/12 wherein the Appellant sought an order vacating and setting aside the order of interlocutory injunction granted in the suit on Monday 12th of November, 2012. He further submitted that there is no doubt that the application being argued by the Appellant at the lower court on 25/1/13 was another application dated 15/11/12 challenging the lower court's jurisdiction to hear the suit and that the Appellant's motion to set aside the order of injunction made by the court was still lying dormant in the court's file awaiting the fate of the Appellant's motion challenging the jurisdiction of the court. He referred to page 458 of the record to submit that the Ruling of the trial court contained therein had conclusively determined and decided the fate of the Appellant's unmoved application dated 15/11/2012. He then submitted that it is not true that ground 2 of the Notice of Appeal did not arise from the Ruling of the lower court. On ground 3 and 5, he argued that both grounds are clear and concise and therefore competent. He argued as per OGBUANYINYA v OKUDO [1979] 6-9 SC 32 that although a ground of appeal must stem from the text of the judgment "ipissima verba", this does not limit the scope of a ground. Citing AKPAN v BOB (supra), counsel submitted that a ground of appeal can arise in a number of situation such as: (a) from the text of the decision appealed against "ipsissima verba"; (b) from the procedure under which the claim or decision was initiated or rendered; (c) from commissions or omissions by the trial court. Counsel urged that all the grounds of appeal filed by the Appellant are competent having arisen from the situations delimited in AKPAN v BOB (supra) and finally, that once a ground of appeal clearly, as in this case, states what the Appellant is complaining about, and there is compliance with the Rules of court, the grounds cannot be described as bad and therefore incompetent vide ADDAX PET DEV (NIG) LTD Vs DUKE [2010] 8 NWLR (Pt. 1196) 278; that the purpose of all rules relating to the formulation of ground of appeal is to ensure that the Respondent is not taken by surprise, and there is no element of surprise on the Respondents in the instant appeal.</p> <p>Finally, he submitted that a ground of appeal alone is enough to sustain an appeal and likewise one competent particular of a ground of appeal can sustain the ground vide EGBIRIKA v STATE [2014] 4 NWLR (PT 1398) 558; TOTAL UPSTREAM NIG. LTD v AIC LTD [2016] 2 NWLR (PT 1497); that even if this court finds any particulars of a ground or a ground defective, such is not enough to vitiate the validity of the entire appeal once there is surviving a single ground of appeal with a valid particular.</p> <p>I have considered the argument of counsel with respect to the objection to the competence of the grounds of appeal contained in the Notice of Appeal filed by the Appellant. Order 6 of the Court of Appeal Rules, 2011 contains provisions relating to the Notice and Grounds of appeal. It reads:</p> <p>1. "...<br /> 2. (1) All appeals shall be by way of rehearing and shall be bought by notice (hereinafter called "the notice of appeal") to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.<br /> (2) Where a ground of appeal alleges misdirection or error of law, the particulars and the nature of the misdirection or error shall be clearly stated.<br /> (3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.<br /> 3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.<br /> 4. The appellant shall not without the leave of the Court urge or be heard in support or any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.<br /> 5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.<br /> Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.<br /> 6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason...."</p> <p>In OLORUNTOBA-OJU &amp; ORS. V ABDURAHEEM &amp; ORS [2009] 13 NWLR (PT 1157) 83 SC; [2009] LPELR - 2596 (SC), the Apex Court, per ADEKEYE, JSC, echoed thus:<br /> "An appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling.</p> <p>Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against...<br /> According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against ban be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out."</p> <p>I have gleaned through the seven grounds of appeal contained in the Notice of Appeal dated 30th January, 2013 filed by the Appellant as well as the crux of the 1st and 2nd Respondents' preliminary objection. Apparently, the 1st and 2nd Respondents' counsel is objecting against all the grounds of appeal, save ground four therein which has been abandoned by the Appellant. While I am conscious of the settled position of law earlier stated that a ground of appeal must arise from live issues determined by the lower court, a careful study of the Notice of Appeal vis a vis the Ruling of the trial court appealed against by the Appellant before us shows that all the grounds arose from the issues that were considered by the trial court. I am of the firm view that the other grounds, 1, 2, 3, 5, 6 and 7 of the Notice of Appeal with respective their particulars are related. They have been couched in a manner which is clear and devoid of any ambiguity. Even though the 1st and 2nd Respondents' counsel is challenging the competence of the some of the particulars (not all) of grounds 1, 3, 5 and 7, assuming the objections are proper, which I am unable to hold as such, it is obvious that there are other particulars which can sustain the respective grounds as contained in the Notice of Appeal.</p> <p>Evidently, the essence of ground of appeal is indicate the error of law or facts alleged by the Appellant as the defect in the judgment appealed against and upon which the Appellant seeks to set aside. See AKPAN v BOB [2010] 17 NWLR (PT 1223) 421 SC. Therefore, this court will not readily hold out as incompetent, grounds of appeal that essentially states the complaints of the Appellant containing the reasons for which the Appellant considers the decision of the lower court to have been reached wrongly, unless same is not a reflection of the matters dealt with by the trial court or matters which ought to have been considered and pronounced upon having been properly brought before the court. See ADDAX PETROLEUM DEV. (NIG) LTD v DUKE [2010] 8 NWLR (PT 1196) 278.</p> <p>On the whole, the preliminary objection of the 1st and 2nd Respondents fails in its entirety. The Appellant had unilaterally abandoned ground 4 of the Notice of Appeal. Same is hereby struck out with ground 5.</p> <p>With respect to the main appeal, the Appellant formulated five issues for the determination of this appeal thus:</p> <p>1.    "Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation &amp; 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)<br /> 2. Whether the trial court was right in law when it in essence decided the Appellant's motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court. (Ground 2)<br /> 3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v Rofos Navigation &amp; 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)<br /> 4. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)<br /> 5. Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)" On the part of the 1st and 2nd Respondents, two issues were nominated for determination as follows:</p> <p>1. Having regard to the entire facts, circumstances and evidence before the lower court, as well as the proceedings of 21/3/13 and 25/1/13, whether the trial court was not perfectly right in making the orders of 28/1/13 - Grounds 1. 3, 5, 6 and 7.<br /> 2. Whether the appellant's application dated 15/11/12 was decided by the lower court in its ruling of 28/1/13 - Ground 2<br /> For the purpose of determining this appeal, I shall adopt the issues nominated by the Appellant. However, Issue four shall be taken first, then issues one and five taken together as issue two; before addressing issues three and four respectively. The relevant argument by the 1st and 2nd Respondents shall be incorporated herein as well. Moreover, 'the arguments of the Appellant in its reply brief have been carefully taken note of and shall be considered as the need may arise in the resolution of this appeal. Meanwhile, the issues for determination as re-arranged are:</p> <p>1. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)<br /> 2. Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation &amp; 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)</p> <p>AND<br /> Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)<br /> 3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v Rofos Navigation &amp; 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)<br /> 4. Whether the trial court was right in law when it in essence decided the Appellant's motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court. (Ground 2)</p> <p>On the first issue, counsel for the Appellant submits that Order 28 of the Federal High Court (Civil Procedure) Rules, 2009 provides for rules and procedures for the grant of injunctive reliefs by the Court and that all applications for injunctive reliefs at the lower court must by motion or summons and by no other means. He relied on EMORDI v EGBEKE [2011] 9 NWLR (PT 1251) 24 at 29. It is the submission of counsel that the rules of court must be obeyed by both the litigants and the court vide A.T.S.C v QUORUM CONSORTIUM LTD [2009] 1 NWLR (PT 1145) and that where the rules are violated as in this case, the court is duty bound to vitiate all actions flowing from such violation vide AFOLABI v MUDASHIRU [2010] 3 NWLR (PT 1181) 328. It is the submission of counsel that the Respondents' application was made viva voce and not by either motion or summons as required by Order 28. He further contends that the provision of Order 28 (2) informed by the need to avail all parties to an action adequate opportunity to meet the case of an application for injunctive relief before same is granted by the court.</p> <p>In response under Respondents' first issue, learned counsel for the 1st and 2nd Respondents submits that Order 28 is inapplicable to the nature of the application made orally by the Respondents' counsel before the lower court. It is the submission of counsel that the entirety of Order 28 relate to "interlocutory injunctions and interim preservation of property" as can be seen on the heading of the said Order 28 and that the law is trite that headings in statutes must be read alongside the provisions appearing thereunder to arrive at the intendment, import and purport of such a provision vide IBRAHIM v JUDICIAL SERVICE COMMISSION OF KADUNA STATE [1998] 14 NWLR (PT 584) 1; UTC v PAMOTEI [1989] 2 NWLR (PT 103) 244 at 285. Counsel argued that for Order 28 to apply, the Appellant must establish that the injunctive reliefs sought and granted the Respondent is of such nature as to preserve property but that was not the scenario in the instant case. He argued further that Order 26(1) is applicable and the Respondents are permitted to make oral application by that provision wherein the word "may" is used. He cited KATTO v CBN [1991] 9 NWLR (PT 214) 126 at 127; APPEAL NO: SC.37/2015 - EJIKE OGUEBEGO &amp; ANOR v PEOPLES DEMOCRATIC PARTY &amp; ORS (supra) to submit that it is within the exclusive preserve and discretion of the lower court to entertain the Respondents' oral application, more so that it is the duty of every counsel to bring to the court's notice acts done to undermine its majesty and since the court itself has the inherent jurisdiction to suo motu ensure that its authority is not ridiculed. He also relied on EBHODAHGE v OKOYE [2004] 18 NWLR (PT 905) 472 at 500 to 501. He recapped the facts of the instant case before submitting that there is the need for the lower court to assert its authority and deal with every act of disobedience which is capable of bring the court into disrepute and that the issue of disobedience to orders and judgments made by court is one that affects the integrity and powers of the court. He relied on ODU v CHIEF JOLAOSO &amp; ANOR [2003] 8 NWLR (PT 823) 574 at 562, paras E - G. It is also the further submission of counsel that assuming without conceding that Order 28 Rule 2 is applicable, same cannot be interpreted to defeat the course of justice and the Constitution which establish the lower court as the whole essence of the rules of court is to secure the interest of justice and that once an appellate court is satisfied that the proceedings before a trial court was conducted in accordance with the tenets of justice, the court will not interfere unless there is miscarriage of justice. IDUFUEKO v PFIZER PRODUCTS LTD [2014] 1 NWLR (PT 1420) 96 at 113; SIMETEQUIP LTD v OMEGA BANK PLC [2001] 16 NWLR (PT 739) 324 at 340; ABUBAKAR v YAR'ADUA [2008] 4 NWLR (PT 1124) 265 at 511.</p> <p> Now, the summation of the Appellant's argument is that the lower court erred when it failed to abide by Order 28 of the Rules of court by countenancing the Respondents' oral application.</p> <p>While the argument of 1st and 2nd Respondents' counsel on the main is that Order 28 does not apply herein.</p> <p>Let me begin by saying that the proceedings leading to the Ruling resulting in the instant appeal is somewhat of a special nature as distinct from ordinary proceedings at the lower court. As agreed by counsel on behalf of both parties which was well highlighted by the learned trial judge in his Ruling, it was in the process of responding to the application of the Appellant challenging the jurisdiction of the court that the Learned Senior Counsel for the 1st and 2nd Respondent raised the issue of disobedience of the existing order of the lower court and thereupon sought to tender from the bar a copy of the Order of a English court in Claim No 2012, Folio 1300: Access Bank Pic v. Rafus Navigation &amp; 5 Ors allegedly obtained in violation of the existing order of the lower court. See pages 355 to 358 of the record. For better appreciation of the matter at hand, at page 355 to 357 of the record of appeal, the relevant part of the lower court's proceedings of 25th January, 2013 when the oral application was made is as follows:</p> <p>"Wole Olanipekun (SAN): .... We were before this court on 21/11/2013, the court has jurisdiction and can exercise jurisdiction to reinforce an earlier order made on 12/11/2013, there was a restraining order made by this Court. Shortly thereafter the 2 Defendants went to English Court to process or procure another order of 23/1/2013 amongst the orders granted is that we should not appear before this court to address the court or to address the court and this court's order of 12/11/2012 be vacated. In a situation like this, the court had jurisdiction to undo what that has been done in the process of litigation and violation of an existing orders and to arrest a situation where the institution or judiciary of this country is being scandalized and brought into disrepute. See case no 6 on the list of authority. This is the Judgment of Salami J as he then was. That the court can undo what that been done and what is going on nor in violation of the proceedings of this court. See cases no 11 and 12 on the list of authorities. See case number 8. They are taunting the Court with their application. What we have now is a commercial lawlessness case no 7.<br /> I submit that pending the Court ruling and Court having been seized of this matter, immediately to halt this recklessness and scandalizing the Nigerian judiciary in Britain by the Defendants and this is so, in view of the order made by the English Court, this Court shall direct or restrain....<br /> Paul Usoro (SAN): I object to the entirety of the prayers and tendering of the documents. That document which he seeks to tender, it has not been shared with me. I have not seen it. Beyond this, the purport which the document goes beyond the confine of what is before the court.<br /> What is before the court I an application by the 2nd Defendant. The Court should look at the<br /> facts before the Court    Osita Mbamalu: My objection is that the document cannot be tendered from the bar or at all for it to be tendered from the bar or at all for it to be tendered from the bar it has to be certified True copy. See section 104/122 of the evidence Act, it is not certified, it cannot look it. It does not exist. From all the documents properly before the documents properly before the Court. The 2nd Defendant is not a party to the proceedings in the English Court. The application before the Court is a simple application by the 2nd Defendants, urging the Court to respect the wishes of the parties as endorsed in clause 13 of exhibit COS 1.<br /> The only option left to the plaintiff is to respond to that application.<br /> If the Plaintiffs is desirous of invoking the jurisdiction by obtaining an order it must do so by formal application showing the material it is relying upon and same served the Defendant. We have filed a further affidavit which is a counter to that affidavit. It is our case that a breach of the order of the Court is not something that can be raised from the bar. It must be an application properly filed with an affidavit showing the facts of the alleged infringement or breach."</p> <p>Delivering a bench ruling on the above argument of the respective counsel, the learned trial judge held at page 367 to 369 of the record of appeal thus:</p> <p>"This matter was adjourned today for argument with respect to applications dated 19/11/2012 and 15/11/2013 filed by the 1st and 2nd Defendants challenging the jurisdiction of this Court in entertaining this suit in any event. Learned Counsel for the 1st Defendant Paul Usoro (SAN) first argued his application dated 19/11/2013 and Learned Counsel for the Plaintiffs Chief Wole Olanipekun SAN responded and Paul Usoro (SAN) responded again on his reply on points of law, Learned counsel for the 2nd Defendant Osita Mbamalu aligned himself with the argument of Learned counsel for the 1st Defendant. There was no problem. When it was the turn of the Learned counsel for the 2nd Defendant to move his application dated 19/11/2012. Learned counsel actually argued his application. Learned counsel for the 1st Defendant Paul Usoro SAN also canvassed argument in support of the 2nd Defendant's application.<br /> However it was when Chief Wole Olanipekun (SAN) Learned Counsel for the Plaintiffs presented his argument that reference was made to the processes before the Court wherein it is alleged that the Defendants have flouted the positive and subsisting orders of this Court dated 12/11/2012 and 21/1/2013 respectively. Learned SAN made reference to exhibits 1 and 2 attached to his counter affidavit and also sought to tender the order from an English Court dated 23/1/2012 from the bar to show that the order of this Court dated 12/11/2012 and 21/1/2013 have violated violently (sic).</p> <p> I have before me two issues (1) challenge to Court's jurisdiction and also an allegation that a subsisting a positive (sic) order of this Court have been violated by the Defendants. As at now the issue regard the violation of the Court's order is in the realm of allegation. The Court must suspend proceedings and investigate by looking at the proceedings whether its orders have been violated. If it is so then it will either be inform of criminal contempt or civil contempt which have its procedure to get the alleged contempt nor to Court but we have not reached that stage yet. It is still an allegation.</p> <p> See the Supreme Court decision in the case of Ebodaahe v Okoue (2004) 18 NWLR PT 905 P. 494 - 495 where the Supreme Court held that where an act which would impugn on the majesty of the Court and is likely to bring the Court into Odium and disrepute is done, it is not just desirable but essential for the court to first look into the matter of alleged disobedience of Court's order before proceedings (sic) with issue of jurisdiction because according to Supreme Court it is the duty of the Court at all times to guard jealously its orders including judgment and I want to add that the only cherished or valued property of Court of law is its judgment including its order. Where there is an attempt to deprive the Court of law of its most cherished or valued property, the Court has to resist such attempt with all its judicial might. Where a Court of law is deprived of its most valued property, the Court is no longer a Court of law but a toothless bulldog that can only bark and cannot bite...."</p> <p>I have taken the pain to reproduce verbatim the antecedent of the argument of parties at the lower court as well as the bench ruling of the court. This is to give a representation of the proceedings upon which the Ruling was based. It is obvious that the Ruling of the court was based on the oral argument of the 1st and 2nd Respondents' counsel that the positive subsisting order of the lower court has been flouted. While I agree with the Appellant's counsel that application for injunction must be made via motion or summons pursuant to Order 28 of the lower court's Rules, I am however persuaded by the argument of the 1st and 2nd Respondents' counsel that the learned trial judge was right to have countenanced the oral application made by the Respondents in this regard.</p> <p>In the first place, as I have earlier noted, the proceedings before the lower court leading to the instant appeal is sui generis, a special one based on allegation of contempt against one or two parties before the lower court. While it may be argued that the order of the lower court was made in favour of the 1st and 2nd Respondents, the order allegedly violated is "an order of the court" and not necessarily that of the parties (though made in their favour), which possesses the judicial authority and cannot be displaced except by the court itself.<br /> Therefore, where a court is faced with set of facts and circumstances as in the instant case, the court has an inherent power to ensure that the sanctity of the court is not eroded. This it can do on the application of any of the parties, either orally or by formal application. This however does not prejudice the court itself to raise the issue suo motu. To accept the contention of the Appellant that the lower court can only give a Ruling bothering on whether its positive and subsisting order had allegedly been violated upon the filing of an application by the parties vide a motion or summons is to leave the court at the mercy of the litigants in protecting its most prized property - its judgment or orders. It is typical of a court of justice to preserve the integrity of the Judiciary and the sanctity of the order of Court and this can be achieved by whatever means and procedure that falls within the ambit of the inherent powers of the court.</p> <p> To this extent, I am of the firm view that the lower court cannot and should not be said to have erred in the conclusion it reached as per the non-compliance with the provision of Order 28 of the Federal High Court  (Civil  Procedure)  Rules,  2009,  which I earnestly believe will not be utilized as a clog in the exercise of the inherent powers of the court as protecting its sanctity. Therefore, the learned trial judge was right in law in entertaining the reliefs sought by the 1st and 2nd Respondent geared towards compelling obedience to the subsisting order of the court based on oral application made by the 1st and 2nd Respondents. This issue is resolved against the Appellant and in favour of the 1st and 2nd Respondents.