Court of Appeal

Mainstreet Bank Limited v General Steel Mills Limited And Ors (L 906 of 2013) [2016] NGCA 28 (26 May 2016);

Anonymous — Wed, 28 Jul 2021 08:34:54 +0000

Mainstreet Bank Limited v General Steel Mills Limited And Ors (L 906 of 2013) [2016] NGCA 28 (26 May 2016);

Flynote

CL, Have his cause heard (fair trial), Documentary Evidence

Anonymous (not verified) Wed, 07/28/2021 - 08:34

Headnote and holding

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.

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.

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.

In the result, the appeal succeeded even though the first issue was held in favor of the respondent.

In the Court of Appeal

Holden at Lagos

Between

Appellant

MAINSTREET BANK LIMITED

and

Respondent

GENERAL STEEL MILLS LIMITED
GENERAL PIPE INDUSTRY LIMITED
UNITED METAL PLASTICS LIMITED
INTERNATIONAL ENAMEL WARE INDUSTRY LIMITED

JUDGMENT

(Delivered By TIJJANI ABUBAKAR, JCA)
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.
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:
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
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.
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.

The learned counsel for the Respondent nominated two issues for determination; the issues are also reproduced as follows:
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.
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.
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.

ISSUE ONE

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.

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.

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.

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).

Learned counsel referred to WILLIAMS & ORS V. HOPE RISING VOLUNTARY FUNDS SOCIETY [1982] All NLR 1 & 2 SC 145 and IDAM UGWU & 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.
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.

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).
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.

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.
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.

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.

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.

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.

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

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.
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 & 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.
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

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.
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.

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.

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.

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.

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 & ANOR Vs. UDUAGHAN & ORS (2013) LPELR-20805(SC), CHUKWU & ANOR Vs. INEC & ORS (2014) LPELR-22221(SC) 52 and NGERE & ANOR Vs. OKURUKET & 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.
In the case of OKOCHA Vs. HERWA LTD (2000) 15 NWLR (Pt. 690) 249 it was held as follows and I quote:

"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."

See: also GOV BENUE STATE Vs. NIGERIAN CONSTRUCTION CONSORTIUM LTD (1997) 3 NWLR (Pt. 495) 610 and NIGERIAN AGRICULTURAL & COOPERATIVE BANK LTD Vs. MR. LEWECHI OZOEMELAM (2004) LPELR - 5955.
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:

"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."

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 & 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;

"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".

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.

ISSUES TWO AND THREE
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,

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.
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 & ANOR Vs. MAKINDE & 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.

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.

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.

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.
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.

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.
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.

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.

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 & ANOR Vs. UBA & ANOR (2008) 8 SCM 189, FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR & 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.

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 & 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.

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.

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.
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.

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 & ANOR. Vs. OKEI & 2 ORS. [1973] 12 S.C, NKADO Vs. OBIANO [1997] 5 NWLR (Pt.503) 31AKANDE Vs. ADISA &ANOR. [2012] LPELR-7807 (SC) 59.
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 & ORS 2008 LPELR - 3696 (CA), My Lord and Learned Brother TSAMIYA, JCA said as follows:
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...."
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.

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.

Section 133 of the Evidence Act, 2011 states:
"(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.
(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.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting presumptions.
Section 134 reads:
"The burden of proof shall be discharged on the balance of probabilities in all civil proceeding."
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:
"10. The Plaintiffs accounts listed in paragraph 8 above were over charged and deducted at various times by the Defendant
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.
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.
13.
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.
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.
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.
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.
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 Plaintiffs 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.
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.
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.
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.
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.
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.
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.
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.
26.
27.
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."

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?
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.
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.

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:

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..."

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.

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:

"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 plaintiffs 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.

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..."
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 & Ors. [2014] 11 NWLR (Pt. 1419) 549 at 573, OKORO JSC, said as follows and I quote.
"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...."
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.
Parties in this appeal shall bear their respective costs.

SAMUEL CHUKWUDUMEBI OSEJI I had the privilege of reading the draft copy of the judgment just delivered by my learned brother TIJJANI ABUBAKAR JCA.
I agree with his reasoning and conclusion that the appeal be allowed in part.
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.

