PATRICK MICHAEL & ORS v. BANK OF THE NORTH(2015)

PATRICK MICHAEL & ORS v. BANK OF THE NORTH

In The Supreme Court of Nigeria

On Friday, the 15th day of May, 2015

SC.248/2003

RATIO

ATTITUDE OF THE COURT TO PROLIFERATION OF ISSUES FOR DETERMINATION

In the appellants’ brief more than one issue was formulated from grounds 1, 5 and 8. This Court has discouraged the practice of splitting a ground of appeal into a number of issues. See: A-G, Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. The splitting of a ground into more than one issue renders the issues wider than the grounds of appeal complained of. See: Highgrade Maritime Services Ltd v. First Bank (Nig) Ltd. (1991) 1 NWLR (Pt. 167) 290. PER KUMAI BAYANG AKA’AHS, J.S.C.

PURPOSE OF ISSUES FOR DETERMINATION

The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See: Ogbuanyiya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551. PER KUMAI BAYANG AKA’AHS, J.S.C.

EFFECT OF THE PRELIMINARY OBJECTION WHERE THE RESPONDENT FAILED TO FILE THE NOTICE OF PRELIMINARY OBJECTION BUT RAISED THE ISSUE ABOUT THE COMPETENCE OF THE NOTICE OF APPEAL AND THE SAID ISSUE WAS NOT DISTILLED FROM ANY OF THE GROUNDS OF APPEAL

… the first issue is a preliminary objection since it is an attack on the entire notice and grounds as being incompetent. No notice of preliminary objection was filed as required by Order 2 Rule 9 (1) of the Supreme Court Rules which provides that – “9(1) A respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time” Since the respondent failed to file the notice of preliminary objection but raised the issue about the competence of the Notice of Appeal and the said issue was not distilled from any of the grounds of appeal, this issue has no leg on which to stand. It is incompetent and it is accordingly struck out. See: Abba v. S.P.D.C.N. Ltd. 2013 11 NWLR (Pt. 1364) 86; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311. PER KUMAI BAYANG AKA’AHS, J.S.C.

WHETHER A PREVIOUS JUDGMENT OBTAINED BY FRAUD CAN BE SET ASIDE BY THE SAME COURT

…a previous judgment given by a court can be set aside by the same court in clear cases of lack of jurisdiction or fraud. In order that fraud may be a ground for vacating the judgment it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon but not one that has been or must have been deemed to have been dealt with by the Court. See Flower v. Lloyd (1879) 10 Ch. D. 327. PER KUMAI BAYANG AKA’AHS, J.S.C.

POSITION OF THE LAW WHERE THE STEPS TAKEN BY A COURT IN THE COURSE OF ITS PROCEEDING AMOUNT TO SERIOUS PROCEDURAL IRREGULARITY

Where the steps taken by a court in the course of its proceeding amount to serious procedural irregularity, the mistake or error will render the proceedings a nullity and accordingly its judgment in that respect will be of no legal effect and the inherent power of the court to set aside a judgment that is palpably a nullity could be invoked by a motion or an application by the party affected by the order. See: Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 315 at 339; Ezeokafor v. Ezeilo (1999) 9 (Pt. 619) 513 at 530. PER KUMAI BAYANG AKA’AHS, J.S.C.

DUTY OF THE COUNSEL TO ENSURE THAT THE RECORD OF APPEAL IS A COMPLETE RECORD

It is counsel’s duty to ensure that the record of appeal is a complete record. Thus where a document which was marked rejected for not having been certified, it was impossible for the appeal court to find out if the document was certified or not since it was not made part of the record and so could not make a finding on the issue. The Court stated that it is counsel’s duty to ensure that the record of appeal is a complete record and a party cannot complain if a ground of appeal is not considered since he had an opportunity during the settlement of record to have the document included in the record. See Omoni v. Tom (1991) 6 NWLR (Part 195) 93. In Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 this Court stressed that counsel ought to devote personal attention to what should be embodied in the record of the court, otherwise it may lead to putting incomplete record before the appellate court and consequently delay the hearing of the appeal. PER KUMAI BAYANG AKA’AHS, J.S.C.