</p> <p>On issue two, Appellant's counsel referred to the order made by the trial court to submit that they are incapable of being complied with by the Appellant as the Appellant is not a party to the suit in Claim No 2012, Folio 1300: Access Bank Pic v Rufus Navigation &amp; 5 Ors. Citing UKPO v NGAJI [2010] NWLR (PT 1174); UMEH v IWU [2007] 6 NWLR (PT 1030) 416, he submitted that every court, of law has a duty and responsibility to refrain from making any order which is incapable of being obeyed. Referring to the Exhibits accompanying the motion dated and filed 15/1/13 by the Appellant as well as the counter-affidavit deposed on behalf of the Respondents by one Dayo Adesina, counsel contended that there is nothing before the lower court showing that the Appellant herein is a party to the English suit. He submitted vide USANI v DUKE [2004] 7 NWLR (PT 871) 116 that parties to a suit mean persons whose name appears on record as Plaintiff or Defendant and vide that A.G. LAGOS STATE v A. G. FEDERATION [2004] 18 NWLR (PT 904); UBOM v AMAKA [1999] 6 NWLR (PT 605) 99 that a court will not make an order that will affect the right or interest of a person or body that is not a party to the case; that a court cannot by an order compel a person to discontinue a suit in which he is not a party. Counsel stated that the Ruling of the lower court portends that it is immaterial that the Appellant is not a party to the English suit; that it is sufficient that the Appellant is a beneficiary therein.</p> <p> With respect to whether the lower court acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its orders, Appellant counsel submitted that it is settled law that the decision of a court must be based upon facts and materials placed before it by the parties to the dispute vide ONYIA v ONYIA [1985] 3 NWLR (PT 11) 1; EGWUNNEWU v EGBEAGWU [2007] 6 NWLR (PT 1031) 431. It is the submission of counsel that there is no evidence before the lower court in support of its finding that the Appellant flouted its orders. Relying on ORJI v ORJI [2011] 17 NWLR (PT 1275) 113; I^UAGIE v AMUDA [2006] ALL FWLR (PT 294) 493, he contended that a court is duty bound to base its decision on facts before it. He argued that what the lower court did was to treat the Appellant and 3rd Respondent as one entity and urged vide HAMZA v KURE [2010] 10 NWLR (PT 1203) 630, that this court should intervene and restore justice by setting aside the above speculative decision of the lower court. On his part, 1st and 2nd Respondents' counsel juxtaposed the order of lower court of 12/11/2013 and 21/1/2013 with the order of the English Court made on 16/11/2013 before submitting that a close-examination of the order made by the English Court will reveal that the implication of the order goes beyond mere flouting of the order of the lower court as it is not diametrically in conflict with the orders of the lower court; its very essence is to neutralize and suspend the orders of the properties of the 1st and 2nd Respondents, contrary to the order of the order of the lower court and that the order clearly seeks to render the order of the trial court a nullity and also, in a very serious manner, impinge the powers of not only the trial court but the Nigerian judiciary. He referred to paragraph 187 of the first affidavit of Andrew James Preston at page 253 of the record as well as paragraph 59 of the second witness statement of Andrew James Preston at page 274 of the record and the finding of the lower court at page 467 of the record as to the statement to the effect that the 2nd Respondent herein is above the law and that he has the judiciary of this country in his pocket. It is the submission of counsel that it is beyond dispute that the order of the English court was procured in favour of both the 3rd Respondent and the Appellant herein and that the Appellant cannot feign ignorance of the proceedings of the English Court or deny that it was not a direct beneficiary of the order so made. He contended that the lower court was right in restraining the Appellant from enforcing the said order, since the Appellant was a beneficiary. He relied on U.B.A v JARGABA [2007] 11 NWLR (PT 1045) 247 at 267 before submitting that the Appellant did not at any time in the proceedings before the lower court deny the fact that the order made by the English Court was instigated by both the Appellant and the 3rd Respondent for their joint benefits. He cited AKERE v GOV. OF OYO STATE [2012] 12 NWLR (PT 1314) 240 at 278 that the finding of the lower court is unappealed and remains binding on all parties for all intents and purposes. He further argued that issues relating to obedience of subsisting court orders go to the foundation and integrity of the courts and no court will fold its arms and allow a party under whatever guise to flout its orders. He relied on OBA AMOS BABATUNDE &amp; ORS v MR SIMON OLATUNJI &amp; ANOR [2000] 2 NWLR (PT 646) 557 at 572, per ACHIKE, JSC; APPEAL NO: SC.37/2015 - EJIKE OGUEBEGO &amp; ANOR v PEOPLES DEMOCRATIC PARTY &amp; ORS at 37 to 38 delivered on 29th January, 2016. Referring to the Ruling of the trial court, counsel submitted that decision therein to the effect that the order of the English Court is a violation of its earlier orders has not been appealed against. Counsel argued vide DONA v OGIRI [1998] 3 NWLR (PT 541) 246 at 266 that anyone who is served with or becomes aware of a valid order of court should ensure that he completely obeys it and desist from taking any step that could render the decision a nullity. He urged that the Appellant's arguments be discountenanced as there was sufficient evidence before the lower court upon which the court arrived at the conclusion that the Appellant had flouted its orders and that where the decision of a trial court is based on evidence before it by parties, an Appellate court will not interfere in the findings made by the lower court vide OSUJI v EKEOCHA [2009] 16 NWLR (PT 1166) 81 at 117. He finally urged that this issue be resolved in the favour of the lst and 2nd Respondents' favour. Now, the law is settled and upon which the parties to this appeal readily agreed with that it is the primary function of the trial court to make a finding of fact based on the material evidence led before it and Appellate courts are not in the habit of interfering or disturbing the findings of fact of a trial court unless it is shown that same is perverse or is not in tandem with the evidence on record or the evidence on record is insufficient to warrant the finding of fact as done by such trial court. See MINI LODGE LTD v NGEI [2009] 18 NWLR (PT 1173) 254; AROWOLO v OLOWOOKERE [2011] LPELR - 561 (SC); R-BENKAY NIGERIA LTD v CADBURY NIGERI LTD (2012) LPELR - 7820 (SC). The compliant of the Appellant under the two combined issues here is that the trial court erred when it made certain orders directing the Appellant to carry out certain decisions of the trial court in relation to Claim No 2012 Folio 1300: Access Bank Pic v Rofos Navigation &amp; 5 Ors pending at the English Court and that the court also erred when it held that the Appellant flouted its subsisting order.</p> <p>With respect to the question as to whether the Appellant indeed flouted the subsisting order of the lower court, I have perused the entire content of the record before this court and I found there is no evidence on record upon which the lower court's finding in this regard is predicated. Quite interestingly, at page 460 of the record, the learned trial judge noted thus:<br /> "The cumulative effect of the steps taken by Access Bank Plc being to interfere or tamper with the Plaintiffs' properties and business interest..." At page 478 of the record, he stated:</p> <p>"... I have in this court given several judgments in favour of Access Bank Plc, I wouldn't know what compelled Access Bank Pic to make attempt to ridicule the judiciary of this country before international community...." Clearly, the above positive and definite finding of the trial court that the alleged contemptuous steps were taken by the 3rd Respondent, Access Bank Pic (alone and not with the Appellant), is indeed at variance with its subsequent findings that the Appellant jointly and severally with the 3rd Respondent flouted the subsisting order of the court. A fortiori, it is also obvious from the first Affidavit of Andrew James Preston at page 204 of the record as well as his second witness statement at page 262 evidently relied upon by the trial court, that the information in the depositions contained therein which allegedly was made to 'ridicule the judiciary before the international community' was derived from one Mr. Fatai Oladipo, Corporate Counsel and one Mr. Deji Awodein, a Deputy General Manager, both employees of the 3rd Respondent, Access Bank Pic. See paragraph 2 of page 205 and paragraph 4 of page 263 of the record. While it may be conceded as held that the Appellant is a beneficiary of the order of the English Court; I must say that the fact that a party is a beneficiary of the consequence of the act or conduct of another party is not sufficient enough to hold it liable for the act or omission of the latter party. In the instant case, before the Appellant can be held to have flouted a subsisting order of the lower court, there must be evidence on record to show that it indeed acted in contravention of the order so made. This is not so here. Consequently, I am of the firm view that the finding of the trial court that the Appellant indeed flouted its subsisting order is perverse.</p> <p>The question to be considered then is whether the trial court was right to have ordered the Appellant to carry out certain actions with respect to the order of the English court. A comprehensive resolution of this question calls for the reproduction of the orders made by the learned trial judge on the 28th January, 2013, which is the fulcrum of this appeal. At pages 484 to 485, it is ordered:<br /> 1.    That the 1st and 2nd Defendants shall within 48 hours from today discontinue and file notice of discontinuance of all processes filed in claim no 2012 folio 1300 in the queens bench division of the High Court of Justice England from 12th November 2012 till date being the date the subsisting order was made in this suit in the Plaintiffs favour and<br /> 2.   <br /> 3.    <br /> 4.    evidence of compliance shall also be filed in Court within the prescribed period.<br /> This order herein made includes all processes filed by the Defendants in the Court of any country in the world where the Plaintiffs have assets or business interest and that of their agents, privies and partners.</p> <p>2. The 1st and 2nd Defendants are hereby restrained from enforcing any order, warrant or other process whatsoever in particular the orders made by the English Court on 16/11/2012, 23/1/2013 against assets and properties of Plaintiffs their business interest and their agents or partners either in or outside Nigeria pending the determination of the Plaintiffs' suit herein.<br /> 3. Undertaking - to this effect which shall be filed by the Defendants in this Court within 48 hours from today.</p> <p>As the Appellant's counsel rightly noted, every court is under the bounden duty to ensure that it refrain from making any order or giving any direction to any party, which is incapable of being obeyed by whom it is directed at. Orders of court ought not to be made in vain but must be of such nature that it is susceptible of being obeyed by the subject. In the case at hand, the learned trial judge made sundry orders against the Appellant and the 3rd Respondent on the premise that the Appellant and the 3rd Respondent jointly and severally violated the subsisting order of the court. As earlier noted, the learned trial judge erred in this regard. No evidence on record implicated the Appellant as having flouted the positive order of the court. It is apparent from the evidence on record that the Appellant is not a party to the English suit. Indeed, the English suit in claim No. 2012 Folio 1300 was instituted by the 3rd Respondent against (1) Rofos Navigation Ltd; (2) Xifias Navigation Ltd; (3) Heli Navigation Ltd; (4) Tutbury Maritime Ltd; (5) Capital Oil and Gas Industries Ltd (2nd Respondent herein); (6) Ifeanyi Patrick Ubah (1st Respondent in this suit). Even though, it is conceded that the Appellant is not a party to the English suit, I believe that is not the end of the matter. As the trial court found, which finding has not been appealed against by the Appellant, the Appellant is indeed a beneficiary of the order made by the English court. Perhaps, a reproduction of the relevant order of the English court at page 444 of the record is apposite. It states:</p> <p>1.  Until further order of the Court, the Fifth and Sixth   Defendants and each of them be restrained, whether by itself or through its servants or agents, from continuing or assisting in   the   continuation   of proceedings brought against the Claimant and/or Coscharis Motors Limited (and in particular, but not limited to suit No. FHC/L/CS/1268/12 in the Federal High Court of Nigeria) arising out of or in connection with the Deed executed by the Fifth and Sixth Defendants (including, for the avoidance of doubt, an proceedings concerning the existence, validity or termination of the said Deed (a copy of which is attached hereto) and from instituting or pursuing such proceedings other than by way of proceedings in the High Court in England...." Evidently, the Appellant's contention in this appeal as per the error of the lower court is with respect to the order relating to the discontinuance of the English suit. While I am persuaded to agree with the Appellant's counsel that the Appellant, not being a party to the English suit lacks the locus standi to enforce the order of the lower court, only and specifically as it relates to the discontinuance of the English suit, I am however inclined to say that having regard to the fact that the Appellant is a beneficiary of the order of the English Court, he can validly be restrained, as rightly done by the learned trial judge from enforcing the order of the English Court with respect to which it is a beneficiary. With respect to the counsel for the 1st and 2nd Respondents, the crux of the instant issue is not whether the order obtained from the English court is in conflict with the subsisting order of the lower court; rather, the contention herein is whether the orders made by the learned trial judge as it affects the Appellant was rightly made. Perhaps, 1st and 2nd Respondents' blew muted trumpet with respect to the question as to whether the Appellant can indeed discontinue the pending proceedings before the English court. Nothing can be far from the truth. The Appellant lacks the requisite legal capacity to discontinue the proceeding as it will be deemed a meddlesome interloper by the English court unless it will attempt to make an application to be joined as a party therein, which no doubt will be contrary to the subsisting order of the lower court which the court is forcefully but rightly protecting vide the orders it made on the 28th January, 2013. Nonetheless, having been a beneficiary of the order of the English Court, the learned trial judge was right to have restrained the Appellant from enforcing the said order. This no doubt is conceded by the Appellant as its complaint is directed solely at the order to discontinue under the extant issue. Issue two is partly resolved in favour of the Appellant.</p> <p>On issue three, Learned Appellant counsel submits that a court of law is duty bound to restrict itself within the scope and ambit of claims or reliefs sought by parties before it. He relied on DEBAYO v DOHERTY [2009] 1 NWLR (PT 1123) 505; ACHU v C.S.C. CROSS RIVER STATE [2009] 3 (PT 1129) 475; ORJI v ORJI [2011] 5 NWLR (PT 1241) 571 before submitting that every court would only deal with issues raised by the parties before it and abstain from delving into issues outside the ones raised by the litigants vide NJABA L.G.C. v CHIGOZIE [2010] 16 NWLR (PT 1218) 166 and that a court cannot grant a relief not sought by the parties before it vide SULE v HABU (supra). Learned counsel contended that the orders made by the lower court were completely charitable and not borne out of any claims or applications made by the Respondents. Counsel referred to the Respondents' claim before the lower court made viva voce to submit that the learned trial judge was generous and charitable in granting reliefs and prayers not sought by the Respondents. He further submits that the Respondents' application did not include any prayer or relief requiring the Appellant to discontinue within 48 hours all processes filed in the English suit or in any other part of the world where the Respondents have assets or business interest inclusive of the interest of the Respondents partners. He referred to EKPEYONG v NYONG (1975) 2 SC 71 at 81-82; MAKANJUOLA v BALOGUN [1989] 3 NWLR (PT 108) 192 at 206. Counsel argued that though the lower court has the power to grant any relief incidental and necessary to the reliefs claimed even where such incidental relief has not been expressly claimed vide NNEJI v CHUKWU [1988] 3 NWLR (PT 81) 184 at 208 but that in the instant case the orders made by the trial court was original, radical and in no way incidental to the reliefs sought via voce by the Respondents. He finally submitted that the order of the lower court on the Appellant to discontinue the English suit not being incidental to any of the orders sought on behalf of the Defendants should be struck down by this court.</p> <p>No argument in response to this issue by the 1st and 2nd Respondents in their brief of argument. I had earlier noted that the Appellant is not a party to the English suit and lacks the locus standi to discontinue same. The Appellant did not in any way flout the subsisting order of the lower court to warrant the order that the Appellant should jointly with the 3rd Respondent discontinue the proceedings before the English court. Therefore, it will be an exercise in futility to proceed to consider whether indeed the trial court suo motu ordered the Appellant to discontinue the said suit. I so hold. The extant issue is of no material relevance, hence academic.</p> <p>On issue four, learned Appellant Counsel recapped the facts of the case before submitting that it is clear that it was the motion to dismiss the suit for want of jurisdiction that was moved by the Appellant's counsel on 25/1//13 and thereafter respondent to by the Learned Senior Counsel to the Respondents before the learned trial court in a bench ruling to determine the admissibility of a document sought to be tendered from the bar suspended proceedings to "decide whether the orders of the court have been violated." Counsel argued that a court of law or tribunal has a legal duty to hear and make a decision any court process or motion before it. He cited DANDUME L.G.C v YARO [2011] 11 NWLR (PT 1257) 159; AFRO-CONTINENTAL (NIG) LTD v CO-OPERATIVE ASS. OF PROFS INC [2003] 5 NWLR (PT 813) 303. Counsel stated that at the lower court, there is ample evidence that the Appellant had two motions on notice before the court which the court is obligated to hear and determine and it is not in dispute from the records that the motion being argued by the Appellant when the ruling of 28/1/13 was delivered was the motion to dismiss the case for want of jurisdiction and not the one to vacate the order of injunction made by the court on 12/11/12. It is the submission of counsel that the lower court was under a legal duty not to make findings or pronouncement which would have the effect of determining or prejudging the Appellant's application to vacate the interlocutory injunction which the application had neither been moved nor canvassed by the Appellant. He referred to SULE v HABU [2011] 7 NWLR (PT 1246) 339 before stating that in interlocutory proceedings the court has a duty to avoid deciding the substantive matter vide UBN PLC v ASTRA BUILDERS [2010] 5 NWLR (PT 1186) 1; IDANRE L.G. v GOVT OF ONDO STATE [2010] 14 NWLR (PT 1214) 509; BROWN v BROWN [1994] 7 NWLR (PT 355) 217 as there is a legal duty on every court to refrain from determining an application not yet canvassed while deciding another application on which it has received arguments from the parties, hence a breach of section 36 of the Constitution of the Federal Republic of Nigeria (as amended) and cited TIPPI v NOTANI [2011] 8 NWLR (PT 1249) 285.</p> <p>On their own part, 1st and 2nd Respondent, through their counsel submitted that there is no dispute as to the fact that the Appellant filed two applications before the trial court but that the records before this court clearly shows that it was the application of the Appellant challenging the jurisdiction of the court to entertain the suit that was being considered by the trial court at the time the orders in the Ruling of 28/1/2013 were made and that the Ruling of the court was based on an application made by counsel to the 1st and 2nd Respondents while responding to the Appellant's application to dismiss the suit for want of jurisdiction. It is the contention of counsel that the Ruling did not in any way touch on the Appellant's application seeking to vacate the earlier orders made by the trial court. Counsel recapped the facts leading to the Ruling of the trial court before arguing that there is nothing in the misquoted portion of the Ruling in paragraph 5.09 of the Appellant's brief to suggest even remotely that the trial court reached any decision on the application of the Appellant which was never moved by the Appellant and that the trial court prefaced its said portion with the words: 'Assuming without deciding' not 'conceding' as quoted by the Appellant. He urged that this issue be resolved in the 1st and 2nd Respondents' favour.</p> <p>For the sake of appreciating in context the complaint of the Appellant under this issue, it appears that parties herein are in agreement as to the fact that as at the time the Ruling of the trial court, which is the subject of appeal herein, was delivered on 28th January, 2013, there were two pending applications before the court - one for the setting aside of the subsisting order of the lower court and the other challenging the jurisdiction of the court. Quite naturally, the trial court decided to first consider the latter application as same deals with the competence of the 1st and 2nd Respondents' suit, hence jurisdiction of the court. It was in the course of taking argument on that application on the 25th of January, 2013 that an application was brought by the 1st and 2nd Respondent viva voce as to the violation of the subsisting order of the court. It was on this premise that the learned trial judge decided to suspend hearing on the application in order to determine whether the orders of the court had indeed being flouted by any of the parties to this suit, which thus led to the Ruling delivered on 28th January, 2013. Therefore, it is safe to conclude that as that time there were two motions pending before the lower court - one half moved and the other not yet moved at all.