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.

Counsel

Ikenna Onwusika with Edward Porbeni for the Appellant
J. 0. Omisade with A. Abbass, D. Dibi for the Respondent

Law report citations

In the Court of Appeal

Holden at Lagos

Between

Appellant

MAINSTREET BANK LIMITED

and

Respondent

GENERAL STEEL MILLS LIMITED
GENERAL PIPE INDUSTRY LIMITED
UNITED METAL PLASTICS LIMITED
INTERNATIONAL ENAMEL WARE INDUSTRY LIMITED

JUDGMENT

ISSUE ONE

Counsel

Ikenna Onwusika with Edward Porbeni for the Appellant
J. 0. Omisade with A. Abbass, D. Dibi for the Respondent

Armah Esq v Chief Horsfall (L 995 of 2014) [2016] NGCA 26 (30 May 2016);

Anonymous — Wed, 28 Jul 2021 08:34:52 +0000

Armah Esq v Chief Horsfall (L 995 of 2014) [2016] NGCA 26 (30 May 2016);

Flynote

CL, Corporate Veil, Separate Legal Personality

Anonymous (not verified) Wed, 07/28/2021 - 08:34

Headnote and holding

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.

The main issue was whether the defendant was liable to pay the debts of the company.

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.

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.

In the Court of Appeal

Holden at Lagos

Between

Appellant

EMMANUEL ARMAH ESQ

and

Respondent

CHIEF ALBERT KORUBO HORSFALL

JUDGMENT
(Delivered By CHINWE EUGENIA IYIZOBA, JCA)
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:

"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.
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.
3.Cost of the action."

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.

The Respondents 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 Appellants 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 Appellants cause of action.
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.

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 appellants claims was hinged on the following facts viz:

(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.

(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.

(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.

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.

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:
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
ii. Whether the claimant was at liberty to elect the party to sue in the circumstances of this case.

The Respondent's brief of argument was settled by Victor Ogude Esq. and therein he also distilled two issues for determination as follows:

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.
2.Whether the findings of fact made by the lower court on the issues submitted before it for determination can be faulted or impeached.

APPELLANT'S ARGUMENTS:
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.

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.

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.

RESPONDENTS ARGUMENTS:
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.

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.

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.

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:

(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'.

(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'

(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.

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.

RESOLUTION:
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:

"One of the principal players in the unfolding drama, Mrs. Tiena Armah then responded vide letter dated 22/11/2004-Exhibit C3.
The following facts emerged therefrom:

1.The legal services rendered by Armah Law Chambers was to Copinasa Nig. Ltd.
2.Mrs. Tiena Armah had undertaken professional services under the aegis of Armah Law Chambers.
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.
4.Copinasa Nig. Ltd was to pay for the services.
5.Copinasa Nig. Ltd was liable to pay for the work done at its instance and its outstanding debt.

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?
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 & Allied Matters Act 2004 and Onuekwusi & Ors vs. The Registered Trustees of the Christ Methodist Zion Church (2011) 6 NWLR 341 where the Supreme

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"

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:

"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.

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.

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."

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.

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.

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.

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.

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.

JAMILU YAMMAMA TUKUR JCA 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.
I also dismissed same and I abide by the consequential orders made in the judgment.

Counsel

O. S. SOWEMIMO SAN WITH C. R. COKER (MISS) AND D. M. IFARAJIMI (MISS) FOR THE APPELLANT,

V. O. OGUDE ESQ. FOR THE RESPONDENT,

Law report citations

In the Court of Appeal

Holden at Lagos

Between

Appellant

EMMANUEL ARMAH ESQ

and

Respondent

CHIEF ALBERT KORUBO HORSFALL

(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.

"One of the principal players in the unfolding drama, Mrs. Tiena Armah then responded vide letter dated 22/11/2004-Exhibit C3.
The following facts emerged therefrom:

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.

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.