JUSTICES

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

Between

PATRICK MICHAEL
2. LEONARD ONYEJI
3. JOSEPH ABOJIWE
4. SANI YAKUBU
5. ABUBAKAR M. ADAMU
6. ALHASSAN SALIHU
7. PETER IBRAHIM
8. MRS. MARY ASHILOLO
9. SHAMSUDDEN MOHAMMED
10. MIKE THOMAS
11. ABDUL IBRAHIM
12. ELKANAH SAMBO
13. ABDULKADIR BAMA
14. ABUBAKAR S. GARKO
15. ADO YAKUBU
16. CHIMAYI GALADIMA
17. ADAMU BUBA
18. SANI TAFIDA
19. ABDULLAHI G. SHEHU
20. OLANIPEKUM ABIODUN
21. MUSA SULE
22. JIBRIN ISIAKU
23. GARBA MOHAMMED
24. FOLORUNSHO LAWAL
25. AUDU ZARANDA
26. ADAMU KADAMARDA
27. ADAMU ABDUL
28. KAWU ALH. GANA
29. ABDULLHI WAZIRI
30. EMMANUEL JEDAMI
31. HABIBU ABDULLAHI
32. DAN UWANI AZARE
33. MOHAMMED BABA
34. MIKA AMBI
35. MOHAMMED ALI
36. DALHATU T/BAWALE
37. HAUWA D. ABUBAKAR
38. INUWA A. SAIDU
39. SUNDAY DZER
40. TYOSUE VITALS
41. ABUBAKAR IBRAHIM
42. SYLVESTER IMOH
43. USMAN SULE
44. ALHAJI A. ADAMU
45. PATRICK I. EDERIBHALO
46. BUKAR MAIDUBU BIU
47. BULUS P. GATIS
48. ADAMU N. ALI
49. ALIYU SHEHU
50. AMODU ADA
51. ABBAS IDRIS DOMA
52. YUSUF OGA
53. IBRAHIM KWAJAFFA
54. MOH’D BALARABE
55. IBRAHIM MUNIR
56. IBRAHIM MADO WUDIL
57. A. A. OJO
58. ZUBAIRU LAWAN
59. USMAN MUSA
60. ATTA ISAH
61. HABILA ARUNG
62. SULE HOTORO
63. MORGAN E. NWAKWERE
64. SAIDU USMAN
65. GARBA IBRAHIM
66. MOHAMMED ZUBAIRU
67. ABDULLAHI KASSIM
68. MOH’D ALI
69. MRS. CYNTHIA A. JOLAOSHO
70. NUNKUR UMAR LAMSING
71. HENRY A. AJARE
72. BAFFA MOHAMMED
73. MAI BUKAR GAZARI
74. ABDUL MUTALIB DAHIRU
75. HAMISU ABDU
76. SALISU GARBA
77. ABDULLAHI ALABI
78. AMUDA MAGAJI
79. HAJIYA FATIMA AYOKU
80. ISA AREMU
81. MRS. ABIGAIL ADEWUMI
82. MURITALA T. AJADI
83. KACHALLA GONI
84. EMMANUEL T. AKALBUGH
85. BALA CHANDIMA
86. MOHAMMED SALE
87. MUSA GAMBO
88. SAMUEL A. OLA
89. ABDU BDEJO BUDEL
90. ISHAKU HARUNA
91. UMARU USMAN
92. YAHAYA D. O. WAISU
93. GARBA WANZAMI
94. CHADO NDAKOTSU
95. PETER OWU
96. IBRAHIM HARUNA
97. HARUNA BIU
98. F. B. SALLAU
99. MOHAMMED HARUNA
100. MOHAMMED MAIGANA
101. ALIYU ISHAKU
102. GABRIEL O. BAIYE
103. BUBA A. AUDU
104. ADAMU MOH’D
105. GOJIM GOWON
106. BARNABAS DUDONG
107. YAHAYA MOHAMMED
108. GARBA WUSHISHI
109. HASSAN SALE
110. LAWAL T. WUSHISHI
111. ABDULLAHI MOHAMMED
112. JAMMA MADAKI
113. MURITALA ADEJUMO
114. MUHAMMED MUSA
115. HUSAINI MOHAMMED
116. AKOR INDYER
117. S. A. JIMOH
118. SALISU M. LAWAL
119. MUSA MOCH NTUWAN
120. SUNDAY EMBUGUSHI
121. MUSA IBRAHIM
122. IBRAHIM MURTALA
123. HASSANA V. DAN IKUNAIYE
124. SALIH LIMAN MKWA
125. SANI MUSA
126. IDI M. ZAMA
127. SULAIMAN A. BALOGUN
128. EJIGBOHA FRANCIS ABEL
129. TAUHEED A. BALOGUN
130. PAUL A. ALAWUMI
131. FEMI ONI
132. PATIENCE MODUPE OJO
133. MRS. FRANCIS A. OLALERU
134. JAMES OLUBADE
135. CECELIA O. SOSANYA
136. SAIDU O. OKWASHE
137. ALH. IDRIS BELLO
138. IBRAHIM KADARKO
139. ABDU ALI KIDA
140. ISA MOH’D GAMBO
141. MOHAMMED C. BUBA
142. HABILA BAWA
143. SHUAIBU ALIYU
144. BABAGANA SANNI
145. IBRAHIM AMINU W.
146. UMARU KINNAMI
147. MOHAMMED TABACCO
148. HAMIDU T. JULDE
149. LINUS B. MALADI
150. USMAN HASSAN TELA
151. ALIYU USMAN GWADABAWA