</p> <p> Now, the Appellant's complaint under this issue is that the learned trial judge ought to have restricted himself to the matters before it, that is, as to whether its subsisting orders have been violated and not overreach matters which are aptly covered by applications that are yet to be considered by the court. The relevant part of the Ruling of the trial court that the Appellant is dissatisfied with herein is at page 457 to 458 of the record which is reproduced hereunder:<br /> "If the Defendants were interested in presenting their case before the Court stating grounds that the application should not be granted, the Defendants ought to have checked on the Registrar of the Court on 9/11/2012 to know when the matter was adjourned to. The 1st Defendant has not complained about the hearing of the Plaintiffs' application on 9/11/2012 except that they are contending that the Court did not have jurisdiction to entertain the suit in any event.</p> <p>The 2nd Defendant is however contending that the period under the provisions of Order 25 rule 5 of the Rules of this Court for them to respond to the application did not expire as at the time the application was argued. Assuming without deciding that the period for the 2nd Defendant to respond to the motion did not expire as at 9/11/2012 when the motion was argued, the 2nd Defendant upon being served with the hearing notice of the Court's proceedings of 9/11/2012 ought to have appeared in Court on 9/11/2012 or 12/11/2012 to raise this issue that they were still within time to respond to the application. But they preferred to stay back to enjoy the comfort of their homes and offices and expected the court to wait for them. It is not as if the 2nd Defendant did not know that the motion will be argued on 9/11/2012...."</p> <p>With respect to the learned trial judge, the above pronouncement, no matter how one looks at it, goes beyond the scope of the matter that was being considered by the court, that is, whether its orders of 12th November, 2012 and 21st January, 2013 were flouted by any of the parties before it. A fortiori, the learned trial judge referred to one of the grounds upon which the Appellant had sought to set aside the subsisting orders of the court vide the motion on notice dated 15th November, 2012, which was still pending before the court and upon which no argument had been canvassed by the respective counsel. For better comprehension. the Appellant had by the motion prayed that the order of the court made on 12th of November, 2012 be vacated and set aside on the ground, inter alia that the said order was made in complete violation of Order 26 Rules 5 and 6 of the Federal High Court (Civil) Procedure Rules, 2009 and section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). I am unable to accept the contention of the 1st and 2nd Respondents' counsel that the trial court did not ipso facto consider the Appellant's pending motion that had not been argued before the court. Contrary to the argument of the 1st and 2nd Respondents' counsel, it is not enough for the learned trial judge to have prefaced his pronouncement herein with the words:</p> <p>"Assuming without deciding", but then proceeded to make pronouncements touching on the substance of the application not yet moved. It is elementary principle of adjudication that where a court is faced with circumstances, as in the instant case, where it is obligated to make certain findings and orders, same must be founded on the ground upon which it has received argument from the parties. In essence, the decisions of a court must be restricted to the matters specifically brought before it by the parties but where such matters are raised suo motu by the court, the parties must be heard before any pronouncement is made thereon. See SULE v HABU [2011] 7 NWLR (PT 1246) 339. I must say that the policy behind the principle of law that every court, when dealing with interlocutory matters, must avoid delving into the substantive questions or issues applies in the instant case. Consequently, every court must also be careful to restrict itself to the matters arising under an application and avoid making statements giving the impression that it has made up its mind on other pending applications before the court upon which no argument has been canvassed by the parties. Therefore, the learned erred when he made pronouncement on the Appellant's pending application which upon which no argument had been canvassed by parties thereon. This issue is resolved in favour of the Appellant, The summation of the resolution of this appeal is that issue one is resolved in favour of the 1st and 2nd Respondent, while issue two is resolved partly in favour of the Appellant only to the effect that the learned trial judge erred where he held the Appellant to be jointly liable with the 3rd Respondent with respect to the flouting of the lower court's subsisting order, thereby ordering the Appellant to discontinue the English suit in Claim No. 2012 Folio 1300; issue three is of no material relevance to this appeal and finally, issue four is resolved in the Appellant's favour. On the whole, the Appellant's appeal is meritorious and hereby partly allowed. The Ruling of ABANG J., of the Federal High Court, Lagos delivered on 28th January, 2013 is partly set aside. Parties to bear their own costs.</p> <p><u><strong>SAMUEL CHUKWUDUMEBI OSEJI</strong></u> I had the privilege of reading the draft copy of the judgment just delivered by my learned brother A.O OBASEKI- ADEJUMO JCA.<br /> I agree with his reasoning and conclusion that the appeal be allowed in part.<br /> I also will and hereby allow the appeal in part. I abide by the consequential orders made in the lead judgment including order as to costs.</p> <p><u><strong>JAMILU YAMMAMA TUKUR JCA</strong></u> I read before today the lead judgment just delivered by my learned brother ABIMBOLA OSARUGUE-OBASEKI-ADEJUMO JCA.<br /> I agree with the judgment and adopt it as mine with nothing useful to add.?</p> </div> </div> <div><strong>Counsel</strong> <div>Not available.</div> </div> </div> </div> </div></span></div></div> </div> </div> Wed, 28 Jul 2021 08:34:50 +0000 Anonymous 313 at http://nigerialii.org Elias v Federal Republic of Nigeria And Anor (YL 141 of 2015) [2016] NGCA 7 (28 June 2016); http://nigerialii.org/ng/judgment/court-appeal/2016/7 <span class="field field--name-title field--type-string field--label-hidden">Elias v Federal Republic of Nigeria And Anor (YL 141 of 2015) [2016] NGCA 7 (28 June 2016);</span> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Wed, 07/28/2021 - 08:34</span> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><div> <div><strong>In the Court of Appeal</strong></div> </div> <div> <div><strong>Holden at Yola</strong></div> </div> <p> </p> <div> <p><strong>Between</strong></p> <div><strong>Appellant</strong></div> <p>JOHN BABANI ELIAS</p> <p>and</p> <div><strong>Respondent</strong></div> <p>1.    FEDERAL REPUBLIC OF NIGERIA<br /> 2.    AL-AKIM INVESTMENT NIGERIA LTD</p> <p><strong>JUDGMENT<br /> (DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)</strong><br /> The Appellant herein was re-arraigned before the Federal High Court sitting in Yola on 19th May, 2015 on an Amended Charge No. FHC/YL/10C/2013 for the offence of intent to defraud the Government of Adamawa State punishable under Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004. He was charged along with two others, Mohammed Inuwa Bassi and Al-Akim Investment Nig. Ltd (the 2nd Respondent herein).  After a full-fledged trial, Mohammed Inuwa Bassi, (1st accused person), having been found not guilty, was discharged and acquitted; while the Appellant and the 2nd Respondent (2nd and 3rd accused persons before that Court), were found guilty as charged, convicted and sentenced accordingly.</p> <p>A synopsis of the facts of the case before the lower Court is as follows: The 1st Respondent, through the Economic and Financial Crimes Commission (EFCC), initiated an action vide a twenty-eight count charge against four defendants, namely: Boni Haruna (the former Governor of Adamawa State, Mohammed Inuwa Bassi (a one-time Legislative Aide to the former Governor, Boni Haruna, and former Member of the Adamawa State House of Assembly), John Babani Elias (a former Commissioner for Local Government &amp; Chieftaincy Affairs in Adamawa State) and Al-Akim Investment Nig. Ltd (a limited liability company). All the defendants pleaded not guilty to the numerous counts of charge, and trial commenced. The 1st defendant, Boni Haruna, was subsequently discharged on a no-case submission, and trial continued in respect of the other three defendants on an amended four count charge. This Appeal is therefore predicated on the outcome of the trial on this amended four count charge.<br /> The Amended Charge read as follows: </p> <p>AMENDED CHARGE<br /> That you, MOHAMMED INUWA BASSI on or about the 26th of November, 2002 at Yola within the jurisdiction of this Honourable Court did aid JOHN BABANI ELIAS and AL-AKIM INVESTMENT NIGERIA LIMITED to cause the payment of the sum of N31, 500, 000.00 vide a Habib Nigeria Bank Limited draft no: 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in your name, monies meant for Adamawa State Local Governments joint development project and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) of the same Act.</p> <p>COUNT 2<br /> That you, MOHAMMED INUWA BASSI on or about the 23RD of January, 2003 at Yola within the jurisdiction of this Honourable Court did aid JOHN BABANI ELIAS and AL-AKIM INVESTMENT NIGERIA LIMITED to cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no: 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in your name, monies meant for Adamawa State Local Governments joint development project and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) of the same Act.</p> <p>COUNT 3<br /> That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 26th of November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N31, 500, 000.00 vide a Habib Nigeria Bank Limited draft no. 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.</p> <p>COUNT 4<br /> That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 23rd of January, 2003 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no. 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.<br /> When the charge was read to the accused persons, they pleaded not guilty. Thereafter, trial commenced with the prosecution adducing evidence in proof thereof through seven witnesses and twelve exhibits. In their defence, the accused persons also adduced evidence through four witnesses, (inclusive of the 1st and 2nd accused persons), and also offered documentary evidence in the form of two exhibits. At the close of trial, learned Counsel for the accused persons, as well as learned Counsel for the prosecution, in their final summations addressed the lower Court on the issues of facts and law arising there from on 6th July, 2015, and the case was thereafter adjourned for Judgment. </p> <p>Subsequently, after the time constitutionally prescribed for the delivery of Judgment had lapsed, the learned trial Judge invited Counsel to re-adopt their written addresses on 17th November, 2015. The Judgment was finally delivered on 4th December, 2015. Therein, the learned trial Judge found that counts one and two of the Amended Charge against the 1st defendant had not been proved. She therefore discharged and acquitted him of the said two counts of Charge. For the 2nd and 3rd Defendants however, she found that the prosecution had succeeded in proving counts three and four against them. She therefore convicted them as charged. The 2nd Accused was sentenced to a term of ten years imprisonment without an option of fine on each count of charge, sentences to run concurrently, in addition to which he was ordered to refund the sum of N51, 500, 000.00 (Fifty-One Million Five Hundred Thousand Naira) to the coffers of the Adamawa State Government Joint Account Committee; while the 3rd accused, a limited liability company, was sentenced to a fine of N5, 000,000.00 (Five Million Naira), was ordered to be wound up by the Corporate Affairs Commission, and the proceeds from its assets were to be forfeited to the Federal Government of Nigeria.</p> <p>Thoroughly piqued and dissatisfied by this decision, the 2nd accused person promptly filed an Appeal vide his Notice of Appeal, on 11th December, 2015. Therein, he complained on thirteen grounds. He however subsequently filed another Notice of Appeal on 18th January, 2016 wherein he complained on twenty grounds. Since the second Notice of Appeal was also filed within the time prescribed for filing of Appeals by the Rules of this Court, this Notice overtakes the first Notice; and the Appeal is said to be predicated on this latest Notice and the arguments in the Briefs of argument are based thereon. From paragraph 2 of the Notice of Appeal, the following reliefs are sought from this Court:</p> <p>i.    “An order allowing the appeal;<br /> ii.    An order setting aside the judgment delivered on 4th December, 2015 by Honourable Justice Bilkisu Bello Aliyu of the Federal High Court, Yola Division in CHARGE NO. FHC/YL/10C/2013 between FEDERAL REPUBLIC OF NIGERIA VS MOHAMMED INUWA BASSI &amp; 2 ORS;<br /> iii.    An order setting aside the conviction of the Appellant;<br /> iv.    An order setting aside the sentence of the Appellant to 10 years imprisonment and “to return/refund the sum of N51.5 million to the Adamawa State Local Government Joint Account Fund”.<br /> v.    An order discharging and acquitting the Appellant.<br /> vi.    And for such further or other order(s) as this honourable court may deem fit to make in the circumstances.”</p> <p>At the hearing of the Appeal on 07-04-2016, learned Counsel for the Appellant, Rickey Tarfa, S.A.N., appearing with J.O. Odubela Esq., Andrew Malgwi Esq., Rabi Buba (Miss), T.U Danjuma Esq. and A.A. Hamma Esq., adopted the Appellant’s Brief of argument filed on 20-01-2016, as well as the Appellant`s Reply Brief of argument filed on 07-03-2016 (but deemed filed 07-04-2016) as the Appellant’s submissions in the Appeal. He withdrew the first Notice of Appeal filed on 11-12-15 and argued the Appeal based on the second Notice of Appeal filed on 18-01-2016 contained in the supplementary Record of Appeal. In an additional submission, Counsel relied on the following additional authorities in respect of his submissions under issue one: Eguaba V FRN (2004) ALL FWLR (Pt. 2032) 1512 at 1520, paras B-E; and Sonoma V IGP (2013) LPELR-20833(CA) 1 at 32-33, paras D-G. He urged the Court to allow the Appeal and grant the reliefs sought. </p> <p>On his part, learned Counsel for the 1st Respondent, Samuel Okeleke Esq., EFCC, appearing with Chris Mshelia Esq., adopted the 1st Respondent’s Brief of argument filed 04-03-2016 (and deemed filed on 07-04-2016), as the 1st Respondent’s arguments in opposition to the Appeal. He urged the Court to dismiss the Appeal as lacking in merit. Finally, U.D Silas Esq., learned Counsel for the 2nd Respondent who did not file any court process in the Appeal, did not oppose the Appeal.</p> <p>The Appellant having withdrawn the Notice and Grounds of Appeal filed on 11-12-2015, it is accordingly struck out. <br /> In their respective Briefs of argument, learned Counsel for the Appellant distilled seven issues from the twenty Grounds of Appeal for the resolution of the Appeal; and learned Counsel for the 1st Respondent, while agreeing with him on the substance of the issues, adopted them with slight modifications. Thus, being virtually identical in content, except for the expected slants from the angles of opposing parties to the Appeal, the issues crafted by the Appellant are adopted in the resolution of this Appeal. They are set out hereunder as follows:</p> <p>i.    “Whether the trial Court had jurisdiction to have convicted the Appellant based on the Amended Charge dated 27th April, 2015 which did not contain/disclose all the ingredients of the offence, particularly forgery,  prescribed under section 1(2) (b) of the Miscellaneous Offences Act CAP M17 Laws of the Federation of Nigeria, 2004. (Ground 4)<br /> ii.    Whether having regard to the ratio decidendi of Abidoye V F.R.N. (2014) 5 NWLR (Pt. 1399) 30, forgery is no longer part of the ingredients of the offence which ought to be proved by the prosecutor merely because it is not contained in the Amended Charge notwithstanding its prescription in the statute. (Grounds 1, 2, 3 and 5). <br /> iii.    Whether the Judgment of the trial Court ought to be set aside having been based on wrongfully admitted exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B to convict the Appellant in the instant appeal. (Grounds 12, 13 &amp; 14).<br /> iv.    Whether there is any admissible evidence before the trial Court to establish the fact that the Appellant authorized the issuance of the two cheques (Exhibits 71A &amp; 71B) if admissible at all in the instant appeal. (Grounds 7, 8, 9, 10 &amp; 11).<br /> v.    Whether having regard to the entire circumstances of the Amended Charge, the Judgment of the trial Court delivered more than 90 days is reasonable, supported by weight of evidence and ought not to be set aside in the instant appeal. (Grounds 6, 15, 16, 17, 20 &amp; 21).<br /> vi.    Whether the prosecutor proved each of the necessary ingredients of the offence on counts 3 and 4 of the Amended charge beyond reasonable doubt in the instant appeal. (Ground 18).<br /> vii.    Whether the conviction and sentence of the Appellant ought not to be set aside in the instant appeal. (Ground 19).”</p> <p>In the determination of the Appeal, the issues shall be considered in the following order: issues (i) and (ii) together; issues (iii) and (iv) together; issue (v) alone, and issues (vi) and (vii) together.<br /> Issues (i) and (ii):<br /> i.    Whether the trial Court had jurisdiction to have convicted the Appellant based on the Amended Charge dated 27th April, 2015 which did not contain/disclose all the ingredients of the offence,  particularly forgery,  prescribed under section 1(2) (b) of the Miscellaneous Offences Act CAP M17 Laws of the Federation of Nigeria, 2004;</p> <p>AND</p> <p>ii.    Whether, having regard to the ratio decidendi of Abidoye V F.R.N. (2014) 5 NWLR (Pt. 1399) 30, forgery is no longer part of the ingredients of the offence which ought to be proved by the prosecutor merely because it is not contained in the Amended Charge notwithstanding its prescription in the statute.</p> <p>Under issue (i), learned Counsel for the Appellant submits that in a criminal suit, one of the basis of jurisdiction is that a competent charge must disclose all the ingredients of the offence contained in the statute creating the offence. Where a charge is deficient in such, it is incurably bad and does not disclose a prima facie case. Counsel contends that Counts 3 and 4 of the Amended Charge, under which the Appellant was convicted, omitted all the essential ingredients of the offence spelt out under Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation, in particular, the phrase that states as follows: “by virtue of any forged or false cheque, promissory note or other negotiable instrument”.  He also contends that the two counts failed to state both the time and place in Yola when and where the offence was committed. Counsel submits that the combined effect of Section 36(6) (a) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) requires the 1st Respondent to state details of the nature of the offence as defined in the Act. The failure of the 1st Respondent to do so in the Amended Charge has rendered the charge speculative and as a result, is not a valid charge. Counsel therefore urged the Court to resolve this issue in favour of the Appellant. For these submissions, he relies on: Madukolu V Nkemdilim (1962) 1 ALL NLR (Pt. 2) 581 at 589-590; Oloruntoba-Oju V Abdulraheem (2009) 13 NWLR (Pt. 1157) SC 83; Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30 at 57; &amp; M.D.P.D.T. V Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 237.</p> <p>In responding to the submissions of the Appellant, learned Counsel for the 1st Respondent agrees that the essential ingredients of the offence must be disclosed in the charge, and that this is an inalienable right of an accused under Section 36(6) of the Constitution (supra). The Appellant and 2nd Respondent were jointly charged in counts 3 and 4 of the Amended Charge with the offence of ‘causing the payment of money with the intent to defraud’ the Government of Adamawa State punishable under Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act (supra). He submits that the ingredients of the offence under which the Appellant was convicted and sentenced are:</p> <p>i.    knowingly/with intent to defraud the Government of Adamawa State<br /> ii.    cause delivery/payment to himself or any other person of any property or money<br /> iii.    by virtue of any forged or false cheque, promissory note or other negotiable instrument.</p> <p>He submits that both counts 3 and 4 of the Amended Charge contain the time (date) and place of the alleged offence, the names of the Appellant and particulars of the offence, reasonably sufficient to give the Appellant notice of the offence with which he was charged, in conformity with Section 152(1) the Criminal Procedure Act. Any objection to a charge for any perceived irregularity shall be taken immediately after the charge is read over to the accused and not later. In the instant case, there is nothing on Record to show that the Appellant raised any objection when the charge was read to him and he pleaded to it. It is also the law that a charge must disclose the “essential” elements of the offence, and not “all” the ingredients of the alleged offence as canvassed by the Appellant. Further, that in disclosing the date and time of the offence in the charge, ‘time’ connotes the date and not the time of the day in which the offence was committed. In addition, Counsel submits that in drafting a charge, no error in stating the particulars can invalidate the charge except where the accused person was misled, and thus, that the lower Court was right to have assumed jurisdiction. Counsel therefore urged the Court to resolve issue one against the Appellant. He relies on: Amiwero V AGF (2015) ALL FWLR (Pt. 802) at 1742; Timothy V FRN (2008) ALL FWLR (Pt. 402) 1136 at 1153; Timothy V FRN (2013) NWLR (Pt. 1344).</p> <p>In the Appellant’s Reply Brief of argument, learned Counsel for the Appellant submits that the attempt by the 1st Respondent to make a distinction between “essential” and “all” the ingredients of the offence charged, is nothing but semantics. However, that by paragraphs 3.6 and 3.25 of the 1st Respondent’s Brief, it has been admitted that forgery is one of the essential ingredients of the offence charged. He also submits that, contrary to the submissions of the 1st Respondent, time does not connote date, and date and time are not one and the same thing. <br /> In response to the submission that the Appellant pleaded to the incompetent charge without raising any objection thereto, Counsel submits that an issue of jurisdiction can be raised at any time by any of the parties or by the Court suo motu, and for the first time before this Court or even before the Supreme Court. He contends that the reliance on Timothy V FRN (supra) in support of the 1st Respondent’s position is totally inappropriate as the facts are not on all fours. Thus, the issue of whether the Appellant was not misled by the omission in the charge does not arise when the trial conducted is null ab initio. He argues that this is sufficient to base the assertion of miscarriage of justice as the Appellant was convicted based on an incompetent charge. He argues that the error in omitting the essential ingredients of forgery, time and place in the charge is not a mere irregularity, but a fundamental error which goes to the root of the Charge itself. For these submissions, Counsel relies on Olley V Tunji (2013) 10 NWLR (Pt. 1362) 275 at 321, para D; Sani V State (2015) 15 NWLR (Pt. 1483) 522 at 550, paras C-D; Petrojessica Enterprises Ltd V Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 at 693, paras E-F; Mpama V FBN Plc (2013) 5 NWLR (Pt. 1346) 176 at 204; &amp; Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376 at 414, paras D-F.