Counsel

O. S. SOWEMIMO SAN WITH C. R. COKER (MISS) AND D. M. IFARAJIMI (MISS) FOR THE APPELLANT,

V. O. OGUDE ESQ. FOR THE RESPONDENT,

Nyavo v Zading (YL 124 of 2015) [2016] NGCA 10 (28 July 2016);

Anonymous — Wed, 28 Jul 2021 08:34:52 +0000

Nyavo v Zading (YL 124 of 2015) [2016] NGCA 10 (28 July 2016);

Flynote

CL, Notice of Appeal, Jurisdiction

Anonymous (not verified) Wed, 07/28/2021 - 08:34

Headnote and holding

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.

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.

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.

In the Court of Appeal

Holden at Yola?

Between

Appellant

MOHAMMED NYAVO

and

Respondent

BENJAMIN ZADING

JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)

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.
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:

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.
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.
3.   AN ORDER of this Honourable Court compiling the defendant to hand possession of the said land.
4.   The cost of litigation.

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 Appellants Counsel later addressed the Court, and on 31st day of July, 2015, the trial Court in its Judgment, dismissed the Appellants 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.

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 Appellants 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.

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 Appellants Counsel filed and adopted his Written Address, after which the trial Court entered Judgment dismissing the case of the Appellant.

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 Respondents 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 Respondents 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.

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 Appellants 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 Appellants Brief of argument filed on 23-12-15 and pages 7-14 of the Appellants 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.

In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondents Brief of argument in urging the Court to dismiss the Appeal.

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.

RULING ON PRELIMINARY OBJECTION

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:

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.
2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.

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.

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.

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.
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:

MOHAMMED NYAVO PLAINTIFF
And BENJAMIN ZADING DEFENDANT

The parties as reflected on the Notice of Appeal (at page 142 of the Record of Appeal) are:

MOHAMMED NYAVO APPELLANT
VS
BENJAMIN ZADING RESPONDENT

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 Appellants 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.
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.

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 Appellants 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

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.

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.

Findings:

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:

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.

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.
The Respondents first ground of objection in the Notice of preliminary objection reads as follows:

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.

It is hinged on Order 6 Rule 2 of the Court of Appeal Rules, 2011. The Respondents 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; & Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618, to mention a few.

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:

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)

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?

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.

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.

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:

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.

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:

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:

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)

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 Respondents first ground of objection is therefore overruled.

The second ground of objection in the Notice of preliminary objection is:
2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.

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:

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)

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.

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.

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.

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 Counsels 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!

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.

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.

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.

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.
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.

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.
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.

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).
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 Appellants 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 & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import & Export V Adebayo (2003) FWLR (Pt. 140) 1686.

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.

SAIDU TANKO HUSAINI
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
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.

BIOBELE ABRAHAM GEORGEWILL, JCA:
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.

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:

Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the court on the hand labour in vain

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. YarAdua (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.

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:

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.

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.

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.

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:

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
Again, in Shelim V. Gobang(2009) Vol. 173 LRCN 36 @ 42, it was emphatically stated thus:

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.
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:
The Court shall have the power to strike out a notice of appeal when the appeal is not competent..........
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.
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.?

Counsel

Martin Milkman Esq. with P.E. Owachu Esq., appears for the Appellant.
L.J. Ezekiel (Mrs.) appears for the Respondent

Law report citations

In the Court of Appeal

Holden at Yola?

Between

Appellant

MOHAMMED NYAVO

and

Respondent

BENJAMIN ZADING

JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)

In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondents Brief of argument in urging the Court to dismiss the Appeal.

RULING ON PRELIMINARY OBJECTION

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:

MOHAMMED NYAVO PLAINTIFF
And BENJAMIN ZADING DEFENDANT

The parties as reflected on the Notice of Appeal (at page 142 of the Record of Appeal) are:

MOHAMMED NYAVO APPELLANT
VS
BENJAMIN ZADING RESPONDENT

Findings:

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.

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:

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:

The second ground of objection in the Notice of preliminary objection is:
2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.