152. PENINNAH D. C.
153. HEMBA AKILE
154. ISHAQ BELLO
155. AYANKA ANDOOR
156. AMINU ISA GOBIRAWA
157. STEPHEN IGOH
158. SHEHU KADIRI YUSUF
159. YARO M/GIDA
160. OGUMGBEDE F. O.
161. MISS ZAINIAB USMAN
162. SAMAILA A. IBRAHIM
163. M. BULAMA GAJI
164. M. B. OROK
165. MUSA USMAN
166. EBEHWE F. IFEOMA
167. EKUWEME VICTOR
168. SULE ABUBAKAR
169. MUSA MOHAMMED
170. ADAMU SHUAIBU
171. GODWIN EYA
172. ALI BABA
173. ADAMU MUSA BIU
174. DAUDA I. Y. KARU
175. YAMAN A. MOH’D
176. LAWRENCE T. ABE
177. BELLO ALH. BOBOJI
178. BENSON SULE
179. RAJI YARO
180. PATRICK A. VDOR
181. FATAI A. AMAO
182. DANIS A. SHABU
183. SHEHU EICHA
184. GARBA ADAMU
185. BALA SAMBO
186. JOSHEPH ODAH
187. MOHAMMED ALI
188. ISMAILA Y. RANO
189. MAMAN JIKA
190. DANJUMA SHUAIBU
191. JIBRIN ABULEGI
192. MUNTARI SULE
193. MOSES KOLO
194. USMAN GATARI
195. YAYA U. UMAR
196. AUDU BAHAGO
197. IBRAHIM GARBA
198. GARBA IDRIS
199. MICHAEL B. ERENDU
200. MRS. UCHE IBIAM
201. MOHAMMED BAGUDU
202. MOHAMMED BIREI
203. BASHIRU ALIYU
204. ALHAJI YUSUF ADAMU
205. MRS. WURAOLA BAIYERI
206. SAMAILA B. BAUCHI
207. MOHAMMED GARBA
208. AUDU ALI
209. SAIHU ALIYU
210. AJI MAIBACO
211. SULE MATO
212. SARKI LAMINU
213. SANI MAMAN
214. CHARLES AIZEBOKHAI
215. MOHAMMED SANI
216. MUAZU WADA
217. MUSA IBRAHIM
218. SABO ABDU
219. SAIDU GARBA
220. BENJAMIN C. ANDOOR
221. JOHN FABUNMI
222. L. BALA
223. V. O. AKINBOLUSILE
224. ADAMU IDU
225. ABDULLAHI YAKUBU
226. ABDULLAHI ABUBAKAR
227. ABDU MUSA
228. YAU MUSA
229. MUSA MAMAN
230. MUSA MOH.D BAUCHI
231. SALE UMAR
232. STEPHEN UGBEMUNA
233. HALLIRU ALI
234. HALIRU HAMZA TOFA
235. GARBA M. AUDU
236. GARBA IBRAHIM
237. BUBA YERIMA
238. BUBA UMARU
239. BAKO IDA
240. ALI KALUA
241. ALI ARDO SHAFFA
242. ALI AHMADU
243. IDI ALI
244. JOHN ORINYA
245. KABIRU ABDU
246. MUHAAMMADU ABDU
247. UMARU N. NGURU
248. YINUSA BELLO
249. HUSAINI BELLO UNGOGO
250. MAJORITY BINAUTO
251. MUHAMMED AHMADU
252. UMARU M. FUNTONG
253. YAKUBU DANBATTA
254. ALI GARBA
255. GARBA YAKUBU
256. HAMIDU YAKUBU
257. HASSAN BALAMI
258. YAU MOHAMMED
259. YAU MOH’D ZAKIRAI
260. USMAN AUDU
261. IDRIS USMAN
262. MOH’D MUSA NAMADI
263. ALI DAUDA
264. ABDULLAHI ALIYU
265. MATHIAS OKO
266. ANTHONY H. DODO
267. HARUNA MALASHE MOH’D
268. MAL. YAKUBU JARI
269. ADBUL RASHEED TULA
270. MOHAMMED ALI
271. USMAN BELLO
272. STEPHEN GALLA
273. MAIWADA MAIJAKI
274. JIMOH DARAMOLA
275. MUSA USMAN
275. BONIFACE ODIBA
277. TANKO ZURU
278. USMAN MOHAMMED
279. JOHNNY J. YAKUBU
280. KALAYE IDI
281. BARMO CHISO
282. ABUBAKAR HABIB
283. ISMAILA IBRAHIM DANIYA
284. PATRICK I. ABAH
285. BUBAK UMAR
286. ALHAJI LIMAN
287. GAMBO HALILU
288. YAKUBU INUWA
289. BENSON B. ABU
290. ABU ADAMU
291. BUBA ADAMU
292. ELIZABETH ADEOLA
293. ABIMBOLA BAKARE
294. ADESINA OPEBIYI
295. ADETOYIN T. OSHINLOYE
296. TAWFIZ A. EMIOLA
297. MRS. NURA O. YUSUF
298. EMMANUEL OGUCHE
299. JOSEPH ISWAKPE
300. H. USMAN LARAI
301. BUNU KAR
302. KALE GANA MUSTAPHA
303. EMMANUEL OKWULU
304. HAFIZ MOH’D SANI
305. MAGAJI HARUNA
306. HASSAN MOH’D AYAGA
307. SALAHU SULE