</p> <p>Under issue two, learned Senior Counsel submits that all the parties before the lower Court agreed that one of the fundamental ingredients of the offence charged in counts 3 and 4 of the Amended Charge as stated/defined under Section 1(2) (b) of the Miscellaneous Offences Act (supra) is that money belonging to a Government must be paid “by virtue of any forged or false cheque, promissory note or other negotiable instrument”. Therefore, forgery must be alleged in the charge and also proved. However, contrary to this position taken by the parties on the issue in their final written addresses, the lower Court, relying on Abidoye V FRN (supra), suo motu raised and found in its Judgment that the 1st Respondent had no such burden to prove all the ingredients under Section 1(2) (b) of the Miscellaneous</p> <p>Offences Act (supra) including forgery, except for the ingredients stated in the Amended Charge itself. Counsel contends that this was a new issue as none of the parties had argued that the ingredients of the offence that must be proved are only those contained in the Amended charge. This being a new point, the trial Court ought to have invited the parties to address on the issue before it went on to decide on it. He therefore contends that the finding reached by the lower Court without hearing from the parties runs afoul of the principle of fair hearing and the Appellant was prejudiced thereby. He relies on: Olatunji Adisa (1995) 2 NWLR (Pt. 376) 167 at 183-184; Oshodi V Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 352, paras E-H; INEC V Ogbadibo Local Government (2015) LPELR-24839(SC); &amp; Leaders &amp; Co. Ltd V Bamaiyi (2010) 18 NWLR (Pt. 1225) 329 at 341, paras G-H (SC).</p> <p>As an alternative submission, Counsel submits that the ratio decidendi of Abidoye V FRN (supra) is that there was an additional ingredient added to the charge against the accused which was in excess of the offence as stated in the statute. Since the facts in the Abidoye case were not on all fours with the facts in the instant case, the lower Court erred in its finding thereon. He contends that the Appellant’s right to fair hearing has therefore been abridged as there was non-compliance with Section 36(6) (a) &amp; (12) of the Constitution (supra) which requires the 1st Respondent to state details of the nature of the offence as defined in Section 1(2) (b) of the Miscellaneous Act in the Amended Charge; as well as non-compliance with Section 135 (1) of the Evidence Act.  <br /> It is further submitted that since the Appellant was charged and convicted under Section 1(2) (b) of the Act (supra), which included a forged negotiable instrument as one of the fundamental ingredients of the offence, the omission of forgery in the two counts of charge does not relieve the 1st Respondent of the burden of proving it. Since “a forged negotiable instrument” was not stated in the Amended Charge and it was not proved that the money was delivered by a forged negotiable instrument, Counsel urged the Court to resolve issue two in favour of the Appellant. He relies on Green V Green (2001) 45 WRN 90 at 118-119; (1987) 3 NWLR (Pt. 67) 480 at 500, paras H-D; Dairo V UBN Plc (2007) ALL FWLR (Pt. 392) 1846 at 1886, paras B-C &amp; G; Omega Bank Plc V Govt. of Ekiti State (2007) ALL FWLR (Pt. 386) 658 at 688, paras G-H; Ojo V FRN (2009) ALL FWLR (Pt. 494) 1461 at 1497, paras B-E; Tanko V State (2008) 16 NWLR (Pt. 1114) at 636, paras D-F.</p> <p>In response, learned Counsel for the 1st Respondent submits that the Appellant, in his final written address before the lower Court, argued that the prosecution must prove forgery in all its spheres and proceeded to rely on the case Nigeria Air Force V James (2002) 18 NWLR (Pt. 798) 295. In consequence, the trial Court relying on the principle of stare decisis, applied the decision in Abidoye V FRN (supra) to resolve the issue. By reason of this decision, the lower Court held that the prosecution does not need to prove forgery; and that all the prosecution needs to prove are the ingredients of the offence as specifically charged, irrespective of the provisions of the statute creating the offence. He therefore argues that the lower Court’s reliance on Abidoye V FRN (supra) is not tantamount to raising a fresh issue suo motu; and further submits that the prosecution only needs to prove the charge as laid.  For this, he places reliance on Section 151(4) of the Criminal Procedure Act, Cap C41 LFN 2004, which is in pari materia with Section 195 of the Administration of Criminal Justice Act, 2015. As a result, he contends that the case of Abidoye V FRN (supra) is applicable and was rightly applied by the lower Court. Counsel however submits in the alternative that, where the case of Abidoye V FRN (supra) is found not to be applicable, the 1st Respondent still did prove all the ingredients in the charge.<br /> In a brief reply on point of law, Senior Counsel in the Appellant’s Reply Brief, submits that Section 151 (4) of the Criminal Procedure Act, which is equivalent to Section 195 of the Administration of Criminal Justice Act, 2015 does not say anything contrary to the state of the law.</p> <p>Findings:   </p> <p>I have given a thorough consideration to the submissions of both learned Counsel before the Court. Issue one is premised on the state of the law as provided in Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria (as amended) which provides thus:</p> <p>“36(6) - Every person who is charged with a criminal offence shall be entitled to – </p> <p>(a)    be informed promptly in the language that he understands and in detail of the nature of the offence.”<br /> This provision is quite clear and requires no further external aids to interpret it. Nevertheless, it has received judicial interpretation by many appellate Courts. The conditions set out in Section 36(6) (a) supra include the procedural step of reading over and explaining the charge to the accused in the language which he understands to the satisfaction of the court, which would then call upon him to plead thereto. See Ayodele V State (2010) LPELR-CA/B/291/2008. In Adeniji V State (2001) 13 NWLR (Pt. 375) 390, Katsina Alu, JSC (as he then was) pronounced thus in respect of Section 36(6) (a):</p> <p>“Once the record of the court shows that the charge had been read over and explained to the accused, and the accused pleaded to it before the case proceeded to trial, it is to be presumed that everything was regularly done.”<br /> In the instant case, the record of the trial Court (at page 186 thereof) shows that the plea of the Appellant was taken, after the charge was read and explained to him in English language to the satisfaction of the trial Court, and he stated that he understood it and pleaded not guilty thereto, before the trial of the accused/Appellant commenced. Consequently, on the authority of Adeniji V State (supra) the requirements of Section 36(6) (a) of the Constitution (supra) were complied with.<br /> With all due respect to learned Senior Counsel, there is no requirement in Section 36(6) (a) of the Constitution that all the details of an offence must be set out or specified in a charge for a criminal trial to be valid. It is the law that in drafting a charge, its contents should include the name of the accused person(s), date of the commission of the offence, statement of the offence committed in its ordinary name (not technical), name of the person and of the thing against whom or in respect of which the offence was committed, the enactment and the section thereof allegedly contravened, and the signature of the person drafting the charge. In the instant case, the charge under which the Appellant was tried and convicted satisfied all these requirements of a valid charge. With regard to the submissions on Section 36(12) of the Constitution, the provision states as follows:</p> <p>“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, written law refers to an Act of the National Assembly or a Law of a Staten any subsidiary legislation or instrument under the provisions of a law.”<br /> Having found that the charge is in compliance with the constitutional provisions relied on, I have gone on to examine the actual gripe of the Appellant with the charge. It lies on the assertion that whereas the word “forgery” is used in the provision of the law, it is not so stated in the charge.</p> <p>Learned Senior Counsel for the Appellant has made a huge fuss over the absence of the word “forgery” as well as the use of the word “draft” instead of “cheque” in the Amended charge which, in his view, would bring it in line with the exact wordings of Section 1(2) (b) of the Miscellaneous Offences Act. With due respect, Senior Counsel’s submissions which, while intensely and brilliantly couched, cannot stand in view of the settled law on the issue. It is true that it is not part of our criminal justice system that the subject of a charge be a matter of speculation and inference, as rightly stated in the cases of Olowu V Nigerian Navy (2007) ALL FWLR (Pt. 350) 1278 at 1301, paras C-G (SC); Timothy V FRN (supra); Medical &amp; Dental Disciplinary Tribunal V Okonkwo (2001) FWLR (Pt. 44) 542; (2001) 3 SCNJ 186. The question however is whether in the instant case, the charge was ambiguous and difficult for the accused person to locate the precise offence for which he was charged. </p> <p>At pages 79 to 80 of the printed Record, the learned trial Judge in very clear terms on 07-03-2013, had the charge read out to the Appellant, who affirmatively confirmed that he understood same and pleaded not guilty to it. This process was repeated on 19-05-2015 when the charge was amended. The charge was again read out (at pages 184 to 186 of the Record) and he said he understood it. From all indications, there was no reason to infer or by any stretch of the imagination to suggest that the Appellant was left in any doubt as to the nature of the charge against him. This is also because, by his status as a former Commissioner in Government, he is no doubt a very enlightened person who was certainly aware of all the events happening around him. The case of Abidoye V FRN (supra) requiring the stating of the particulars of the offence in a charge, which was relied on by the learned Senior Counsel for the Appellant does not aid his case, as the circumstances in that case are distinguishable from the facts in the instant case.  In other words, the charge herein is neither defective nor ambiguous.<br /> Certainly, counts 3 and 4 of the Amended Charge under which the Appellant was tried and convicted is in respect of an offence known and well-defined by Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17, Laws of the Federation 2004, being an Act of the National Assembly.</p> <p>For ease of reference, the said provision provides as follows:</p> <p>“1(1) Any person who - <br /> (b)    knowingly and by means of any false representation or with intent to defraud the Federal Government, the Government of any State or of any Local Government, causes the delivery or payment of to himself or any other person of any property or money by virtue of any forged or false cheque, promissory note or other negotiable instrument whether in Nigeria or elsewhere; shall be guilty of an offence and liable on conviction to imprisonment to a term not exceeding 21 years without an option of fine.” (Emphasis supplied)<br /> Also, the contents of the Amended Charge are set out hereunder:    </p> <p>COUNT 3<br /> That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 26th of November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N31, 500, 000.00 vide a Habib Nigeria Bank Limited draft no. 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.</p> <p>COUNT 4<br /> That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 23rd of January, 2003 at Yola, within the jurisdiction of this Honourable Court, with intent to defraud the Government of Adamawa State did cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no. 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.<br /> (Emphasis supplied)</p> <p>It is not a sine qua non of compliance that the exact words in the statute creating the offence must be used in drafting a charge. Where a charge is framed and broken down in words which are easily understandable and brings to the notice of an accused all the essential elements of an offence as spelt out in the law creating the offence, it suffices. Clearly, the substantive law under which the Appellant was charged stipulates that the offence should have been committed via a forged or false document which could be in the nature of a cheque, a promissory note or other negotiable instrument. The word “cheque” in Black’s Law Dictionary, Tenth Edition, pages 287 &amp; 289, unquestionably is inclusive of the word “draft”, to properly accommodate the reference to “draft” in the Amended Charge. For avoidance of doubt, it is defined therein as follows:<br /> “Check. A draft, other than a document draft, signed by the drawer, payable on demand, drawn on a bank, and unconditionally negotiable. The term includes a cashiers’ check or teller’s check. An instrument may be a check even though it is described on its face by another term, such as “money order.” – also spelled cheque. See DRAFT (1).</p> <p>“A check is an unconditional order in writing, addressed to a bank or banker, signed by the person giving it, requiring the bank or banker to pay on demand a sum certain in money to a designated person, or to order, or to bearer. In other words, a check is an instrument in the form of a bill of exchange, drawn on a bank or banker, and payable on demand.” Francis B. Tiffany, Handbook of the Law of Banks and Banking 96 (1912). </p> <p>Thus, the Amended Charge fulfilled the requirements of the law creating the offence by the disclosure therein that the Appellant, with intent to defraud the Adamawa State Government, caused the payment of certain sums of money through named and identified bank drafts into the account of BBB Project. The actual grouse of the Appellant, as I understand it is that, whereas the enactments refer to “forged” or false cheque, promissory note or other negotiable instrument, there is no mention of forgery in the charge and therefore an essential ingredient of the offence has not been stated. With all due respect to learned Senior Counsel, I am of the view that this line of argument is both trifling misconceived. This is because, when the enactment speaks of “a forged or false” cheque, promissory note or negotiable instrument, it is the facts which denote this state of affairs that is expected to be contained in the charge. Once the details in the charge are sufficient to place the accused on notice of what he is being accused of, it satisfies the requirement of the law with regard to the contents of a charge. <br /> In the instant case, the charge quite clearly alleged that the Appellant caused the delivery or payment to himself or to some other person (Al-Akim Investment Company) the various sums of money stated in the charge by means of two Habib Bank drafts, paid into the account of a named person (BBB Project Fund), monies which were meant for some other person (Adamawa State Local Governments Joint Account Fund), with the intent to defraud the said person. Without the necessity of mentioning/reciting “forged” or “false”, the charge was lucid and comprehensible on the offence committed in line with Section 1(2) (b) of the Misc. Offences Act. In addition, whereas the Appellant fixates on the word “forgery”, the provision is clear on the fact that the intent to defraud should be manifested by means of a “forged” or “false” cheque or draft or promissory note or other negotiable instrument. It is commendable that the legal draftsman tried to cover all creative possibilities that could arise in the manifestation of the offence. In the instant case, the two counts of charge revealed that, with intent to defraud, the Appellant through two Habib Bank drafts caused the payment of the stated sums of money into the accounts of the person named therein.</p> <p>When the Amended Charge was read to the Appellant, he clearly stated that he understood it before he pleaded not guilty to same. Thereafter, evidence was adduced through seven witnesses wherein all the ingredients of the offence were again disclosed, before the Appellant entered his elaborate defence through his testimony and that of three other witnesses. There is nothing on the face of the Record, and learned Senior Counsel has not even suggested as much, that the Appellant was misled by any perceived or imagined defect in the Amended Charge. The ingredients of the offence were therefore plainly contained in the charge sufficient to put the Appellant on notice of what he was being charged with, in consonance with the offence defined in the statute. I do so find. As a result, I find no substance in the complaint.</p> <p>Furthermore, Section 166 of the Criminal Procedure Act provides as follows:</p> <p>“No error in stating the offence or particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.”<br /> Where an appellant, (as in the case at hand), fails to show that he was misled by what he perceived as a defect in the charge read to him at the trial, he does complain too late at the appeal stage. This is in keeping with the follow-up section, Section 167 of the same Act which provides:<br /> “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”</p> <p>See Egunjobi V FRN (2012) LPELR-SC.44/2010; Amadi V FRN (2008) 18 NWLR (Pt. 119) 259; Ndukwe V LPDC (2007) 5 NWLR (Pt. 1026) 1. This was also the basis of the holding in the Supreme Court decision of Agbo V State (2006) 6 NWLR (Pt. 977) 545. From these authorities, I am of the considered view that for an appellant to benefit from any defect in a charge, he has the duty/burden to prove to the satisfaction of the court at any stage of the case that the error or omission on the face of the charge had misled the accused/appellant during the trial and had also led to a miscarriage of justice. If the appellant cannot establish how he was misled by the error or how the error led to a miscarriage of justice during the trial, the error or omission in the charge will be regarded as an irregularity which is not fatal to the proceedings. See also Peter V State (2013) LPELR-CA/B/128C/2010; Yabugbe V COP (1992) 4 NWLR (Pt. 232) 153 at 172 &amp; 176.</p> <p>As a result, what this issue boils down to is, whether on the facts in the charge, the Appellant was in any way misled. As aforesaid, to be misled, the defect must be fundamental and misleading. In the instant case, I have already found that the charge was not bad in law since it described a known offence under the Miscellaneous Offences Act Cap M17, Laws of the Federation, 2004. Furthermore, when the charge was read to the Appellant, he said he understood and pleaded not guilty. It is only after testimony and exhibits were received by the Court that it was argued on his behalf that the charge was defective. The time to object to the so-called defects in the omission of “forgery” and “cheque” in the charge was on 19-05-2015, immediately after the charge was read to the Appellant, that is, if he was indeed misled by the purported omission. An objection on appeal is a waste of time and contrary to the clear provision of Section 167 of the Criminal Procedure Act. Any supposed omission in the charge and the use of words which though, were a part of the statute but used interchangeably and in the alternative by use of the disjunctive word “or”, did not prejudice the Appellant as to occasion any miscarriage of justice sufficient to void his trial and conviction. I therefore agree with learned Counsel for the 1st Respondent that any perceived irregularity in the charge did not prejudice the Appellant as to occasion any miscarriage of justice to him.</p> <p>The authorities are consistent in stating that any defect in stating the offence or particulars thereof comes within the saving provision of Section 166 of the Criminal Procedure Act, and the complaint or objection to the charge is belated in view of Section 167 of the Act. This more so as in the instant case, where the accused was ably represented by Counsel. He cannot sit back and expect to use any such defect as a trump card or ace to be used in later proceedings, such as in an appeal. See Timothy V FRN (2012) LPELR-SC.129/2007; Obakolor V State (1991) 1 NWLR (Pt. 165) 113; Essien V COP (1996) 5 NWLR (Pt. 449) 489. </p> <p>Learned Counsel for the Appellant before the lower Court had every opportunity to raise an objection at the trial Court when the charge was amended. This he failed to do. He cannot therefore be heard to complain here. Where a charge is defective, an accused has an unfettered right to object to it. This is because where an accused person pleads not guilty to a charge, he will be deemed to have put himself up for trial. The law is that any objection to a defective charge must be taken immediately after the charge has been read to the accused and not any time after. This is applicable whether the charge is a fresh or an amended charge, as it will be too late in the day for an accused to challenge his conviction on the ground of a defect on the charge at the appellate court, unless the defect complained of is so material as to lead to a miscarriage of justice or goes to jurisdiction and competence of the trial court. This has been the position of the law as articulated by the Supreme Court in Rasheed V The State (2014) LPELR-CA/EK/98C/2013; &amp; Amadi V FRN (2008) 12 SC (Pt. 11) 15; Ayeni V State (2011) LPELR-CA/AE/C.27/2010; Shekete V The Nigeria Air Force (2007) LPELR-CA/L/48/2003. </p> <p>In addition, it is not the business of the Court to provide an escape route for the Appellant as strenuously urged on his behalf. The Appellant did not raise any objection as to any error or defect in the charge when it was read to him. He was ably represented by counsel who is presumed to know the law, and he did plead unequivocally to the charge. I agree with learned Counsel for the 1st Respondent that the objection has come too late. As stated above, the Appellant has also tried to cling onto the principle of fair hearing under Section 36(6) &amp; (12) of the Constitution. I cannot fathom any violation of these provisions being touted on behalf of the Appellant, as clearly the Appellant was never misled by any perceived omission in the charge.</p> <p>Besides, it is not every irregularity that can nullify entire proceedings. An irregularity which does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity will not be countenanced. In the case at hand, the Appellant did not complain about the alleged defect in the charge until the suit was on appeal to this Court. He took part in all proceedings before the trial Court, thus in my humble view, it is too late in the day for him to complain. See Kossen (Nig) Ltd V Savannah Bank of Nig. Ltd (1995) LPELR-SC.209/89.