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:

Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the court on the hand labour in vain

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:

Counsel

Martin Milkman Esq. with P.E. Owachu Esq., appears for the Appellant.
L.J. Ezekiel (Mrs.) appears for the Respondent

Tuskar Resuorces Limited -vs- Cavendish Petroleum Nig. (L 348 of 2) [2004] NGCA 15 (26 April 2004);

Anonymous — Wed, 28 Jul 2021 08:34:52 +0000

Tuskar Resuorces Limited -vs- Cavendish Petroleum Nig. (L 348 of 2) [2004] NGCA 15 (26 April 2004); Anonymous (not verified) Wed, 07/28/2021 - 08:34

IN THE COURT OF APPEAL HOLDEN AT LAGOS

CORAM
JAMES OGENYI OGEBE JUSTICE, COURT OF APPEAL
DALHATU ADAMU JUSTICE, COURT OF APPEAL
SULEIMAN GALADIMA JUSTICE, COURT OF APPEAL

BETWEEN
TUSKAR RESUORCES LIMITED APPELLANT

AND

CAVENDISH PETROLEUM NIG. LTD RESPONDENT

JUDGMENT (DELIVERED BY J. O. OGEBE, JCA)

The appellant sued the respondent in the Federal High Court, Lagos seeking a number of declaratory and injunctive reliefs.

The appellant filed a statement of claim along with the writ of summons and the respondent was duly served with the same.

On the 27th of October 2000 the respondent filed a statement of defence out of time and served an advanced copy on the appellants counsel. On the 14th of November 2000 the bailiff of the court also served the statement of defence on the appellants counsel. On 2nd of November 2000 the respondents 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.

On the 16th of November 2002 the trial Judge granted the respondents 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.

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 appellants 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 respondents application.

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:

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?

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?

The respondent also filed a brief of argument and formulated 2 issues as follows:

i) Whether under the circumstances the appellant should have sought leave of court before seeking to discontinue the action.

ii) Whether the Notice of Discontinuance filed by the appellant was an abuse of process.

The appellant filed a reply-brief.

The learned counsel for the appellant submitted that the processes served on him in respect of the respondents statement of defence prior to the grant of the respondents 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 courts order granting extension of time; it follows therefore that the trial court was wrong in holding that the time to discontinue the appellants 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.

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.

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.

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.

The sole question that calls for determination in this appeal is the time when the appellants 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:

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.

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 appellants 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 respondents 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.

It is beyond dispute that all the processes served on the appellants 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 respondents 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.

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.

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 courts process. The appellant was exercising the option given to it by the rules of court.

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 respondents 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.

J. O. OGEBE

JUSTICE, COURT OF APPEAL APPEARANCE

Mr. Ayodele Akintunde and Miss Ogechi Ugozi for the appellant.

Miss Uche Nwokedi for the respondent.

COURT OF APPEAL NIGERIA

Law report citations

IN THE COURT OF APPEAL HOLDEN AT LAGOS

CORAM
JAMES OGENYI OGEBE JUSTICE, COURT OF APPEAL
DALHATU ADAMU JUSTICE, COURT OF APPEAL
SULEIMAN GALADIMA JUSTICE, COURT OF APPEAL

BETWEEN
TUSKAR RESUORCES LIMITED APPELLANT

AND

CAVENDISH PETROLEUM NIG. LTD RESPONDENT

JUDGMENT (DELIVERED BY J. O. OGEBE, JCA)

The appellant sued the respondent in the Federal High Court, Lagos seeking a number of declaratory and injunctive reliefs.

The appellant filed a statement of claim along with the writ of summons and the respondent was duly served with the same.

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:

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?

The respondent also filed a brief of argument and formulated 2 issues as follows:

i) Whether under the circumstances the appellant should have sought leave of court before seeking to discontinue the action.

ii) Whether the Notice of Discontinuance filed by the appellant was an abuse of process.

The appellant filed a reply-brief.

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.

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.

J. O. OGEBE

JUSTICE, COURT OF APPEAL APPEARANCE

Mr. Ayodele Akintunde and Miss Ogechi Ugozi for the appellant.

Miss Uche Nwokedi for the respondent.

COURT OF APPEAL NIGERIA

Alhassan v Federal Republic of Nigeria (YL 58 of 2015) [2016] NGCA 11 (27 June 2016);

Anonymous — Wed, 28 Jul 2021 08:34:52 +0000

Alhassan v Federal Republic of Nigeria (YL 58 of 2015) [2016] NGCA 11 (27 June 2016); Anonymous (not verified) Wed, 07/28/2021 - 08:34

IN THE COURT OF APPEAL

Holden at Yola

Between

APPELLANT

DANTSOHO ALHASSAN

and

RESPONDENT

FEDERAL REPUBLIC OF NIGERIA

JUDGMENT
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)
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.