308. MICHAEL E. ONOJA
309. R. A. KODE
310. RABIU MOHAMMED
311. WAKILI O. KASSIM
312. YAKUBU IDRIS
313. SAADU IRO
314. HARUNA MOHAMMED
315. ISA OGIRI
316. ALI ABUBAKAR SAWA
317. UMAR BUKAR
318. MURTALA OYEWALE
319. JACO Y. DINGSE
320. OCHELLA E. IGNATIUS
321. OJUOLAPE JOSHUA
322. ZUMAMI WARU
323. AHMED ADAMU B.
324. BUNU GOJE
325. SAMAILA USMAN
326. SHEHU ALFA MOH’D
327. THOMAS YAKUBU
328. YAHAYA ABBAS
329. YAKUBU GARKIDA
330. ADAMU DANJUMA
331. GARBA AUDU
332. GARBA MUHAMMED
333. GARBA TANKO
334. IBRAHIM MOH’D YAKASSAI
335. ISIYAKA USMAN
336. MIKO MOHAMMED
337. MUAZU ALI GAMA
338. MUSA AUDU
339. USMAN MOH’D ADAMS
340. YUSUFU SULE
341. ADEBAYO ALABI
342. MOH’D ABDU GUMEL
343. AKILU LAWAN
344. AUDU MAIDALA
345. DANLADI GUYOL
346. IBRAHIM ADAM SOJA
347. MAMAN BIU
348. MOH’D I. ZAWACHIKI
349. SHEHU IBRAHIM
350. YAKUBU AYUBA
351. BUKAR SULE
352. ALHASSAN D. TSANYAWA
353. MARTINS UKPE
354. SANUSI MAINASSARA
355. AHMED UMAR
356. IKPE I. EKWERE
357. BALARABE GANKO
358. PETER JEREMIAH
359. GODWIN STEVEN
360. HASSAN ABDULRAHMAN
361. ALHAJI B. A. THOMPSON
362. ABDU LAWAN
353. ISA BIU
364. ODUNIYA OMALE AKOR
365. AMINU BALA CHAFE
366. LADAN BODINGA
367. SALISU M. ABUBAKAR
368. ANTHONY OKWORI
369. KAKUDI JOHN
370. MAGAJI UMARU
371. ABAYOMI YUSUF
372. YOHANNAH DUNG
373. MUSTAPHA IDAH
374. MUSA ITODO
375. MOHAMMED D. MUSA
375. HARUNA ZAKARI
377. USMAN AHMADU
378. SIRAJO MOHAMMED
379. NANSAH C. KANNAYAL
380. MUSA KADO
381. ISHAKA ABUBAKAR
382. NADABO B. TAKTAK
383. MOHAMMED S. WAILO
384. MOHAMMED SULE
385. DAUDA ISIYAKU
386. LEONARO ZOMO
387. LAWAN USMAN
388. BAYO AKINWONJU
389. ADAMU ALI
393. MOHAMMED GWAGWARWA
391. ALI ADAMU
392. J. OGBE GBOR
393. MALIKI A. DAWODU
394. MRS. OLAYINKA N. OSHINLOYE
395. OGUNAIKE
396. MRS. AJOKE ABIOLA
397. CHRISTOPHER ABBA
398 MUSA A. ABDULLAHI
399. ALHAJI SAADU AREMU
400. AYINLA MAGAJI
401. BABA USMAN
402. BABATUNDE ZACHEAUS
403. BISI SHITTU
404. DAVID A. OGUNREMI
405. MRS. BABATOLU MORENIKE
406. MUSA ADISA
407. RAUFU ADEBARA
408. OBERT O. OKONKWA
409. UMAR AHMED
410. UMAR Y. MAMAN
411. SHUIABU IBRAHIM
412. MODU BARDE GOROMO
413. UMAR GARBA
414. AHMADU ALI
415. HARUNA BAWA
416. ISYAKA HARUNA
417. ALFRED B. EBENEZER
418. BALA MOHAMMED
419. BULUS DUNG PAM
420. IBRAHIM O. BELLO
421. DANLAMI BAKO
422. BUBA UMARU
423. MOHAMMED HARUNA
424. MICHAEL WADUKU
425. NGOZI IWUEKE
426. TAHIRU AHMED
427. IBRAHIM R. ISHAQ
428. IDI ADAMU WUSHISHI
429. ABUBAKAR N. KETSO
430. SOGIJI HUSAINI
431. ALHAJI SULE NDAKO
432. SALIMONU ISHOLA
433. MUSA MARKUS
434. MOHAMMED ENOKELA
435. KAYODE KAJOGBOLA
436. M. A. LAWAL
437. MICHAEL ENOKELA
438. MOHAMMED S. KOLO
439. OLAYIOLA OWOLABI
440. OMAGA AGBAMBO
441. JOHN M. SARKI
442. GRACE JODA
443. AMOS WANDARA
444. MRS. GRACE H. BADMUS
445. EMMANUEL FAMODIMO
446. TIMOTHY ADE AJANI
447. JAMES BOH
448. ABDULLAHI USMAN
449. BENJAMIN YAHAYA
450. DANIEL ODOZI
451. GANAMA BUKAR
452. MRS. FOLUKE OGUNDIMINI
453. MRS. GRANCE B. BENSON
454. MRS. TUNRAYO OLAWONYIN
455. MRS. V. S. ALABI
456, NURUDEEN OSHILAJA
457. ADAMU ZETU MOH’D