</p> <p>The main argument under issue two is rested on the plank that the learned trial Judge suo motu raised the issue of whether the charge against the Appellant could stand without the ingredient of forgery stated therein when it was an essential part of the substantive law under which the Appellant was charged, tried and convicted. That she proceeded to make findings on this issue without inviting counsel to address the court on it, thereby, breaching the right of the Appellant to a fair hearing. The 1st Respondent’s answer to this is simple. He contends that it was the Appellant’s Counsel who raised this issue of forgery being a necessary ingredient of the offence, which led the lower Court to make findings thereon in its Judgment. Therefore, that the issue was not raised suo motu by the lower Court. In the light of these arguments, I have closely examined the printed record of the lower Court and I find that the submissions of learned Counsel for the Appellant is not borne out by the Record. In the Appellant’s final written address before the lower Court, spanning pages 14-40 of the printed Record, the Appellant formulated two issues for the consideration of the lower Court. Under issue one, specifically at pages 30 to 32 thereof, learned Counsel for the Appellant submitted that the prosecution failed to prove that the bank drafts, by which it alleged that the 2nd and 3rd Respondents paid money into the BBB Project account, were forged or false. He further submitted that the forgery or falsity of the instrument by virtue of which payment is made, is an essential and integral part of the law within the contemplation of Section 1(2) (b) of the Miscellaneous Offences Act Cap M17, Laws of the Federation, 1990. Consequently, that the prosecution must prove that the said bank drafts were forgeries or false drafts. He even went on to set out the ingredients for the proof of forgery and reeled out some authorities on the point, chief among which was Alake V State (1991) 7 NWLR (Pt. 505) 567. He raised the query: </p> <p>“The question to ask at this stage is this: based on the evidence before the Court, has the prosecution established that the Habib Bank drafts are forged?” <br /> He proceeded to answer his rhetorical question in the following way (at page 31 of the Record):</p> <p>“We submit my lord, that throughout the length and breadth of the oral and documentary evidence before the Court, there is no scintilla of evidence led in proof of this element of the offence. The prosecution has therefore failed to prove that the drafts are forgeries or false.”  <br /> In a direct response to this submission, the 1st Respondent submitted in its final written address inter alia thus (at pages 56-57 of the Record):</p> <p>“The 3rd defendant in its written address had erroneously opined that the fulcrum of Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation, 2004 which created the offences in counts 3 and 4 of the amended charge relate to forging and uttering negotiable instruments [the heading of the section] and went on to suggest that for the prosecution to sustain those counts, it had to implicitly proof (sic) forgery and uttering negotiable instruments. We submit with utmost respect to the learned Counsel that he was under misapprehension that forgery and uttering had to be proved before counts 3 and 4 can be proved. All the prosecution was expected to establish is, the forgery or falsity of the cheque used, which we had aptly demonstrated already.”</p> <p>He further relied on Section 3(2) of the Interpretation Act, Cap 123 LFN, 2004 to submit that the heading or marginal note to an enactment does not form a part of the enactment and is intended for convenience of reference only. It was therefore based directly on the issue of whether or not forgery was a necessary ingredient to be proved by the prosecution that the lower Court weighed in to resolve the issue in its Judgment, particularly at pages 276 to 279 of the Record. It relied on Section 151(4) of the Criminal Procedure Act, Cap C41 LFN 2004, Section 195 of the Administration of Justice, Act, 2015 and Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30 at 55-56 per Ngwuta, JSC. The learned trial Judge, after considering the issue, rightly resolved it thus in these terms inter alia:</p> <p>“Therefore, the onus or the burden on the prosecution in this case is to prove the ingredients of the offence as laid in the charge and not all the ingredients of the offence as stated in the section creating the offence. This is quite common sense because as it can be seen, the section creating the offences has given wider circumstances under which an offence can be charged under the section. It is not logical to say the prosecution must prove all the circumstances that an offence can be committed under the creating section, unless all the ingredients in the section are laid in the charge. Applying the principle of law said (sic) down by the Supreme Court above to this case now before me, prosecution must prove the ingredients of the offence as stated on the amended charge dated 27th April, 2015... Forgery is not stated as part of the ingredients of the offences of (sic) the defendants are charged with. There is no obligation placed on the prosecution to prove this ingredient not included in any of the four counts charge.”</p> <p>In view of all the above it is apparent that the Appellant is at best mistaken in his perception of the sequence of events before the lower Court when he accused the learned trial Judge of suo motu deciding an issue that was not placed before her, and without inviting parties to address it on the issue. I sustain the stand taken by the trial Court without any equivocation. To cut a long story short, I resolve issues (i) and (ii) in favour of the 1st Respondent. </p> <p>Issues (iii) and (iv):</p> <p>iii)    Whether the Judgment of the trial Court ought to be set aside having been based on wrongfully admitted exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B to convict the Appellant in the instant appeal.</p> <p>AND </p> <p>iv)    Whether there is any admissible evidence before the trial Court to establish the fact that the Appellant authorized the issuance of the two cheques (Exhibits 71A &amp; 71B) if admissible at all in the instant appeal.<br /> Learned Counsel for the Appellant contends that the lower Court heavily relied on Exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B, which are inadmissible, to convict the Appellant. He contends that Exhibit PW6B, the extra-judicial statement of the 1st accused person made to officers of the EFCC, is a public document which, by virtue of Section 102 of the Evidence Act, 2011, needed to be certified before it could be admissible in evidence. Similarly, that Exhibits PW6C1 and PW6C2, being statements of accounts prepared by bankers and generated from a computer, were inadmissible because:</p> <p>a)    the documents were initially withdrawn after an objection was taken to their admissibility, and should have been rejected in evidence;<br /> b)    without laying foundation, they were re-tendered through PW6 who was not their maker, and admitted in evidence contrary to Section 83 of the Evidence Act (supra);<br /> c)    they were made from entries in a banker’s book and the conditions for their admissibility as laid down in Section 90(1) (e) of the Evidence Act (supra) were not met; and<br /> d)    there is no competent certificate of compliance showing that the said documents are admissible under Section 84 of the Evidence Act (supra), notwithstanding the purported certificate attached thereto. </p> <p>Regarding Exhibits PW7A and PW7B, Counsel submits that they were cheques tendered through a witness who was before the lower Court on a subpoena; as such the Appellant was not afforded an opportunity to cross examine the makers of the documents and this was contrary to Sections 83 and 85 of the Evidence Act (supra), and it breached the Appellant’s right to fair hearing.</p> <p>Counsel therefore submits that the reliance of the lower Court on these exhibits to convict the Appellant occasioned a miscarriage of justice. However, in the event that any of the exhibits are admissible, the lower Court ought not to have attached any weight to them. For these submissions, Counsel relies on the following authorities: GTB Plc V TBIK Inv. Ltd (2005) 13 WRN 25 at37, 40-41; Oguntayo V Adelaja (2009) ALL FWLR (Pt. 495) 1626 at 1650; Jallco V Owoniboys (1995) SNCJ 256; (1995) 4 NWLR (Pt. 391) 534 at 546, paras G-H; Opolo V The State (1977) ALL NLR 312 at 316; Narindex Ltd V NIMB Ltd (2001) 4 SCNJ 208; (2001) 26 WRN 83 at 97; IBWA Ltd V Imano Ltd (2001) 3 SCNJ 160; (2001) 17 WRN 1 at 18-19; UBN V Dawodu (2003) FWLR (Pt. 180) 1487 at 1497, paras E-H; People of Lagos State V Umaru (2014) 7 NWLR (Pt. 1407) 584 at 612-613, paras H-H; Oseni V Oniyide (1999) 13 NWLR (Pt. 634) 258 at 271-272, paras A-A; Kola V Potiskum (1998) 3 NWLR (Pt. 540) 11 at 15-16, paras G-F; Adenuga V Okelola (2008) ALL FWLR (Pt. 398) 292 at 307; (2008) 15 WRN 69 at 86; Fatilewa V State (2008) 12 NWLR (Pt. 1101) 518 at 529, paras D-G; Olayinka V State (2007) 45 WRN 147 at 168. He urged the Court to resolve issue three in favour of the Appellant.</p> <p>In response, learned Counsel for the 1st Respondent submits that relevancy is the cardinal principle that governs admissibility of documents. Once evidence is probative of the facts in issue, it is considered to be relevant and therefore admissible. He argues that Exhibit PW6B, an extra judicial statement to the EFCC, comes within the purview of admissible documents under Section 48 of the Evidence Act (supra). In the event that it is found to be a public document within the realm of Section 102 of the Evidence Act (supra), Counsel submits that, by virtue of Sections 85, 86(1) and 88 of the Evidence Act, public documents in their original form are admissible as primary evidence. Sections 89 (e), 90(1) (c) and 104 of the Evidence Act (supra) relates only to secondary evidence of a public document, and is thus not applicable to Exhibit PW6B.</p> <p>In respect of Exhibits PW6C1 and PW6C2, (Guaranty Trust Bank Plc statements of accounts for the  BBB Project account and the 2nd Respondent’s account respectively), they were first sought to be tendered through PW5, but were withdrawn by the 1st Respondent without joining issues to the objection raised by the Appellant`s Counsel. The submission that, at this juncture, the document should have been rejected, is not in tandem with the decision of the Supreme Court in Oguntayo V Adelaja (2009) 15 NWLR (Pt. 1163) 150 at 173, paras F-G, 191 paras D-G, relied upon and wrongly misapplied by the Appellant.</p> <p>Counsel submits that the documents were later re-tendered through PW6, one of the investigating Police officers, after proper foundation had been laid, in compliance with Section 84(4) of the Evidence Act (supra). Substantial compliance with Section 90(1) (e) of the Act (supra) is what is required. Also, Section 83(2) of the Act (supra) provides for circumstances when documents may be tendered through persons who are not their makers; and Exhibits PW6C1 and PW6C2 complied with the conditions in this provision. The evidence of PW6 stating that the investigative team wrote letters of investigative activity to GTBank Plc requesting for Exhibits PW6C1 and Exhibits PW6C2 and such were received from the Bank, was sufficient foundation to their origin, more so that GTBank Plc, the maker of the documents, provided a certificate of identification through its compliance officer, which is sufficient compliance with Section 84(4) of the Evidence Act (supra). These certificates of compliance issued for Exhibits PW6C1 and PW6C2 contained the names of the respective account owners and account numbers of the respective accounts, therefore giving sufficient identification to in respect of the accounts referred to. Consequently, the Exhibits were admissible and rightly admitted in evidence by the lower Court.</p> <p>As for Exhibits PW7A and PW7B, original copies of Habib Bank cheques in the sums of N31.5 million and N25.5 million tendered by an official of the Bank on subpoena, Counsel submits that by virtue of Section 218 of the Evidence Act (supra) such documents which relate to facts in issue, are validly admitted and not merely for identification purposes, but to assist the Court in deciding the case before it. He points out that, secondary copies of these cheques were already before the lower Court, having been tendered through PW1 as part of Exhibits PW1A and PW1B. Therefore, the trial Court by admitting Exhibits PW7A and PW7B in evidence, acted in substantial compliance with Sections 83, 85 and 218 of the Evidence Act (supra). Further, although the Appellant was unable to cross-examine the PW7 who produced the said cheques on subpoena, (Section 219 of the Act (supra), the Appellant cross-examined other prosecution witnesses, i.e. PW1, PW4 and PW6, on Exhibits PW1A and PW1B which had secondary copies of Exhibits PW7A and PW7B attached to them. Thus, the Appellant cannot complain that his right to fair hearing had been breached. </p> <p>Counsel therefore submits that Exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B were tendered and admitted in evidence in substantial compliance with the law, and no miscarriage of justice has been occasioned to the Appellant. He urged the Court to resolve issue three in favour of the 1st Respondent.</p> <p>In respect of issue four, learned Senior Counsel for the Appellant submits that, even assuming Exhibits PW7A and PW7B were admissible, there is no further evidence to show that the Appellant authorised their issuance. The trial Court took into account only the aspect of the evidence of the PW4 where he stated that the money in the two cheques were not used for the purpose for which they were meant; and ignored the other aspect which was favourable to the Appellant to the effect that all the twenty-one Local Government Chairmen, not the Appellant, decided that the money be transferred to the 2nd Respondent. Also, by the evidence of PW4 as well as that of PW1, it was the Permanent Secretary of the Ministry of Local Government and Chieftaincy Affairs, the accounting officer, who authorised the payments. This officer was not called as a witness to testify as to whether or not it was the Appellant who gave him the instruction to transfer the money on the two cheques to the 2nd Respondent. This is more so as no minutes of meeting were tendered to show that the Appellant chaired the meeting and authorised the issuance of the cheques to the 2nd Respondent. Counsel therefore submits that there was no evidence before the lower Court to link the Appellant with the transfer or diversion of funds to the 2nd Appellant.</p> <p>Also, Senior Counsel contests the acceptance by the lower Court of the evidence of PW6 that no money leaves the Joint account without the Appellant’s authorisation on the basis that he was not cross-examined on the point. He says this has breached his right to fair hearing. In addition, oral evidence is not admissible to prove the contents of a document. Furthermore, that Section 167 (d) of the Evidence Act (supra) should be invoked against the 1st Respondent for its failure to tender the certificate and letters of authorization stated by PW6 which showed that the Appellant signed or approved any withdrawal for Adamawa State Local Government Joint Account (JAC), and the petitions received by EFCC which formed the basis of the complaint. Counsel contends that the evidence of PW6 is inadmissible hearsay of what the investigation revealed, having testified as part of a larger investigative team, and not being an eyewitness to the events he testified to.</p> <p>Counsel therefore submits that there is no direct and credible evidence to show that the Appellant authorised the issuance of the cheques; and that the circumstantial evidence relied upon by the lower Court is not cogent, credible, reliable, admissible, adequate and compelling enough to support the lower Court`s inference that the Appellant authorised the issuance of the two cheques. Reliance was placed on the following decisions for these submissions: Tegwonor V State (2008) 1 NWLR (Pt. 1069) 630 at 664, paras E-F; Adeyemi V State (2011) 5 NWLR (Pt. 1239) 1; Fagbenro V Arobadi (2006) 19 WRN 1 at 35; Nwocha V State (2002) 9 NWLR (Pt. 1306) 571 at 589, paras C-F; The People of Lagos State V Umaru (supra) at 612, paras A-B and F-G; Uwagboe V State (2006) Vol. 51 WRN 119 at 141; Fagbenro V Arobadi (supra); Green V Green (supra); Dairo V UBN Plc (supra); Omega Bank Plc V Government of Ekiti State (supra); Archibong V State (2007) 14 NWLR (Pt. 1000) 349 at 376, paras B-E; Ukorah V State (1977) 4 SC (Pt. 111) 167 at 117-118. He urged the Court to resolve issue four in the Appellant`s favour.</p> <p>In response, learned Counsel for the 1st Respondent submits that the prosecution adduced ample evidence to show that the Appellant authorised and was in fact aware of the issuance of the cheques, Exhibits PW7A and PW7B. Relying on the evidence of PW1, PW6 , DW2 (the Appellant) and DW3 (under cross examination), he submits that the Appellant was the Commissioner for Local Government and Chieftaincy Affairs/Chairman of the Adamawa State Local Government Joint Account Committee (JAC) meetings where decisions were taken to deduct the said monies for development projects. Exhibit PW5A discloses that the GTBank account of 2nd Respondent was opened in September, 2002 when the Appellant occupied these positions, and this fact was corroborated by PW4. PW4 also stated that it was the late Permanent Secretary, who doubled as the Secretary of the said Adamawa State LGs Joint Account (JAC) Committee, who directed him to endorse Exhibits PW7A and PW7B to pay the monies into the 2nd Respondent’s account, where the Appellant was the sole signatory. This was instead of the purpose for which the money raised in the vouchers (Exhibits PW1A and PW1B) were meant for, to wit: to assist INEC with the voters’ registration exercise and for the purchase of vaccines as a Joint Development exercise. For this, he relied on the evidence of PW1 and PW4. He contends that the decision not to raise the cheques in the name of the 2nd Respondent from the onset was because the diversions were fraudulent and the Appellant needed to conceal his track. </p> <p>Also, that by Exhibit PW5A, the account opening documents which consist of the mandate card, Memorandum &amp; Articles of Association, and other documents of GTBank Plc, the Appellant was and is still one of the Directors/Chairman of the 2nd Respondent. The 1st Respondent also proved that the Appellant is the sole signatory of the account of the 2nd Respondent vide the evidence of PW5 and PW6, and that of the Appellant himself as DW2, as well as DW4, both under cross-examination. In view of these admissions, the Appellant cannot be absolved of causing the payment and receipt of the monies into the 2nd Respondent’s account, and the subsequent transfer of same into the account of BBB Project, when such movements and transfers could not have been effected without the authorisation of the Appellant. Also, the evidence of the PW6 on the outcome of his investigation revealed the status of the Appellant, as a result of which he authorises all expenditures and disbursements from the Ministry’s account. It also revealed that the 2nd Respondent did not execute any contract for the Ministry, other than that evidenced by Exhibit PW4A worth N10 million. The evidence of PW6 was not controverted or challenged under cross-examination by the Appellant, who was at all times represented by Counsel, nor by the Appellant himself either under cross-examination or while testifying in chief as DW2. Counsel submits that the trial Court was therefore right when it discountenanced the arguments of Counsel to the Appellant on facts not controverted under cross-examination but raised in his final written address, and this has not breached the Appellant’s right to fair hearing. He argues that the submissions of Counsel, no matter how brilliant and persuasive, cannot take the form of evidence.</p> <p>Additionally, Counsel submits that the testimony of PW6 on his findings as an investigation officer who was part of the team that investigated the case was direct, cogent and admissible. It also substantially corroborates the testimonies of the PW1, PW4, PW5 and DW2 under cross-examination that the Appellant was the Chairman of the Adamawa State Local Governments Joint Account Committee, and that he authorised disbursements from the Ministry’s account by virtue of his position as Commissioner for Local Governments. He urged the Court to hold that the endorsements at the back of Exhibits PW7A and PW7B which falsified the reason why Exhibits PW1A and PW1B were raised, could not have been made without the knowledge and authorisation of the Applicant.<br /> In answer to the submission that the Court should invoke Section 167 (d) of the Evidence Act (supra) for the failure of the 1st Respondent to call the Permanent Secretary of the Ministry of Local Government (who had died even before the trial) to testify and tender documents which showed that the Appellant signed or approved withdrawals from the Adamawa State Joint Account Committee, Counsel submits that it is misconceived and erroneous. PW6 testified to these facts which were discovered during their investigations, that the Appellant chaired the LGs JAC meetings when decisions to raise the vouchers for Exhibits PW1A and PW1B were taken; and the Appellant elected not to cross-examine him on it. He distinguished this case from the case of The People of Lagos State V Umaru (2014) 7 NWLR (Pt. 1407) 584 at 612-613, paras H-H relied on by the Appellant in respect of withholding of evidence.</p> <p>On the contention that the evidence of PW6 amounted to inadmissible hearsay for the fact that he was not the only Police officer who investigated the case and that the 1st Respondent failed to call other team members, Counsel submits that it is superfluous and should be discountenanced. The 1st Respondent was not bound to call every available witness in proof of its case. In arriving at a conviction in criminal cases, the court is concerned with whether or not there is sufficient credible evidence of probative value, and not concerned about the number of witnesses called on any given issue. For all these submissions, Counsel relied on the following authorities: Dagash V Bulama (2004) 14 NWLR (Pt. 892) 144 at 241, paras G-H; Oforlette V State (2000) 12 NWLR (Pt. 681) 415 at 436, paras C-E, 437, para B (SC); State V Femi Oladotun (2011) 6 NCC 428 at 443, paras B-H; Nig. Arab bank Ltd V Femi Kane Ltd (1995) 4 NWLR (Pt. 387) 100 at 106; Chukwujekwu V Olalere (1992) 2 NWLR (Pt. 221) 86 at 93, para A; Ochiba V State (2011) 48 NSCQR 1 at 22-23, paras F-H, A-B; The People of Lagos State V Umaru (2014) 7 NWLR (Pt. 1407) 584 at 612-613, paras H-H; Garko V State (2006) 6 NWLR (Pt. 977) 524 at 542, paras B-E; &amp; Eke V State (2011) 6 NCC 1 at 14, para F.