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.

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.

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 Respondents 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 appellants 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.

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:

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.

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:

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.

See pages 89 90 of the printed record.

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:

1. GROUND ONE
The learned trial Judge erred in law when he dismissed the Appellants Motion seeking an order of the lower Court releasing the Appellants vehicles 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.

PARTICULARS OF ERROR:

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
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.
c.   The Appellants 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 Appellants motion of 1st December was filed at and determined by the lower court.
d.   There was no order for the forfeiture of either the Appellants said Mitsubishi Pajero Jeep with Registration No. CL 488 JJJ or the Appellants 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.
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.
f.   No order of forfeiture interim or final was produced before the trial Judge by the Respondent before the Court dismissed the Appellants Motion for the release of the vehicle, Mitsubishi Pajero Jeep
g.   The trial Court had no basis in law to refuse and/or dismiss the appellants application for the release of the vehicle
2.   GROUND TWO:

The lower Court erred in law when it held as follows:-

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

PARTICULARS OF ERROR:

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.
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.
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.
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 Appellants application for the release of the seized vehicle.
e.   There was no basis in law or in fact for the holding of the learned trial judge
f.   The finding and decision of the learned trial judge is a flagrant breach of the Appellants constitutional right to fair hearing

3. GROUND THREE:

The Ruling/Judgment of the lower Court is against the weight of evidence.

In line with the rules of this court parties on both sides filed and exchanged their briefs of argument.

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:

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 Appellants application filed on 1st December, 2014, the trial court ought not to have granted the said application?(Grounds 1, 2 and 3).

Upon the Appellants brief being served, the Respondent on the 20th may, 2016 and at page 6 thereof raised three (3) issues for determination of court, thus:

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 Appellants Motion for the release of the same Mitsubishi Pajero Jeep to the applicant/appellant (Ground 1, 2 & 3).
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 & 3).
iii.   Whether this present appeal is competent in the light of issues 1 and 2 above (Grounds 1 2 & 3)

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.

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.

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. Yaradua (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 appellants brief of argument in addressing this appeal. The Issue again, for the avoidance of doubt is:

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 Appellants application filed on 19th December, 2014 the trial Court ought not to have granted the said application? (Ground 1, 2and 3).

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.
Learned appellants 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.

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 appellants 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 appellants counsel urged on this court to set aside the order of the trial court refusing and dismissing appellants 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.

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 appellants application for the release of the said vehicle were in order.

Drawing inspiration from the provision of the National Drug Law Enforcement Act, particularly Section 3 (1) (c) (f), 27, 31 and33 learned respondents 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.
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.

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.

It is further argued that the appellant is a drug peddler who has no other trade. Learned respondents 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.

According to the learned respondents 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.

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.

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.

It is respondents 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.

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

Respondents 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.

In reference to the submission of the respondents 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.

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.

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.

Arguing par contra to the submission made at in the respondents 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.

OPINION

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.
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:

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 Respondents additional record of appeal.
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
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.
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.

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.

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:-

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-
(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
(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
(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.
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
(f) adoption of measures which shall include coordinated preventive and repressive action introduction and maintenance of investigative and control techniques;

26(1) the Federal High Court shall have exclusive jurisdiction to try offenders under this Act.

(2) the Federal High Court shall have power to impose the penalties provided for in this Act.

27(1) Any person convicted of an offence under this Act shall forfeit to the federal Government

(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;
(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;
(c) any of the persons 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.

(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

31 The following property is subject to forfeiture to the Federal Government and no other propriety right shall exist in them-
(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;

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-
(a)   xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(b)   xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(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

33(1) Any property subject to forfeiture under this Act may be seized by the Agency in the following circumstances
(a) if the seizure is incidental to an arrest or search;
(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

36 Where-
(a) the assets or properties of any person arrested for an offence under this Act,
(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

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

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 persons assets and properties already subjected to an interim order under this Act.

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.

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.
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?

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.
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.
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.