458. MUSTAPHA TANGA
459. KACHALLA BUKAR
46C. DAVID OKWU
461. ZAKARI SULAIMAN
462. USMAN IBRAHIM
463. YUSUF JAGABA
464. HYCENTH YOHANNA
465. EDWARD A. ADEYI
45b. AUDU CHORI
467. ODUNLAMI Y. M.
468. OKON AKPAN
469. JIBRIN MUKAILA
470. UMAR SANI MASHI
471. MOHAMMED LAWAL
472. ISA BABA WADA
473. HASSAN UMORU
474. GODFREY OYINU
475. EMMANUEL M. KURE
476. MOHAMMED MOHAMMED
477. SULE T. WADA
478. UMAR WAKILI
479. JOHN ANZARU
480. ALIYU MAIKUDI
481. AYUBA NUHU
482. GEORGE LIBERE
483. MOHAMMED UMARU
484, PAUL J. AMEH
485. SALISU MAGAJI
486. BALA MOHAMMED
487. BALA MOHAMMED JAKADA
488. ABUBAKAR ADAMU SALIMAN
489. ABUBAKAR SARKIN FADA
490. MAHMUD G. ADAMU
491. SULE HASSAN
492. SUFIYANU INUWA
493. YAKUBU AWARE
494. BULUS K. BENISHIEK
495. USMAN LAWAN
496. MOHAMMED A. ALFA
497. RAJI ADETONA
498. SHEHU ABUBAKAR
499. KOLO TSADO
500. EBENEZER A. MOROLARI
501. SIMON A. EKELE
502. SHEHU ABUBAKAR
503. SHESHI NDAKO
504. ABDULLAHISYIDI
505. F. O. B. LAWAL
506. MOHAMMED IBRAHIM
507. ADAMU ABDULLAHI
508. IDI ADAMU
509. MUSA ABDULLAHI
510, JEJIGO BABAN LARAI
511. AMOS ENIKANKISELU
512. GOFWEM GOTOM
513. HALILU RADDA
514. MOHAMMED GEZAWA
515. MUSTAPHA M. OGUCHE
516. ALH. ZAKI SHIBKAU
517. ABDULLAHI IBRAHIM AHMED
518. ALIYU UMARU TAMA
519. SANIK/MATA
520. ALH. R. O. ASHIRU
521. CORNELIUS O. ODEZE
522. PAUL I. OCHIBA
523. ALHASSAN ABDU YAKUBU
524. GARBA K. T/WADA
525 STEPHEN ONCHE
526. EBENEZER O. ADEJOBI
527. H. G. OMONIYI
528. EZEIKEL ABMDA
529. SAMUEL O. PALEMO
530. ABDU A. KAITA
531. ABUBAKAR UMAR
532. MANILA OYALMA
533. UMARU YUSUF
534. SATIVO PANKSHIN
535. PAM GAYANG
536. SUNDAY OLODUN
537. SAMAILA YUSUF
538. OMORELE MASEMBARE
539. LAWRENCE I. OWOLOYE
540. TANIMU R. MOHAMMED
541. JOHN ATUME
542. GARBA ADAMU
543. MANDE MOH’D DAURAN
544. YUSUF NDAMADU
545. FRANCIS IKPE
546. JEREMIAH EKUJE
547. MATHEW NYAMNUMBAR
548. AKWODO A. THOMAS
549. MUSA ABDULLAHI 404
550. TAJUDEEN A. OSEIFA
551. ABU MOHAMMED
552. ABUBAKAR MOHAMMED
553. AISHATU GARBA
554. ALI IBRAHIM
555. AUDU ISA
556. JOSEPH EREH
557. HAMIDU BAHAUSA
558. SAMUEL GEECHI
559. SILAS BULUS
560. IBRAHIM LAMBATU
561. SHETTIMA ASHIRA
562. SALISU ABDULLAHI NGURU
563. SAIDU YAKUBU
564. ALI MOHAMMED
565. ZAKARI ZUBAIRU
566. YAKUBU O. YAKUBU
567. ADUGBA ECHEIKPU
568. ABOKI DANLADI
569. VICTORIA CHARLES
570. ABUBAKAR N. KOTSO
571. UMAR MOHAMMED
572. ABDU AMADU BAKO
573, JOSHUA K. AWOLERE
574. SIMON H. JOCK
575. TANIMU MOH’D RABIU
576. UMARU YUNUSA
577. ADO NAKO
578. DANLADI TASHAR KURA
579. ISA IDRIS
580. ABUBAKAR U. BIU
581. SAMUEL D. JIVA
582. SUNDAY ISA
583. UMARU NAGWARI
584. USOKOTI VWAKARON
585. MOHAMMED O. MOHAMMED
586. SANI ABDALLAHI
587. MAIDAUMA ABDULLAHI
588. IDRIS ABUBAKAR GURIN
589. JOROM BALA
590. MAIWADA DANJIDA
591. UMARU SHUAIBU
592. A. MUSA IBRAHIM
593. MATHEW K. OMONIBI
594. JIMOH GOGBOARA
595. HABIBU DANKANO
596. UMAR MOHAMMED
597. ADAMU HUSAINI
598. AMINU AULE
599. DAUDA MOHAMMED
600. IDI ADAWA
601. KAMI MBAYA
602 JOSEPH O. NTAJI
603. HUSAINI MUSA
604. HARUNA HALADU
605. HARUNA D. OGBOLE
606. BUKAR FANAMI
607. ADO SHEHU AUJARA