</p> <p>In a reply on points of law, learned Counsel for the Appellant in his Reply Brief, sought to distinguish the decided authorities relied on by the 1st Respondent on the subject of: (a) the admissibility of original copies of public documents as primary evidence of same, as opposed to the admissibility of secondary evidence of public documents; (b) substantial compliance with Section 90(1) (e) of the Evidence Act (supra); (c) documents tendered through subpoena having no evidential value in the absence of the subpoenaed person testifying as a witness; and (d) presumption of withholding of evidence. Instead, he relied on the following additional authorities as being relevant for a resolution of the respective issues: Olley V Tunji (supra); Famakinwa V Unibadan (1992) 7 NWLR (Pt. 255) 608 at 623, paras G-H; Anatogu V Iweka II (supra); &amp; UBA Plc V G.S. Ind. (Nig.) Ltd (2011) 8 NWLR (Pt. 1250) 590 at 621.</p> <p> As additional submissions, learned Senior Counsel submits that the 1st Respondent did not show that it complied with any of the requirements in Section 90(1) (e) of the Evidence Act (supra) with regard to the admissibility in evidence of the statements of accounts, Exhibits PW6C1 and PW6C2. Also, while agreeing with the 1st Respondent that the submissions of counsel cannot replace evidence, Senior Counsel submits that the submissions on the inadmissibility of evidence, evidence being hearsay, and the invocation of the principle of withholding evidence, are not issues of evidence but issues of law which can be canvassed in a written address, as has been done by the Appellant.</p> <p>Findings: <br /> Section 102 of the Evidence Act, 2011 provides inter alia as follows:</p> <p>“The following documents are public documents – <br /> (a)    documents forming the official acts or records of the official acts of – <br /> (i)    the sovereign authority,<br /> (ii)    official bodies or tribunals, or<br /> (iii)    public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and<br /> (b)    public records kept in Nigeria of private documents.<br /> Thus, by a combination reading of Sections 102, 105 and 106 of the Evidence Act, documents emanating from such public authorities as the Police, INEC, and the like, are public documents. Hence, only the original or the certified true copies of such documents are admissible in evidence. In the absence of original copies, only certified copies thereof are admissible. See Okocha V INEC (2010) LPELR-CA/B/EPT/1321/109, 1 at 55-56; Kwara State Water Corp. V AIC (Nig) Ltd (2009) ALL FWLR (Pt. 485) 1738 at 1765-1767; Dagash V Bulama (2004) ALL FWLR (Pt. 212) 1666; Matori V Bauchi (2004) ALL FWLR (Pt. 197) 1010; Araka V Egbue (2003) FWLR (Pt. 175) 507; Onobruchere V Esegine (1986) 1 NWLR (Pt. 19) 799 at 808.</p> <p>Thus, Section 102 of the Act (supra) sets out the categories of public documents. As indicated earlier, learned Senior Counsel for the Appellant contended that only certified true copies of these categories of documents are admissible. Unarguably, this contention does not represent the position of the law on this point. Indeed, this submission stems from a superficial reading of Section 90(1) (c) of the Evidence Act, 2011. The judicial interpretation of the nuances of this provision is that, the only pieces of secondary evidence of public documents that are admissible in respect of the original documents, (of course original documents themselves are admissible), are certified true copies – (Iteogu V LPDC (2009) 17 NWLR (Pt. 1171) 614 at 634; Onubruchere V Esegini (1986) 1 NSCC 343 at 350). Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of public documents, and no other kind of secondary evidence. Consequently, the issue as to whether a document needs certification relates to the admissibility of secondary evidence of an original document, and not as it concerns the original document itself. See: Abdullahi V FRN (2016) LPELR-SC.288/2012 1 at 24-27, paras A-E, per Nweze, JSC; G. &amp; T.I. Ltd V Witt &amp; Bush Ltd (2011) LPELR-1333(SC) 42; Tabik Investment Ltd V GTB Plc (2011) 6 MJSC (Pt. 1) 21; Iteogu V LPDC (supra); Dagaci of Dere V Dagaci of Ebwa (2006) 30 WRN 1; Araka B Egbue (20003) 33 WRN 1. </p> <p>Under the provisions of Section 94(1) of the Evidence Act, the original of a document is what is known as primary evidence, while a copy of the original document is known as secondary evidence of the original – see Section 97(1) of the Evidence Act. The exception where secondary evidence may be given and admitted of the existence, condition or contents of the original document is (a) where the original is shown or appears to be in the possession of the person against whom the document is sought to be proved, or (b) any person legally bound to produce it and does not produce it despite being served with notice as stated in Section 98 of the Act or (c) the original is a public document within the meaning of Section 102 of the Act, in which case the secondary evidence admissible, is a certified true copy. Thus, only the certified true copy of a public document is admissible in evidence as secondary evidence. The dispute here is whether Exhibit PW6B is a public document requiring certification.<br /> In the case of Tabik Investment Ltd V GTB (2011) ALL FWLR (Pt. 602) 1592 at 1607, the Supreme Court held that a private petition sent to the Police formed a part of the record of the police and consequently is a public document within the provisions of Section 109 (now Section 102) of the Evidence Act. It stated thus:</p> <p>“By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 18(1) of the Interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court, are public documents.”<br /> Equally, in the recent case of Aromolaran V Agoro (2014) 18 NWLR (Pt. 1438) 153, the Apex Court again held that a letter written to a Governor of a State in his official capacity by a person who is not a government official, is a public document because it is a public record kept in Nigeria of a private document which comes under the provision of Section 102 of the Evidence Act. Given all these, PW6B, the extra-judicial statement of the Appellant produced by the prosecution from the custody of the EFCC, is unwaveringly an original of a public document. However, being the original of the document itself, it is primary evidence which does not require certification.<br /> In respect of Exhibits PW6C1 (the statement of account of BBB Project with Guaranty Trust Bank) and PW6C2 (the statement of account of Al-Akim Investment Ltd with Guaranty Trust Bank), Sections 89 and 90 of the Evidence Act, 2011 provide as follows:<br /> “89. Secondary evidence may be given of the existence, condition and contents of a document when – <br /> (h) the document is an entry in a banker’s book.<br /> 90 (1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of section 89 is as follows:<br /> (e) in paragraph (h), the copies cannot be received as evidence unless it is first proved that – <br /> (i) the book in which the entries copies were made was at the time of making one of the ordinary books of the bank,<br /> (ii) the entry was made in the usual and ordinary course of business,<br /> (iii)the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and</p> <p>(iv)The copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.”</p> <p>It is trite law that there are certain types of evidence, such as hearsay and unstamped and unregistered documents, which are inadmissible per se and which cannot form the basis for a decision. An objection to these may be taken at any stage of a trial by any of the parties or at the instance of the court, or even on appeal. However, Section 90 creates an exception wherein it makes certain documents admissible under certain conditions. With particular reference to Section 89 (h) and 90(1) (e), copies of entries in banker’s books are admissible in evidence under certain conditions. The fulfillment of that condition shall be by oral or affidavit evidence showing that the Exhibits are extracts from a Banker’s book, kept by the banker and that the figures copied out had been compared with the original and found to be correct. </p> <p>In considering the admissibility of entries in books of or statements of account, Sections 51, 84, 89 and 90 of the Evidence Act, 2011 are relevant. Section 51 of the Act makes admissible entries in books of account or electronic records regularly kept in the course of business admissible whenever they refer to a matter into which the court has to inquire. However, the same section provides that such statements alone shall not be sufficient evidence to charge any person with liability. Under Section 89 (h), secondary evidence of the existence, condition or contents of an entry in a banker’s book is also admissible. The admissibility of such an entry is, however, subject to the fulfillment of the conditions stipulated under Section 90(1) (e). Section 84 allows for the admissibility of a statement contained in a document produced by a computer, banking practices having emerged from the days of parchment and weighty paper and thus entries in “account books” to computer or electronic records. It follows therefore that all statements of accounts emanating from banks these days are invariably computer generated.<br /> It has been held that in an attempt to satisfy the conditions stated in Section 90 (i)-(iv), the evidence of such is not required to be a verbatim reproduction of the facts in the section. It is sufficient that the provisions are substantially complied with. In Yesufu V ACB (1976) LPELR-SC.542/1975; (1976) NSCC 202 at 206, the Supreme Court, per Fatayi-Williams, JSC, held thus:</p> <p>“It is not the length of evidence given in tendering a bank statement of account that matters but the substance of the evidence given; nor is it compulsory that the precise words set out in Section 97(2) (e) should be used by the witness or the judge taking down his evidence. It is enough that substantially the requirements of the section are observed.”</p> <p>Section 97(2) (e) of the Evidence Act referred to therein, is in pari materia with Section 90(1) (e) of the Evidence Act, 2011. See also Kubor V Dickson (2012) LPELR-9817(SC); Yassin V Barclays Bank DCO (2001) FWLR (Pt. 44) 21; &amp; IBWA V Imano Nig. Ltd (1988) 3 NWLR (Pt. 85) 633.<br /> In the instant case, it is as plain as a pikestaff that Exhibits PW6C1 and PW6C2, bank statements electronically generated from GT Bank Plc, do not come within the class of documents which are inadmissible in evidence in any event, in law. Instead, under Sections 84 and 90 of the Act (supra), they are admissible under certain conditions. See Kossen (Nig) Ltd V Savannah Bank of Nig. Ltd (1995) LPELR-SC.209/89; Oguma Associated Companies (Nig) Ltd V IBWA Ltd (1988) LPELR-SC.69/1986. The simple question that must now be answered is, whether these conditions were met before they were admitted by the lower Court. </p> <p>There was indeed an initial attempt to tender the documents through PW5, the branch Manager of GT Bank Yola. However, the documents were subsequently withdrawn before the decision of the lower Court could be rendered on same, and subsequently re-tendered through PW6. PW6, the police investigator, after testifying and laying proper foundation as to how he applied for the documents from the Bank and they were sent to him, once more tendered the documents in evidence. The statements were accompanied by a certificate of identification in compliance with Section 84(4) of the Act. I have examined the certificates of identification annexed to both Exhibits and, at this juncture, it is important to set out their contents:“CERTIFICATE OF IDENTIFICATION I, ELO OSIGHO of Internal Control Group of Guaranty Bank Plc do confirm that the content of the documents for AL-AKIM NIG LTD with account number 361340525110 from the Bank’s system (particulars of same contained in the schedule hereunder)</p> <p>I also verify as follows:<br /> 1.    That the documents containing the statements were produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of and activities regularly carried on over that period.<br /> 2.    That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statements or of the kind from which the information so contained is derived.<br /> 3.    That throughout the part of that period the computer was operating properly and that the information contained in the statements produces or is derived from the information supplied to the computer in ordinary course of those activities.<br /> ...</p> <p>To the best of my knowledge and belief, I identify that the documents which bear the stamp of the bank and initials of ELO OSIGHO were confirmed and authenticated by me.<br /> I attest to the information produced as being a true and accurate record of what is contained in the banker’s server.<br /> Dated ...</p> <p>NAME: ELO OSIGHO</p> <p>POSITION: Internal Control Officer<br /> SIGNATURE: Signed<br /> DATE ...”  <br /> By Section 145(1) of the Evidence Act, 2011, the court should presume every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorised in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. See Ukeje V Ukeje (2014) LPELR-SC224/2004; Okelola V Adeleke (2004) 13 NWLR (Pt. 890) 307; Cardozo V Daniels (1986) 2 NWLR (Pt. 20) 1.</p> <p>I agree with the learned trial Judge that these documents satisfied the relevancy test, which is the hallmark of admissibility (Section 1 (a) &amp; (b) of the Evidence Act); and it met all the requirements of the law as set down in Section 84(4) of the Evidence Act. With regard to the additional requirements for the admission of bank documents under Section 90(1) (e), which requires such documents to be tendered through the maker, granted that such is the ideal, all things being equal. However, in the event that the maker is not available for any reason or his evidence cannot be accessed without undue delay to the proceedings, Section 83(2) (a) of the Act operates to permit the documents to be tendered through another person, other than the maker. In the instant case, PW6, through whom the documents were tendered, was one from the team of police officers which conducted investigations into the allegations against the Appellant. He gave detailed evidence of how he traced the sums of money alleged to have been paid into the 2nd Respondent’s account and the BBB Project account via bank drafts raised from cheques issued (Exhibits PW7A and PW7B) and drawn on the account of the Adamawa State Local Governments Joint Account Fund, which undoubtedly the Appellant chaired. It is based on this, that the learned trial Judge exercised her discretion to admit the documents in evidence. For ease of reference, she stated inter alia as follows (at pages 130-132 of the Record):  </p> <p>“The two statements of accounts from GT Bank have been duly certified on the face of both of them by the Internal Control Officer of the bank, Mr. Elo Osigho. He has also signed the certificates of identification attached to each statement of account stating in details how the statements were produced from the computers of the bank as required by section 84(4) of the Evidence Act, 2011. In my view this is enough to satisfy the requirement of the law. It will be superfluous and an unnecessary waste of time and cost to insist that the maker must also come to court to tender those document...) (Emphasis supplied)</p> <p>This finding is in consonance with Section 83(2) of the Evidence Act, which provides for the admissibility of documentary evidence as to facts in issue where the maker is not called as a witness. The provision states as follows:</p> <p>“(2) In any proceeding, the court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence notwithstanding that – </p> <p>(a)    The maker of the statement is available but is not called as a witness;” (Emphasis supplied)</p> <p>Evidently, being the master of her Court and finding that, in the circumstances of the case, (in line with Section 83(2)), it would entail undue delay in the proceedings for the PW5 (the Branch Manager) to be re-called to testify, the learned trial Judge exercised her discretion to so admit the documents in evidence. From a calm consideration of the totality of the evidence placed before the trial Court, I am unable to fault this exercise of discretion since, in my humble view, it was judiciously and judicially made. I therefore find that, contrary to the submissions of learned Senior Counsel, Exhibits PW6C1 and PW6C2 were properly admitted in evidence. </p> <p>Learned Senior Counsel for the Appellant also faults the admission of two cheques (Exhibits PW7A and PW7B) on the ground that they were merely produced on subpoena and not through the maker of the documents, contrary to Section 83 and 85 of the Evidence Act. He faulted the fact that it was not tendered through one of the makers, PW4. He contends that failure to tender them through the maker to enable the Appellant cross examine him thereon has breached the Appellant’s right to fair hearing. In response, learned Counsel for the Respondent submits that secondary copies of Exhibits PW7A and PW7B had already been tendered along with Exhibits PW1A and PW1B through the PW1. In addition, PW4, admittedly one of the makers of the documents, had since testified in respect of the same cheques. The Appellant therefore had opportunities to cross-examine both witnesses on the cheques, the original copies of which were later put in evidence through a bank official, PW7. He therefore disputed that the Appellant’s right to fair hearing had been breached.</p> <p>I have given consideration to the submissions of the parties in conjunction with all the facts as reflected in the printed Record of proceedings of the lower Court, and I am hard-put to see how the Appellant’s right to fair hearing was breached or even abridged by the admission of Exhibits PW7A and PW7B in evidence. As was rightly pointed out by learned Counsel for the Respondent, these cheques had all along from the inception of evidence in the case, been before the trial Court and thus were available to be used in cross-examining all seven witnesses presented by the prosecution. Secondary copies of the cheques were tendered through the PW1, along with the vouchers from which they were raised, Exhibits PW1A and PW1B. Thereafter, PW4, (the erstwhile Chief Accountant of the Ministry of Local Government &amp; Chieftaincy affairs at the time when the Appellant was the Commissioner), who testified as being the person who prepared the cheques on the instruction of the Permanent Secretary of the Ministry, and who was one of the two signatories to the cheques, was brought before the Court as a witness (pages 88-92 of the Record). The Appellant had ample opportunity to cross-examine this witness and he exercised this right quite vigorously, as the Record of court discloses. His complaint in this respect is therefore nothing but a trifling, and diversionary of the substantial issues that could arise from the case. This is more so that it is also on record, as has even been admitted by the Appellant himself, that the second signatory to the cheques (Exhibits PW7A and PW7B), to wit, the Permanent Secretary of the Ministry of Local Governments &amp; Chieftaincy Affairs (when the Appellant presided as Commissioner), had since died even before the commencement of the trial. How then could he have been called to tender the documents in evidence? The next best thing to do was to call the person who prepared the cheques and also signed them. This was rightly done, thus providing the Appellant with plentiful opportunity to exercise his right to a fair hearing, as is being canvassed here. In fact, this is a classic case of a situation where the proviso to Section 83(1) of the Evidence Act could be invoked. For avoidance of fact, it provides:</p> <p>“(1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied – <br /> (a)...<br /> (b)...</p> <p>Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, ...)” (Emphasis supplied)</p> <p>As a matter of fact, the maker of the documents in the instant case was the PW4. PW4 and the late Permanent Secretary were the signatories to the cheque. But even in the event that the Permanent Secretary was a necessary witness, he was already deceased, and that is an act of God that no-one can do anything about. Thus, Section 83(1) of the Act (supra) operates to enable the documents to be admitted in evidence. In consequence, I find no substance in the complaint of the Appellant that the failure to tender Exhibits PW7A and PW7B through their maker denied him fair hearing and occasioned a miscarriage of justice.</p> <p>At this point it is important to re-sound a note of caution as once issued by the respected Tobi, JSC in Magaji V The Nigerian Army (2008) LPELR-1814(SC) 1 at 40 of the E-Report:</p> <p>“It has become the fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all inadequacies at the trial court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application and applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”</p> <p>The facts of the case do not support the invocation of the principle of fair hearing in favour of the Appellant because I do not see where the Appellant’s right to fair hearing was violated and/or contravened. On the whole, I am of the view that, given the entire circumstances of the case as reflected on the printed Record, and in line with the substantive law and various legal authorities on the subject, the learned trial Judge acted rightly in admitting Exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B in evidence. Issue three is therefore resolved in favour of the Respondent. </p> <p>Under issue (iv), learned Counsel for the Appellant has submitted that that there is no admissible evidence before the trial Court to establish that the Appellant authorised the issuance of the two cheques, Exhibits PE7A and PW7B. He contends that the circumstantial evidence adduced was not cogent, credible, reliable, admissible, adequate and compelling enough to support the inference of the trial Court that the Appellant authorised the issuance of the cheques. In response, the Respondent has submitted that there was sufficient and admissible evidence before the trial Court to establish the fact that the Appellant authorized and was aware of the issuance of the cheques, Exhibits PW7A and PW7B. He placed reliance on the evidence of PW1, PW4, PW5, and PW6, as well as the evidence in defence by the Appellant himself as DW2 as well as DW3. He also relied on documentary evidence tendered in the form of PW1A &amp; PWB2, PW5A &amp; PW5B, and PW71A &amp; PW71B. The learned trial Judge thoroughly analysed the evidence adduced before the Court and arrived at the conclusion that the Respondent had proved the charge against the Appellant.