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 appellants Motion on Notice of 1st December, 2014 seeking the release of his vehicle. See argument of counsel at paragraph 4. 16 in the appellants 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;
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 persons assets and properties already subject to an interim order under this Act.

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:

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:

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
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.

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.

Those are the facts placed before the Federal High Court on the 11th May, 2015 when it heard and dismissed the appellants 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:
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.

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.

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.

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.

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.

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.

Ordered according.

JUMMAI HANNATU SANKEY, J.C.A.
I read before now the Judgment of my learned brother, Husaini, J.C.A.
I am in agreement with him that the Appeal is devoid of any merit and it should be dismissed.
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.

BIOBELE ABRAHAM GEORGEWILL, JCA:
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.
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.?

COUNSEL

1. Hassan Taiwo Fajimite., Esq., for the Appellant.
2. B. S. Abdullahi, Esq., for the Respondent.

Law report citations

IN THE COURT OF APPEAL

Holden at Yola

Between

APPELLANT

DANTSOHO ALHASSAN

and

RESPONDENT

FEDERAL REPUBLIC OF NIGERIA

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.

See pages 89 90 of the printed record.

PARTICULARS OF ERROR:

The lower Court erred in law when it held as follows:-

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

PARTICULARS OF ERROR:

3. GROUND THREE:

The Ruling/Judgment of the lower Court is against the weight of evidence.

In line with the rules of this court parties on both sides filed and exchanged their briefs of argument.

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:

Upon the Appellants brief being served, the Respondent on the 20th may, 2016 and at page 6 thereof raised three (3) issues for determination of court, thus:

OPINION

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:-

26(1) the Federal High Court shall have exclusive jurisdiction to try offenders under this Act.

(2) the Federal High Court shall have power to impose the penalties provided for in this Act.

27(1) Any person convicted of an offence under this Act shall forfeit to the federal Government

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:

Ordered according.

COUNSEL

1. Hassan Taiwo Fajimite., Esq., for the Appellant.
2. B. S. Abdullahi, Esq., for the Respondent.

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);

Anonymous — Wed, 28 Jul 2021 08:34:52 +0000

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); Anonymous (not verified) Wed, 07/28/2021 - 08:34

IN THE COURT OF APPEAL HOLDEN AT LAGOS

CORAM
C. B. OGUNBIYI JUSTICE, COURT OF APPEAL

BETWEEN
1. ZEEK OIL NIGERIA LIMITED APPELLANTS/APPLICANTS
2. CHIEF (DR.) EZEKIEL AINABE
AND
1.   NIGERIAN DEPOSIT INSURANCE CORPORATION
2.   PERMANENT SECRETARY MINISTRY OF DEFENCE RESPONDENTS

RULING

(DELIVERED BY CLARA BATA OGUNBIYI, JCA)

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.

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.

3. AN ORDER GRANTING EXTENTION OF TIME within which the defendants may file their Notice of Appeal.

4. SUCH FURTHER OR OTHER ORDER(S) that the Honourable Court may deem fit to make in the circumstances.

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 courts 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.

Further reference was made to the case of Prince Ashimu Isiaka and Others v Saidi Ogundimu & 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.

Further reasons enumerated and supporting the grounding of the reliefs were restated by the said counsel as follows:-

(1) It is common ground between parties that the judgment sought to be appealed was based on an admission.

(2) It was also delivered on the 4th April, 2005 and finally,

(3) It is also not in dispute that execution was levied on the 14th November 2005.

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.

Learned counsel firmly relied on exhibits AA and BB and reiterated the applicants failure to satisfy the two conditions required to earn the courts 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.

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.

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)

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.

(N) That the Notice of Appeal contains substantial grounds raising vital issues of law bordering on inadmissible piece of evidence.

(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.

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.

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:-

(1) Whether the appellants showed by affidavit good and substantial reasons for their failure to appeal within the prescribed time and

(2) Whether the Court of Appeal rightly exercised its discretion in refusing the application for extension of time within which to appeal.

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.

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.

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. .

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.

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.

CLARA BATA OGUNBIYI, JUSTICE, COURT OF APPEAL

Counsel:

R. Okonokhua for the applicants.

A. A. Adewunmi for the respondents with him Mrs. O. Jimoh.