608. AUDU IJAI
609. ADAMU M. MSHEILA
610. MOH’D WAKALA ISA
611. SHITTU ADO
612. SAMAILA DAUDA
613. DANIEL BALA
614. S. A. ADESINA
615. MOH’D BELLO ABUBAKAR
616. NATANKO IDI
617. TIMOTHY E. AYOKU
618. AUDU YAHAYA
619. FRIDAY J. ACHIMUGU
620. ISA B. DODO
621. ISA SHEKARAU
622. SULE MOHAMMED
623. UMARU GARBA
624. DANLAMI IBRAHIM FEGGE
625. ILIASU H. CHALANGA
626. MUSA ABUBAKAR
627. MUSTAPHA GAMBO
628. ABDU AMADU BAKO
629. MOHAMMED BULAMA
630. MODU MAISAJE
631. SHEHU ISA
632. SANISALISU BAMA
633. HALIDU GARBA
634. G. O. IKUTAH
635. SULE ISA
636. ADAMU GBAITA
637 JONATHAN AILEMEN
638. GARBA DOMA
639. MICHAEL WUNGAK
640. PATRICK SHAWULU
641. SAMUEL JOHN
642. OKATAHI M. BELLO
643. YAHAYA MUSA
644. ISAH AYINMODE
645. SAMSON OKPECHI
646. N. O. OJUNNEH
647. R. A. SHOYINKA
648. ALIYU SALAWU
649. BA’ANA WAKILI
650. BAMA MUHTARI
651. ADAMU TUDU
652. UMARU GILMAMMA
653. DAVID RAMANDA
654. ABDULLAHI DANTSOHUWA
655. SULEIMAN B. LOKOJA
655. MOHAMMED A. SOKOTO
657. YOHAANA BAKO
658. GLADYS O. ORJI
659. SAMUEL ALI GAYA
660. EDWIN A. OGLI
661. DANLADI D. DACHUM
662. ANTHONY O. OKELO
663. CHIRLAK NDOR KUMLOK
664. MUSA ABDULLAHI
665. MUSA SHUIBU
666. USMAN UMAR BIU
667. ABU SHUAIBU
668. GARBA DAN MOHAMMED
669. GARBA MOHAMMED
670. MRS. LAMI M. BABA
671. ADAMU ALI
672. KURAMA BUKAR
673. RIBIU S. SHITTU
674. MUSA BIU
675. ALI WAZIRI
676. THOMAS EKUNIYI
677. MUSA HARANG
678. MUSA DABO TULE
679. MUFTAU K. LAWAL
680. ADAMU YAKUBU
681. SUNDAY OCHAI
682. LOVE IGOMU
683. IGNATIUS OJOMA
684. CLETUS A. KPAR
685. FRANCIS ENUDE
686. YERIMA GARBA
687. MUHAMMADU GUSAU
688. MUHAMMADU LIMAN
689 AUDU JIMETA BIU
690. EMMANUEL TAYOK
691. GARBA HAMIDU
692. ISA HAMISU
693 MOHAMMED DANJUMA
694. SANI SHEHU YABO
695. JACOB T. ADESOYE
696. YAHAYA MOHAMMED
697. KADUNA YAHAYA
698. RAYMOND KWADO
690. SAIDU SUKOLE
700. ABARI AGBOSENI
701. STEPHEN B. ADUNU
702. MUSA BELLO NGULDE
703. AHMED IBRAHIM
704. ABDULLAHI MAIKANO
705. YUSUF IBRAHIM
706. DANIEL A. SULE
707. YAMUSA WAL
708. STEPHEN DAWA
709. MUSA ABDU
710. HABIBU AUDU
711. ABSOLLOM DILLI
712. BAKO BULUS
713. I. A. AMANA
714. SALIHU IBRAHIM GURIN
715: HAJIA RABI BELLO
716. OLUWAFEMI O. ENOCH
717. MRS. SESTY BASHILONY
718. JOSHUA YOHANNA AUDU
719. CALVIN DAVID
720. AUWALU IBRAHIM
721. USMAN MOHAMMED
722. MUSA WALAB
723. DANIEL SAMBO
724. DAVID AMATA HARRY
725. BALA IBRAHIM
726. ABDULKADIRI BABA
727. ABDU N. MAMUDA
728. DENDE POPOOLA
729. USMAN ALIYU
730. UMARU A. DAKACHE
731. JOSEPH T. ADEPE
732. JOHN N. NYAM
733. JOHN JENKELI ALO
734. ANTHONY ODEH
735. J. O. OJO
736. ESTHER S. IYOUGH
732. EMMANUEL OKOH
738. DANIEL AKPAN
739. BARAU R. BALI
740. FRIDAY GABRIEL OGOH
741. UMARU ABDU
742. ADAMU YUSUF
743. SALISU BIU
744. ADO TSAMIYA
745. INUSA HOTORU
746. AUDU IBRAHIM
747. JAMES LOCHE
748. LAWAL USMAN
749. JOSEPH A. IBIWOYE
750. ADAMU JIKA ADABO
751. GANA MUSA DIBAL
752. DANIEL BARAU
753. DANGULDE IBRAHIM
754. WAZIRI YUSUF
755. DAHIRU USMAN
756. HYCINTH A. ULOKO
757. MUSA A. GUSAU
758. MUSTAPHA MOHAMMED
759. ADAMU DANBILLA
760. ABDULLAHI YUSUF Appellant(s)