</p> <p>I have equally subjected the evidence adduced in this regard to a close and careful scrutiny. While I agree that there is no direct evidence stating that the Appellant issued the instructions for the issuance of the two cheques to be paid into the account of the 2nd Respondent and then to the account of BBB Project, I am of the view that the circumstantial evidence adduced was of such a nature that the only reasonable conclusion to be reached is that it was the Appellant who so authorised their issuance. For one, it is the evidence of the PW1, PW4, PW6, as well as that of the DW2 (the Appellant himself) and DW3 that, at the time of the issuance of the cheques, he was the Commissioner for Local Government &amp; Chieftaincy Affairs with the Adamawa State Government. In that capacity, much as he tried to unsuccessfully wriggle out of it, the evidence confirms that he doubled as the Chairman of the Local Governments Joint Account Committee with the Governor of the State, and so he presided over it on a number of occasions. The function of the Committee was stated by these witnesses. Indeed, it was affirmed by the Appellant himself as DW2, (the horse’s mouth, as it were), at pages 165-166 of the Record thus:</p> <p>“My name is John Babani Elias... When I was Commissioner for Local Government &amp; Chieftaincy Affairs, I was responsible for supervising the Ministry as well as member of the Joint Local Government Allocation Committee... The Chairman of the Committee was the Governor of State, Boni Haruna then. In the absence of the Governor, I sometimes act as the Chairman of the Committee. The Local Government Joint Allocation Committee is responsible for sharing all funds due to Local Government from the Federation Account and any other revenue accruing to the Local Governments from the State... When decisions are taken by the Committee, the Permanent Secretary in the Ministry of Local Government &amp; Chieftaincy Affairs implements the decision of the Local Government Allocation Committee. The signatories of the Local Government Joint Account are the Permanent Secretary ... and the Accountant ...” (Emphasis supplied)</p> <p>Under cross- examination, DW2 again admitted (at page 167 of the Record) as follows:</p> <p>“I was a Commissioner for Local Government &amp; Chieftaincy Affairs from November, 2002 to December, 2003. As a Commissioner, I chaired the Local Government joint account committee meetings sometimes not always... It is also true that at the meetings of the joint Local Government account committee, decisions are taken on joint development projects. It is true that in one of the joint Local Government account committee meeting, a decision was taken to contribute money to assist INEC with voter registration exercise... I see Exhibit PW1A, it is a voucher raised to facilitate INEC Voter registration exercise.” (Emphasis supplied)</p> <p>From the above evidence, it can safely be deduced that the Appellant presided over the meeting in which the decision he referred to was taken. Based on that decision, Exhibit PW1A was prepared. Exhibit PW1A is a payment voucher for the sum of N31, 500, 000.00 prepared on the Adamawa State Local Government Joint Account Committee Fund in November, 2002 and the payee was “Chairman Demsa and 20 Local Government Councils.”  Annexed to this document are photocopies of a cheque issued in the name of the “Manager, Habib Bank Ltd Yola” in the sum of N31, 500.000.00 on 26-11-2002, and the instruction “Pls issued (sic) Draft in favour of AL-AKIM INVESTMENT NIG. LTD payable at Yola”. </p> <p>From the documents for the opening of the account of Al-Akim Inv. Nig. Ltd, Exhibit PW5A, as well as the testimonies of the Appellant himself (DW2) and DW4, (present Managing Director of the Company), the Appellant was the Chairman/CEO of the Company as well as its sole signatory. Even though DW2 (the Appellant) and DW4 state that the Appellant resigned and withdrew from his position in the Company after he was appointed as a Commissioner, it is interesting that in the Appellant’s statement to the EFCC, (Exhibit PW6A), he still clearly admitted to having an interest in the company.</p> <p>What however makes it even more interesting is that monies to the tune of N51.5 million voted for joint developmental projects by the 21 Local Governments in Adamawa State, such as to facilitate INEC Voters Registration exercise, were re-routed and paid into the 2nd Respondent’s account, the account of a company which, by the Appellant’s own admission, he still maintained an interest in, and by the Exhibit PW5 (the account opening papers, mandate paper and memorandum &amp; Articles of Association of the company) he was still the Chairman/CEO. More importantly, he was still the sole signatory to the account. This is in spite of the evidence of the DW4 which alleged that the Appellant had ceased to hold such positions and was no longer the signatory to the account. Even though he goes on to allege that a notification of the changes in the company had been sent to the Corporate Affairs Commission (CAC), which had yet to effect the change, no evidence was adduced to substantiate this. It is the law that oral evidence cannot be given of the contents of documents. I therefore endorse the trial Court’s finding on this.<br /> Now, the question which logically arises is, how did money from the LGs JAC voted for specific developmental projects find their way into a company in which Appellant had clear pecuniary interest and was the sole signatory, at a time when he was also the alter ego of the Local Governments Joint Account Committee as an alternating chairman; and then ultimately make its way into the account of BBB Project Fund, where the erstwhile Governor and co-chairman with the Appellant of the LGs JAC, was also the sole signatory? From the evidence adduced, “BBB” was an acronym for “Bring Boni Back” as Governor of Adamawa State. </p> <p>PW1 (the former Chairman of Mayo-Belwa LGC and a member of the LGs JAC along with the Appellant), in his evidence (at pages 82-84 of the Record) stated that the 21 Local Governments agreed to contribute certain monies to assist the Independent National Electoral Commission (INEC) in its Voters’ Registration exercise, and for other joint development projects. Vouchers raised for this purpose were tendered through this witness as Exhibits PW1A and PW1B. PW4, in corroborating the evidence of PW1, also stated inter alia thus (at page 16 of the Record):<br /> “The Local Government Joint Account Committee Chairman is the Commissioner of the Ministry for Local Government, then it was Hon. John Elias (2nd accused) and Late Alh. Abubakar Jidda was then the Permanent Secretary of the Ministry and he was the Secretary of the committee. If the committee took any decision, it is passed to us (staff of the ministry) through the Permanent Secretary of the Ministry.” (Emphasis supplied)</p> <p>Now, even though he states that it was the late Permanent Secretary, (as Secretary to the Committee vested with the duty of implementing the decisions of the Committee), who instructed him to prepare the vouchers in Exhibits PW1A and PW1B in favour of the 2nd Respondent, they were still expressly supposed to be for the purpose of assisting INEC with logistics during the Voters’ Registration exercise (page 90). Assuming that it was the late Permanent Secretary who indeed authorised the issuance of the cheques for the purpose indicated in the vouchers, how did the amounts so-voted subsequently find their way as contributions into the account of BBB Fund project via the account of the 2nd Respondent? </p> <p>In his defence, the Appellant alleges that the sums of money in Exhibits PW7A and PW7B which were cheques raised for the purposes stated in the vouchers Exhibits PW1A and PW1B, was actually 50% redemption of a pledge made by the 2nd  Respondent at a Fund raising event for the return of the Governor to the seat of Government. The evidence of the PW1, PW4 and PW6 buttressed by Exhibits PW1A and PW1B, (the vouchers) which explain the purpose of the attached cheques, gives a lie to this defence. By the same token, they discredit the evidence of the DW4 and the Exhibits DW4A and DW4B. These latter documents tendered through DW4 were clearly procured to buttress the bogus defence put out by the Appellant. The learned trial Judge was right to place no weight on them.  </p> <p>From all these pieces of evidence, as well as numerous others before the trial Court, it is evident that the 1st Respondent established by credible evidence that it was the Appellant who authorized the issuance of the cheques, Exhibits PW7A and PW7B, which authorization was implemented by the late Permanent Secretary as Secretary of the LGs Joint Account Committee. I therefore also resolve issue (iv) in favour of the 1st Respondent.</p> <p>Issue (v):</p> <p>(v)    Whether having regard to the entire circumstances of the Amended Charge, the Judgment of the trial Court delivered more than 90 days is reasonable, supported by weight of evidence and ought not to be set aside in the instant appeal.</p> <p>Herein, learned Senior Counsel for the Appellant submits that the parties adopted their final written addresses on 6th July, 2015. However, Judgment was not delivered until 4th December, 2015, almost five months thereafter. He contends that the trial Court did not therefore deliver Judgment within 90 days as prescribed by the Constitution (supra), notwithstanding the re-adoption of the written addresses on 17th November, 2015. He explains that the rationale behind the constitutional provision is so that possible misapprehension and wrongful evaluation of evidence due to such delay will not occasion a miscarriage of justice against the Appellant. Where however no such misapprehension of evidence is established, the judgment of a court will not be disturbed. </p> <p>Counsel submits that in the instant case, there is such a wrongful evaluation of evidence and misapprehension due to the delay in the delivery of the Judgment which occasioned a miscarriage of justice to the Appellant. He contends that the misapprehension is contained in the alleged wrongful findings of the lower Court under the issues framed and being addressed in this Appeal. He thus adopts his arguments proffered under these issues. Counsel specifically identified the following as errors in the findings of the lower Court which, he contends, shows the misapprehension and wrongful evaluation of evidence due to the delay in the delivery of the Judgment:</p> <p>1)    The finding at page 280 of the Record where it referred to PW2 as the chief accountant of the Ministry of Local Government and Chieftaincy Affairs, instead of an account clerk in the Ministry;<br /> 2)    Contrary to the finding of the lower Court at page 280 of the Record, PW2 did not state that the Appellant chaired the LGs JAC meeting when the agreement was reached to procure vaccines for the Local Governments;<br /> 3)    The failure of the lower Court to act on the evidence of the Appellant that the Governor was the substantive Chairman of the LGs JAC meetings; and the insistence that the Appellant chaired the LGs JAC meeting where the contract was awarded to the 2nd Respondent;<br /> 4)    Contrary to the evidence of PW1, PW2 and PW4 at pages 82-86 and 88-92, the trial Court came to the wrongful conclusion that the Appellant committed the offences in counts 3 and 4 of the Amended Charge;<br /> 5)    Whereas Section 1(2) (b) of the Miscellaneous Offences Act requires that the person must act with intent to defraud Government and caused payment to another person of money by virtue of a forged negotiable instrument, counts 3 and 4, without including forgery, stated that he money was transferred vide drafts (not cheques) while the 1st Respondent tendered cheques;</p> <p>6)    Contrary to the finding of the lower Court at page 284 of the Record that the monies were deliberately diverted, the 1st Respondent did not charge the Appellant with the offence of diversion; <br /> 7)    There was no admissible evidence that the Appellant diverted any funds to the BBB Project’s account vide drafts or that he supervised the transfer of the sums of money to the 2nd Respondent, as charged;<br /> 8)    Failure of the lower Court to believe the evidence of Appellant and DW2 and his exhibits, which were cogent and admissible to show that he did not commit the offences charged; <br /> 9)    Failure to rely on any law in not attaching weight to Exhibits DW4A and DW4B on the basis that Local Governments could award contracts only in the format of Exhibits PW4A, PW1A and PW1B;<br /> 10)    Speculating on where the 2nd Respondent got money to execute the contract, in not attaching weight to Exhibits DW4A and DW4B.</p> <p>Based on all the above and having regard to the entire circumstances of the Amended Charge, Counsel submits that the Judgement of the trial Court delivered more than 90 days is unreasonable, is not fully supported by all the evidence before the trial Court and ought to be set aside.</p> <p>He submits that the Appellant need not show that he has suffered any miscarriage of justice having established the various breaches of Section 36 of the Constitution (supra). For these submissions, he relies on: State V Azeez (2008) 14 NWLR (Pt. 1108) 439 at 503, para H; Walter V SkyII (Nig.) Ltd (2001) 3 NWLR (Pt. 701) 438 at 474, paras H-A; Fagbenro V Arobadi (supra); Nwocha V State (supra); Abidoye V FRN (supra); Timothy V FRN (supra) at 1152, paras H-A; Tegwonor V State (2008) 1 NWLR (Pt. 1069) 630 at 663, paras G-H. He urged the Court to resolve issue five in favour of the Appellant.</p> <p>Additionally, while acknowledging that the thrust of Section 294(1) and (5) of the Constitution (supra) provides that a court must deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses, learned Counsel for the 1st Respondent submits that the lower Court complied therewith by delivering Judgment within 90 days as constitutionally prescribed, and also properly evaluated the evidence before it. He argues that the prosecution and the defence adopted their respective final written addresses on Monday 6th July, 2015 and later re-adopted same on Tuesday 17th November, 2015. Thereafter, on 4th December, 2015, the trial Court delivered its Judgment. </p> <p>Without conceding that the Judgment was delivered out of the constitutionally prescribed period, Counsel submits that, even were that to be case, it does not ipso facto become a nullity unless a party has suffered a miscarriage of justice consequent as a result of the delay. The emphasis is not so much on the length of time per se, but rather on the adverse effect resulting from the delay. He contends that by delivering its Judgment only seventeen days after the re-adoption of final written addresses, it cannot be said that there was a delay which could have affected the lower Court’s perception, appreciation and evaluation of the case before it, which could have led to a substantial miscarriage of justice.</p> <p> This is in spite of the fact that the trial Court referred to the testimony of PW4 as that of PW2. Counsel argues that this slip/error did not occasion a miscarriage of justice, as it has not been shown from the evidence adduced that, had it not been for that minor slip/error, a decision of acquittal would have been handed down to the Appellant. He submits that it is not every mistake or error in a Judgment that necessarily vitiates a Judgment to warrant the intervention of an appellate court. Instead, it must be substantial in the sense that it occasioned or is likely to have occasioned a miscarriage of justice.</p> <p>Counsel further submits that, from the Amended Charge, the Appellant was certainly not charged for the offence of diversion, but for causing the transfer of money using a negotiable instrument with intent to defraud the Adamawa State Government. This is notwithstanding the fact that the learned trial Judge made reference to the fact that the Appellant, being a public officer at the time of the offence, was committed to a position of trust and that he abused his office in committing the offence.</p> <p>On the issue of ‘drafts’ as opposed to ‘cheques’ raised by the Appellant in his Brief of argument, Counsel referred to the Amended Charge wherein the Appellant was charged for causing a transfer “... vide a Habib Nigeria Bank Limited draft no. 0873368”. Counsel for the Appellant had based his submission on the fact that the prosecution did not tender any ‘draft’ to link the Appellant to the alleged offence on this clause in the Amended Charge. He however submits that in Black’s law Dictionary, 5th Edition page 215, a cheque is defined as “a draft drawn upon a bank payable on demand, signed by the maker or drawer containing an unconditional promise to pay a sum certain in money to the order of the payee”. Further to this, at page 132 thereof, a ‘bank draft’ is called a ‘cheque’. He therefore submits that a bank draft is equally a cheque.<br /> Finally, Counsel submits that the prosecution tendered two cheques, Exhibits PW71A and PW71B, with endorsements at the back of them stating, “Please issue draft in favour of Al-Akim Ltd payable in Yola”. However, the prosecution proved that the 2nd Respondent, Al-Akim Ltd, was not the end-line beneficiary of Exhibit PW1A and PW1B. Instead, it was demonstrated through Exhibits PW5A, PW5B, PW6C1 and PW6C2 that the values of the cheques were fraudulently lodged in the Appellant’s account and later transferred to the BBB Project account. He relies on: Agbogidi V Okoh (2015) ALL FWLR (Pt. 789) 1107; Eyiboh V Abia (2012) 16 NWLR (Pt. 1325) 51; Onajobi V Olanipekun (1985) 4 SC) (Pt. 2) 152; Gwonto V State (1983) 1 SCNLR 142.</p> <p>Replying to the issues arising from the 1st Respondent’ Brief, Counsel mostly re-hashed his arguments in the Appellant’s Brief on a miscarriage of justice having been occasioned by the lower Court’s perceived misapprehension of the facts of the case due to its delivery of the Judgement more than 90 days after final written addresses had been adopted. In disagreeing with the submissions of the 1st Respondent that a cheque and a draft are one and the same, he relies on UBA Plc V GS Ind. (Nig) Ltd (supra) at 638-640, and Diamond Bank Ltd V PIC Ltd (2009) 18 NWLR (Pt. 1172) 67 at 100, paras D-E. He again urged the Court to resolve issue five in favour of the Appellant.</p> <p>Findings:<br /> Section 294(1) of the Constitution provides as follows:</p> <p>“(1) Every court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined, with duly authenticated copies of the decision within seven days of the delivery thereof.<br /> (5) The decision of the court shall not be set aside or treated as a nullity on the ground of non-compliance with the provisions of subsection (1) unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.” </p> <p>It is necessary to stress the obvious that although courts are expected to deliver their decisions within 90 days after final addresses, where the stipulated time is not complied with either due to force majeure, inadvertence or simply neglect, such decision will not be rendered a nullity unless and until an appellate court seized of the complaint or appeal is satisfied that such late delivery of Judgment has occasioned a miscarriage of justice. This, to my mind, is the true import of Section 294(1) &amp; (5) of the Constitution. See ACB V Ajugwo (2011) LPELR-CA/E/66/2006; Atungwu V Ochekwu (2004) 17 NWLR (Pt. 901) 18; Igwe V Kalu (2002) 5 NWLR (Pt. 761) 678; Olokotintin V Sarumit (1997) 1 NWLR (Pt. 480) 222 at 232.</p> <p>The spirit behind the ninety-day period in Section 294(1) of the Constitution (supra) is to ensure that the decision of the court is written and delivered when the facts of the case, the inference from the facts and the impression created by the witnesses are still fresh in the mind of the Judge. From the decided cases on the point, the ninety-day period within which Judgment should have been delivered started to run after the first final written addresses of counsel had been adopted, and not when the addresses were re-adopted. There is nothing esoteric in the concept of re-adoption of written addresses as to relieve the court of its duty to strictly comply with Section 294(1) of the Constitution. Instead, by its very nature, the re-adoption of counsel’s addresses is purely and obviously an innovation and contrivance hatched to circumvent the constitutional provision in Section 294(1). It had no effect on the application of the provision, and time certainly began to run from the time the written addresses were first adopted. In any case, although Counsel’s addresses are an essential part of the adjudication process, cases are not ordinarily decided on addresses but on credible evidence before the court. A brilliant final address cannot make up for want of evidence to prove or disprove points in issue. See Okon V Ita (2010) LPELR-CA/C/08/09; Sanyaolu V INEC (2999) 7 NWLR (Pt. 612) 600; Niger Construction Ltd V Okugben (1987) 4 NWLR (Pt. 67) 787; Obodo V Olomu (1987) 3 NWLR (Pt. 590) 111; Ndu V State (1990) 17 NWLR (Pt. 164) 550. </p> <p>Now, a miscarriage of justice usually depends on the circumstances of each case. There would be miscarriage of justice when an error can be seen in the proceedings/judgment and, had it not been for the error, a decision more favourable to the party that lost, would have been given. There is a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining. This concept of miscarriage of justice is not speculative or abstract, but must be expressed in concrete terms. Thus, a party alleging miscarriage of justice by reason of delay in the delivery of judgment by a court will not succeed by merely parroting the concept. The acceptable criteria for whether there has been miscarriage of justice by reason of delay in delivering judgment appears to have been given by Oputa, JSC in Dibiamaka V Osakwe (1989) 3 NWLR (Pt. 107) 101 at 114, where the erudite Jurist explained thus:</p> <p>“And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can easily be seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.” <br /> See Darma V Mustapha (2014) LPELR-CA/K/243/2012; International Beer &amp; Beverages Industries Ltd V Mutunci Company (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487; Kolawole Industrial Co Ltd V AG Federation (2012) 14 NWLR (Pt. 1320) 221; Peoples Democratic Party V Okorocha (2012) 15 NWLR (Pt. 1323) 205; &amp; Savannah Bank of Nigeria Ltd V Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491. </p> <p>The Appellant has enumerated instances as reasons why he came to the conclusion that the learned trial Judge had lost touch with the facts of the case and this had resulted in injury to him. Starting from the first complaint, which he says is proof of the misapprehension of the evidence due to the delay in delivering Judgment, is the mix-up in the status or job description of PW2 and PW4. However, I agree with learned Counsel for the 1st Respondent that the reference to PW2 as the Chief Accountant, instead of PW4, is merely a slip and/or error which is easily accommodated under the “Slip Rule”. I agree. It goes without saying that Judges are mere mortals and can make such innocuous mistakes. When such mistakes, as in this case, do not go to the root of the action, they are said to be insubstantial and will certainly not negatively affect the outcome of the decision. </p> <p>The other complaints under this issue have largely been addressed under issues one to four already discussed. The Appellant has stated that it is directly because of the so-called ‘wrong findings’ of the trial Court that he was of the view that the learned trial Judge had lost a proper grasp of the facts of the case, and therefore proceeded to adopt his submissions under the fore-going issues. Consequently, having already resolved the preceding issues in favour of the 1st Respondent and against the Appellant, this submission is no longer of any moment.   </p> <p>It is apparent that learned Senior Counsel was not only clutching at straws, but grasping at thin air, in his bid to discredit the Judgment of the trial Court by all means. However, he has not shown that he suffered any miscarriage of justice by reason of the two months delay in delivering the Judgment. This issue is also resolved against the Appellant.</p> <p>Issues (vi) and (vii):<br /> (vi)    Whether the prosecutor proved each of the necessary ingredients of the offence in counts 3 and 4 of the Amended Charge beyond reasonable doubt in the instant appeal.