AND

BANK OF THE NORTH Respondent(s)

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): This is an appeal by the appellants against the Ruling of the Court of Appeal, Kaduna in CA/K/22M/2001 delivered on 16/4/2002 wherein the Court of Appeal refused to set aside its judgment delivered on 10/12/2001. The Notice of Appeal dated 20/6/2002 contained nine grounds of appeal from which the following four issues were distilled for determination:

1. Whether the learned justices of the Court of Appeal in the circumstances of this case could be said to have had the inherent jurisdiction and indeed the duty to grant the appellants’ application of 30/1/2002 and set aside their judgment of 10/2/2001 based on the defects in the filing, service and contents of the Notice of Appeal, as having been given without jurisdiction and therefore being a nullity, and/or as having been obtained by fraud (Grounds of Appeal Nos. 1, 3, 4, 5 and 8)

2. Whether, in view of the amendment of the processes and proceedings in the Lower Court including the addition of 759 names as respondents in the judgment of 10/12/2001 without hearing any of the parties or their counsel and other procedural irregularities, together with the summary dismissal of the appellants’ application of 30/1/2002 to set aside the judgment of 10/12/2001, the appellants can be said to have been denied a fair hearing (Grounds of Appeal Nos. 2, 5 and 9).

3. Whether sufficient materials were placed before the Lower Court in the appellants’ motion and affidavit of 30/1/2002 and the relevant documents and records they referred to, such as would have justified the Lower Court in invoking its inherent jurisdiction to set aside its own judgment of 10/12/2001 as having been obtained or tainted by fraud on the misrepresentation of the respondents (Grounds of Appeal Nos. 1, 7 and 8)

4. Whether the learned justices of the Court of Appeal were justified in refusing to set aside their judgment of 10/12/2001 as having been given without jurisdiction on the grounds that there cannot or need not be any appeal against a civil summons within time since same is not a decision or order pronounced upon by the trial court (Ground of Appeal No. 6)

On his part the respondent’s counsel submitted three issues for determination which are –

A. Whether the appellant’s appeal is competent considering the fact that no leave of the Lower Court nor that of the Supreme Court was obtained in respect of this appeal (Grounds 1 to 9 of the Notice and Grounds of appeal).

B. Whether the decision of the Lower Court refusing to set aside its judgment upon the allegations of lack of jurisdiction and fraud can be overturned by this Court as prayed by the appellants (Grounds 1, 2, 3, 4, 6, 7, 8 and 9 of the Notice and Grounds of Appeal).

C. Whether the Supreme Court can set aside the judgment of the Court of Appeal on the basis of the present appeal which is an appeal against the refusal of the Court of Appeal to set aside its own decision when no appeal exists against the substantive decision of the Court of Appeal (Grounds 5 and 9 of the Notice and Grounds of Appeal).

Among the issues submitted by the respondent’s counsel, the first issue is a preliminary objection since it is an attack on the entire notice and grounds as being incompetent. No notice of preliminary objection was filed as required by Order 2 Rule 9 (1) of the Supreme Court Rules which provides that –
“9(1) A respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time”
Since the respondent failed to file the notice of preliminary objection but raised the issue about the competence of the Notice of Appeal and the said issue was not distilled from any of the grounds of appeal, this issue has no leg on which to stand. It is incompetent and it is accordingly struck out. See: Abba v. S.P.D.C.N. Ltd. 2013 11 NWLR (Pt. 1364) 86; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311.

The remaining two issues are the same as issues 1, 3 and 4 in the appellants’ brief. I find that the respondent’s issues B and C are more succinct and clear and I prefer them to the appellants’ issues which are not so clear.

Learned counsel for the appellants stated the principle that a superior court has the inherent jurisdiction to set aside its own decision which is a nullity and given without jurisdiction, or one which is obtained by fraud and where this is the case a party can choose either to appeal against it or apply to set it aside. In this case, counsel chose the latter option. He pointed out that throughout the proceedings in the Lower Court, before and after the judgment was delivered on 10th December, 2001, counsel continued to apply for the striking out of the appeal on the grounds that the contents, filing and service of the Notice of Appeal were defective and thus affected the jurisdiction of the Lower Court to entertain the appeal but the allegations were glossed over, avoided and ignored by the Lower Court and the court proceeded with this attitude when it summarily dismissed the appellants’ application of 30th January, 2002 to set aside the judgment of 10th December, 2001 on 16th April, 2002.