</p> <p>And <br /> (vii)    Whether the conviction and sentence of the Appellant ought not to be set aside in the instant Appeal.</p> <p>With regard to issue six, learned Counsel for the Appellant submits that the evidence led by the prosecution is not enough to establish the guilt of the Appellant on counts 3 and 4 of the Amended Charge. He contends that the ingredients of the offence under Section 1(2) (b) of the</p> <p>Miscellaneous Offences Act (supra) which the 1st Respondent must prove beyond reasonable doubt are as follows:<br /> i.    The Appellant knowingly intended to defraud the Government of Adamawa State;<br /> ii.    The Appellant consequently caused the total sum of N51.5 million belonging to the Government of Adamawa State to be transferred;<br /> iii.    The Appellant caused the transfer of the total sum of N51.5 million vide drafts;<br /> iv.    The drafts were forged;<br /> v.    The Appellant transferred the total sum of N51.5 million to the BBB Project account.</p> <p>Regarding the intention to defraud, Senior Counsel submits that there is no evidence demonstrating that the Appellant made the payment (if such payment was made) with intent to defraud the Government of Adamawa State. He referred to the evidence of the PW4 that he made the payments on the instruction of the Permanent Secretary, who is now deceased; and that the 2nd Respondent was a contractor with the Ministry and had previously handled contracts; the same procedure used in issuing Exhibits PW7A and PW7B was also used in issuing Exhibit PW4A; and that the Appellant was the Commissioner of Local Government &amp; Chieftaincy Affairs when the cheques were issued and not the person who authorised the issuance of the cheques. Thus, that there was no basis to assume that the Exhibits PW7A &amp; PW7B were issued by the Appellant with intent to defraud. He further submits that, in the absence of the statement of account of the Local Government Joint account, it is impossible to know the money which left the account and was paid to the 2nd Respondent Company.</p> <p>In respect of the 3rd ingredient, which is that the Appellant caused the transfer of the sum of N5.1 million vide drafts, Senior Counsel submits that the failure of the 1st Respondent to tender the said drafts leads to the conclusion that this was not proved. He asks the Court to invoke Section 167 (d) of the Evidence Act (supra). The same goes for the 4th ingredient, that not only did the prosecution not produce any draft before the lower Court, the cheques produced were not shown to have been forged having regard to the ingredients for the proof of forgery. Indeed, that evidence of forgery is not even admissible since it was not contained in the Amended Charge. On the fifth ingredient, he submits that no evidence is adduced showing any role played by the Appellant regarding the payment of N51.5 million into the account of BBB Project. He submits that the deduction of the lower Court on this is mere speculation and in criminal trials, suspicion no matter how strong, cannot take the place of legal proof.</p> <p>While the prosecution is not bound to call a particular number of witnesses, it is bound to call every material witness otherwise it would raise reasonable doubt in favour of the Appellant. He submits the since the late Permanent Secretary was a necessary witness, the failure to call him raised a reasonable doubt in favour of the Appellant. </p> <p>Counsel therefore submits that, from the evidence before the lower Court, the prosecution failed to prove beyond reasonable doubt that the Appellant knowingly intended to defraud the Government of Adamawa State and consequently caused the sum of N51.5 million belonging to the said Government to be transferred, vide forged drafts, into the BBB Project account, and this Court is under a duty to set aside the Judgment. He relies on: Amadi V State (1993) 8 NWLR (Pt. 314) 644 at 664; Ojo V FRN (2009) ALL FWLR (Pt. 494) 1461 at 1497, paras B-E; Alake V State (1991) 7 NWLR (Pt. 505) 567; FRN V Mike Amadi (2006) EFCCLR 14; FRN V Odiawa (2006) EFCCLR 110; Abidoye V FRN (supra); Orji V State (2008) 10 NWLR (Pt. 1094) 31 at 47; Tegwonor V State (supra); State V Azeez (supra); Utuk V State (2011) ALL FWLR (Pt. 586) 562 at 569; Iberi V AG Fed. (2014) 5 NWLR (Pt. 1401) 610 at 636; Amodu V State (2010) 2 NWLR (Pt. 1177) 47 at 67-69 paras G-B; &amp; The People of Lagos State V Umaru (supra) at 622, paras D-E. He urged the Court to resolve issue six in the Appellant’s favour.</p> <p>In response, learned Counsel for the Respondent submits that the elements which the prosecution was required to establish to prove causing payment of money and the intention to defraud are:i)    Intent to defraud the Government of Adamawa State;<br /> ii)    Causing the delivery or payment to himself or any other person of any property or money;<br /> iii)    By virtue of any forged or false cheque, promissory note or other negotiable instrument.</p> <p>In respect of the first ingredient, he submits that the prosecution, through the testimony of PW6, established that the 2nd Respondent Company did not execute any contract job for the Adamawa State Government to warrant the payments of the sum of N31.5 million and N21 million respectively belonging to the State Government to it at the time those payments were made. It also proved that the endorsements at the back of Exhibit PW71A (a Habib Bank cheque no. 087368 for N31.5 million), and Exhibit PW71B (a Habib Bank cheque no. 0875930 for N21 million), which gave instructions for the issuance of two drafts in favour of the 2nd Respondent Company, constitute forgeries as the 2nd Respondent Company was not the beneficiary of the two payments in Exhibits PW1A and PW1B, (the payment vouchers). In addition, it was established that, although the drafts in the said sums of money were paid into the 2nd Respondent Company’s account which was controlled by the Appellant by virtue of his being its sole signatory, the actual beneficiary was BBB Project. Since the Exhibits PW7 series (the cheques) were raised specifically to fulfill the purposes as specified in the Exhibit PW1 series (the vouchers), the endorsements at the back of the cheques stating “Pls, issue draft in favour of Al-Akim Ltd payable in Yola”, misrepresented and falsified the purpose for which the cheques ought to have been raised, as the 2nd Respondent Company was clearly not the beneficiary of both vouchers. Thus, the endorsements were done with the intent to defraud the Government and people of Adamawa State.</p> <p>Counsel submits that a false document includes writing in any material part either by erasure, obliteration, removal or otherwise, and making any addition to the body of a genuine document or writing or any other material matter. A document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge. Also, making any material addition to the body of a genuine document or writing and adding to a genuine document or writing any false attestation or endorsement thereto, amounts to making a false document. A document is said to be false if the whole or part of it is made by a person with all falsity and knowledge. Learned Counsel submits that the testimonies of PW4 and PW6 point to the fact that the sum of N21 million meant for joint development projects was diverted from the Joint Account (JAC) and paid into the 2nd Respondent’s account, from where it was transferred to the BBB Project account with GTBank vide bank drafts. Since this evidence was not challenged during cross-examination, he argues that it should be accepted as true. <br /> This transfer was buttressed by the entry posted in Exhibit PW6C1 (statement of account) which confirmed that a draft of N21 million was deposited by Al-Akim Investment Nig. Ltd (the 2nd Respondent Company) into the BBB Project account on 28-01-2003 with a value date of 03-02-2003. And although the 2nd Respondent Company’s AfriBank statement of account was not tendered in evidence to show when the N21 million was credited into the account, (as was done with Exhibit PW6C2), still Exhibit PW6C1 clearly showed when the sums of N31.5 million and N21 million were credited into the account. Counsel submits that Exhibit PW6C1 speaks for itself and cannot be varied by oral evidence. He therefore submits that the prosecution thereby sufficiently linked the Appellant and the 2nd Respondent Company with the sum of N21 million. </p> <p>Counsel therefore submits that by these facts, the prosecution established the three ingredients required to prove the offence to wit: the purpose for which Exhibits PW71A and PW71B were raised and the subsequent transfers of the amounts involved to BBB Project account by the Appellant and the 2nd Respondent Company, which was intended to defraud the Adamawa State Government, and which they did. Hence he urged the Court to resolve issue six in favour of the 1st Respondent. He relies on: Moore V FRN (2014) ALL FWLR (Pt. 712) 1775; Odua V FRN (2002) 5 NWLR (Pt. 761) 615; Osondu V FRN (2000) 12 NWLR (Pt. 682) 483 at 504; Nigeria Air Force V James (supra) at 321, paras E-H; 322, para H; &amp; Amizu V Nzeribe (1989) 4 NWLR (Pt. 118) 755 at 771, paras G-H &amp; 772, at para A.<br /> In a reply to these submissions on the subject of forgery, learned Senior Counsel for the Appellant submits that in view of the lower Court’s finding at page 279 of the Record wherein it did not decide whether or not the 1st Respondent proved forgery, the 1st Respondent has no right to canvass as he has done so without filing a cross-appeal or a Respondent’s notice for the Judgment to be affirmed on other grounds, that forgery was actually proved. He asked the Court to discountenance the submission.</p> <p>Secondly, Counsel submits that forgery was not included in the Amended Charge (as has already been argued in the Appellant’s Brief). Thus, any evidence adduced thereon goes to no issue. He therefore submits that the cases of Moore V FRN (2014) ALL FWLR (Pt. 712) 1775; Odua V FRN (2002) 5 NWLR (Pt. 761) 615; Osondu V FRN (2000) 12 NWLR (Pt. 682) 483; &amp; NAF V James (2002) 18 NWLR (Pt. 798) 295 relied on do not support its position that the evidence of forgery is admissible to establish forgery where forgery, which though prescribed in the statute, was not stated in the Amended Charge. Thirdly, on the issue of diversion, Counsel submits that, by arguing that the Appellant was not charged, tried and convicted with diversion, and yet arguing the offence of diversion against the Appellant, the 1st Respondent approbated and reprobated. He urged the Court to discountenance the submissions thereon. He therefore again urged the Court to resolve issue six in favour of the Appellant.</p> <p>With regard to issue seven, learned Counsel for the Appellant submits that the success of any of the issues already argued establishes that the Appellant was wrongly convicted, as such the conviction and sentence must be set aside. Furthermore, that whereas the lower Court convicted the Appellant under Section 1(2) (b) of the Miscellaneous Offences Act (supra), it sentenced him for the offences of stealing, diversion, abuse of office and public trust. In addition, while the punishment for the offence under the Act (supra) is, “a term not exceeding 21 years without the option of fine”, the Appellant was sentenced to ten years imprisonment and ordered to return “the sum of N51.5 million to the Adamawa State Local Government Joint Account Fund from where it was stolen and diverted by him”. Counsel submits that this Court has the power to set aside the conviction and sentence or to reduce the sentence in appropriate circumstances. He therefore submits that the sentence was not only excessive, but it was not supported by the facts and law. He relies on The People of Lagos State V Umaru (supra); &amp; Adejobi V State (2007) 22 WRN 157 at 187. He urged the Court to resolve this issue in favour of the Appellant. Learned Senior Counsel finally prayed the Court to set aside the conviction and sentence of the Appellant and grant the reliefs as per the Notice of Appeal.  <br /> In response to these submissions, learned Counsel for the 1st Respondent submits that, taking into account the oral and documentary evidence adduced by the 1st Respondent against the Appellant, the trial Court was right in convicting the Appellant as charged. He also contends that, by virtue of the penalty for the offence as set out in Section 1(2) (b) of the Miscellaneous Offences Act (supra) which provides for a term not exceeding 21 years imprisonment, the sentence of 10 years was not excessive. Finally, that the order for the refund of the sum of N51.5 million to the Adamawa State Local Governments Joint Account Committee, (as the victim of the crime of the Appellant), was in substantial compliance with Section 319 of the Administration of Criminal Justice Act (ACJA), 2015. He urged the Court to resolve this issue in favour of the 1st Respondent, and to affirm the Judgment of the lower Court.</p> <p>In a brief reply on point of law, Senior Counsel for the Appellant submits that since the Administration of Criminal Justice Act, 2015 was not in existence at the time of the commission of the offence in 2002, it was a violation of the Appellant’s right to fair hearing under Section 36(6) of the Constitution (supra), to the effect that the Appellant can only be punished in accordance with an existing law. In the alternative, he submits that the order for the refund of the money still contravenes Section 36(9) &amp; (12) of the Constitution (supra) because he was sentenced for the offence of stealing and diversion. Thus, Section 319 of the ACJA (supra) cannot be a justification to sentence the Appellant for offences of stealing and diversion, not being offences he was charged for. </p> <p>Findings:<br /> Quite honestly, to my mind, the answer to issue six is a total re-hash of the answers already given in the preceding issues 1-5 above. It is no wonder that learned Senior Counsel for the Appellant started off by stating (at paragraph 1.139 at page 21 of his Brief of argument) that: “Resolution of any of the 5 issues argued above in favour of the Appellant is a clear evidence that the 1st Respondent has not proved the guilt of the Appellant beyond reasonable doubt in this Appeal. We therefore humbly adopt the argument on all the issues in this respect.”  That being the case, I equally adopt all my findings on each of the five issues already canvassed in this Appeal. This issue is more or less a mere surplus age. It must be remembered the mere repetition of issues does not, without more, help the case of a party to an Appeal. Instead, precision and succinctness are virtues of a good Brief of argument. Nevertheless, for whatever it is worth, I will proceed to plough through the evidence once again with a view to settling this issue. </p> <p>The first ingredient of the offence identified is that the Appellant caused the payment of the sums of N31.5 million and N21 million through cheques Nos. 0873368 dated 26/11/2001 and 0875930 dated 28/01/2003 into account no. 3613406139110 in Guaranty Trust Bank operated by the BBB Project. The prosecution established through credible documentary evidence vide Exhibits PW1A, PW1B, PW71B and PW71B, (payment vouchers and cheques), that the total sum of N51.5 million belonging to the Local Governments Joint Account Committee (LGs JAC) was paid into the account of the 2nd Respondent, Al-Akim Investment Ltd from where it was later lodged into the account of BBB Project. By the evidence of the PW1, PW4, PW6, DW2 and DW3, it was established that the Appellant presided over the meetings of the LGs JAC as Chairman when the funds of the account were variously disbursed. The Committee authorised the payment of the sum of N31.5 million to INEC to facilitate the Voters Registration exercise and the sum of N21 million for its development projects. However, instead of the monies to be used for the purposes allocated, they found their way, first into the account of the 2nd Respondent, a company which, by the Appellant’s own admission in Exhibit PW6B, he had more than a passing interest. As a matter of fact, he admits in Exhibit PW6B and in his oral evidence as DW2 to being its erstwhile Chairman/CEO cum Director. It was further established through the evidence of the PW5, (the Branch Manager of GT Bank Yola), and DW4 (the present Managing Director of the 2nd Respondent), that the Appellant on the Company’s documents, still remains the sole signatory to the 2nd Respondent’s account. These monies belonging to the Adamawa State LGs JAC was then paid, by an instruction written at the back of the cheques, (Exhibits PW71A and PW71B) into the account of BBB Project. Now the Appellant very conveniently lays the blame for the issuance of the cheques and the instruction for payment of the monies into the account of BBB Project, at the door of the Permanent Secretary who is deceased, and insists that he should have been called to clear the air, the fact of his demise notwithstanding. Well, by the evidence of the PW1 and PW4, the Appellant was part an important part of the decision making of the LGs JAC as its Chairman, while the deceased Permanent Secretary was merely its Secretary, and his duty was to implement the decisions of the Committee. Now, lest it be misconceived from the evidence of the PW4, (the Chief accountant of the Ministry), who was also ostensibly the recipient of the instruction from the late Permanent Secretary to prepare the cheques, the evidence of PW1, (the erstwhile Chairman of Mayo-Belwa LGC) is very instructive and revealing. He was a member of the LGs JAC where decisions were taken in respect of the sum of N51.5 million and more. He stated inter alia thus at pages 82-84 of the Record:</p> <p>“I remember during the monthly joint account meeting of the Local Governments. The members comprises (sic) of the 21 Local Government Chairmen, the Hon, Commissioner of Local Government and Chieftaincy Affairs i.e. all the 2nd accused. We all agreed i.e. the 21 Local Government Area Chairmen that we should contribute N1.5 million to INEC for registration of voters. After the agreement, a voucher to that effect was raised, which each of us, i.e. all the 21 Local government Area Chairmen signed authorising the withdrawal of the sum from each Local Government Area account. The total contribution was around N31 million... I can also remember that in January, 2003, during the monthly joint account meeting, we the 21 Local government Chairmen of Adamawa State jointly approved that the sum of N2.5 million be deducted from each Local Government account as “joint development fund”. After the approval, we each signed the vouchers... The amount was accordingly deducted from each Local Government account, i.e. totalling N46 million... The Chairman of the Local Government Joint Account Committee is Mr. Babani Elias... I don’t think that the contribution could be used for any purpose other than what it was meant for.” (Emphasis supplied)</p> <p>Even though the PW1 and PW4 (the Chief Accountant) did their best to attempt to extricate the Appellant from involvement in the wrongful application of these monies; and made every effort to point fingers at the deceased Permanent Secretary as being responsible for the way in which the monies voted for one purpose were disbursed for a different purpose, the fact remains that the monies found their way, not into the pocket of the late Permanent Secretary, but  into the account of the 2nd Respondent, a company in which the Appellant (as self-professed), has considerable interest, is very telling and significant. The Exhibit PW5, consisting of the opening of account papers being the mandate papers and the Memorandum &amp; Articles of Association of the 2nd Respondent Company, clearly establish the Appellant’s considerable interest in the company. These documents, which portray him as the Chairman/CEO of the 2nd Respondent as well as the sole signatory to its account, are by law, preferred to his oral testimony where he, not surprisingly, denies any involvement with the 2nd Respondent. It is settled law that oral evidence cannot be used to contradict documentary evidence, which is always to be preferred over oral evidence; documentary evidence being the hangar used to assess oral evidence.</p> <p>In the face of these implicating pieces of evidence, when the Appellant was invited to clear the air on his very apparent role in the handling of these monies belonging to the LGs JAC to the advantage of a company of which he was the Chairman/CEO and sole signatory, he made a very pathetic attempt at explaining his role. In his own words in Exhibit PW6B, his extra-judicial statement to the EFCC, he stated as follows:</p> <p>“I have been shown GTB bank account statement of BBB Project and shown where Al-Akim Investment paid 50% of pledge made by them valued at N31, 500, 000 which reflected in the account. Al-Akim is a company I have interest and is not my personal account, the company made a pledge on behalf of BBB Project based on the cheques it has at its disposal...” (Emphasis supplied)</p> <p>What a curious coincidence that, being the Chairman of the LGs JAC where decisions were taken to commit monies for certain specific projects, the monies found their way into the account of the 2nd Respondent, where the Appellant is the sole signatory; which monies were, supposedly through the instruction of a deceased officer of the Ministry, paid into the BBB Project account. If the Appellant’s story in Exhibit PW6B is to be believed, the lodgement of the sum of N51.5 million vide Exhibits PW71A and PW71B, into the account of BBB Project was to redeem pledges made at a fund raiser where he again was one of the “...collectors of donations from various people and organisations... which were paid into an account of Bring Boni Back Project” (see Exhibit PW6B). </p> <p>However, the vouchers themselves from which the cheques were raised, (Exhibits PW1A and PW1B), tell a different story. Contrary to the concocted story of the Appellant, the oral evidence of PW1 and PW4 corroborate Exhibits PW1A and PW1B very nicely. Rather than the monies being “pledges from a fund raiser”, they were clearly monies belonging to the Adamawa State LGs Joint Account Fund (as reflected on the face of the cheques) that had been committed for developmental projects. Under the Appellant’s watch and direction as Chairman of the LGs JAC, they were paid into the 2nd Respondent’s account and ultimately found its way into the BBB Project account. </p> <p>By virtue of these convincing and coherent pieces of circumstantial evidence, taken along with the evidence of PW6, the police officer who investigated the allegations and provided all the missing links, it was clearly established that the Appellant, with a clear intention to defraud the Adamawa State Government, caused the payment of the total sum of N51.5 million, as reflected in Exhibits PW7A and PW7B, into the account of BBB Project with Guaranty Trust Bank, monies which were meant for Adamawa State Local Governments’ Joint development projects. <br /> In addition, I agree with the 1st Respondent that making any material addition to the body of a genuine document or writing, and adding to a genuine document, or writing any false attestation or endorsement on a document, amounts to making a false document. A document is said to be false if the whole or part of it is made by a person (personally or by proxy) with all falsity and kno