Learned counsel contended that since the record was compiled by the respondent in the Court of Appeal against a final decision and the jurisdiction of the Court of Appeal is statutory, which cannot be conferred on the court by consent of the parties, the fundamental defects in the Notice of Appeal rendered it incompetent and thus ousted the jurisdiction of the Lower Court to entertain the proceedings or deliver judgment based on it since the notice of appeal is the foundation of the appeal. Learned counsel contended that the Notice of Appeal filed on 8th March, 2000 and which was endorsed with payment receipt No. B001382392 is tainted with fraud and since all the allegations of fact contained in the appellants’ affidavit of 30th January, 2002 in support of the motion to set aside the judgment of 10th December, 2001 in the Lower Court were uncontradicted by the respondent, they are deemed admitted as true. He submitted that although the appellants chose to file an application to set aside the judgment rather than appeal against it, sweeping away arguments which challenged the jurisdiction of the lower court to entertain the appeal did nothing to help the administration of justice that if an appeal had been filed on the issues, the Supreme Court might decide to send the issue back to the Lower Court for a proper resolution. Since the appellants have insisted that the court below must resolve the issue of fraud and jurisdiction, it is duty bound to resolve the issue. These arguments were repeated in the remaining issues of the appellants’ brief.

Learned counsel for the respondent submitted at first that the Court of Appeal has no inherent jurisdiction to set aside its own judgment. He later shifted his stand to state that in clear cases of lack of jurisdiction or fraud, the court can set aside its own judgment and in dealing with this appeal the question that arises is whether the judgment of the Lower Court was one that was obtained by fraud or with lack of jurisdiction as to clothe the Lower Court with inherent jurisdiction to set aside the said judgment. He referred to the application dated 30th January, 2002 wherein the appellants’ counsel prayed the Lower Court for an order setting aside the judgment delivered on 10th December, 2001 on allegations of fraud and lack of jurisdiction. He said that apart from the allegation in which specific mention was made about the payment receipt No. B001382392 for the Notice of Appeal filed on 8th March, 2000, there is no further evidence from any staff of the process Registry of the Court of Appeal in support of the allegation. He argued that if a receipt used in filing a process in the court is forged or “tainted with fraud” as alleged, the best evidence to prove it would be the evidence of the staff of the Court of Appeal who has custody of the Receipt Book of the court and a casual allegation by counsel and his employee without more, would not elevate the standard of proof elicited therein to proof beyond reasonable doubt whether the fraud alleged was made in civil proceedings or not. On the allegation of lack of jurisdiction as a ground for setting aside the judgment of the lower court learned counsel pointed out that the issues raised by the appellants herein in their motion to set aside its judgment were the same arguments which were advanced in the main appeal on which judgment was delivered on 10th December, 2001 and this was what led the Lower Court to refuse to accede to the request and thereafter dismissed the application as it was functus officio.

A scrutiny of the record does not contain the motion of 30/1/2002. However the proceedings of 16/4/2002 are in respect of the said motion which was given appeal No. CA/K/22/M/02. (See Vol. 2 pages 905-907 of the records). It was the last attempt which the appellants made to have the judgment delivered in CA/K/151/2000 on 10/12/2001 set aside for fraud and when the court below failed to grant the application, counsel decided to appeal to this Court. Long before the judgment sought to be set aside was delivered, learned counsel for the appellants/applicants sought to strike out the Notice of Appeal filed on 8/3/2000 as being defective and incompetent and improperly filed. (See supplementary record page 1).

On 26/9/2001, learned counsel filed Notice of Preliminary Objection to say that the Court (i.e. Court of Appeal) had no jurisdiction to and could not properly determine the appeal on the basis of the Notice of Appeal purportedly dated 8/3/2000 on the grounds that the Notice of Appeal so dated was incompetent and incurably bad in law and the Notice of Appeal did not comply with Section 25 of the Court of Appeal Act or the Court of Appeal Rules. (See page 419 Volume 1 of the records).

There is no doubt that a previous judgment given by a court can be set aside by the same court in clear cases of lack of jurisdiction or fraud. In order that fraud may be a ground for vacating the judgment it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon but not one that has been or must have been deemed to have been dealt with by the Court. See Flower v. Lloyd (1879) 10 Ch. D. 327. Where the steps taken by a court in the course of its proceeding amount to serious procedural irregularity, the mistake or error will render the proceedings a nullity and accordingly its judgment in that respect will be of no legal effect and the inherent power of the court to set aside a judgment that is palpably a nullity could be invoked by a motion or an application by the party affected by the order. See: Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 315 at 339; Ezeokafor v. Ezeilo (1999) 9 (Pt. 619) 513 at 530.

As stated earlier in this judgment, even before the Court of Appeal heard the appeal, learned counsel for the appellant herein had made spirited attempts to strike out the Notice of Appeal filed on 8/3/2000 but did not succeed in doing so. Particular reference is made to the Notice of Preliminary Objection which learned counsel representing the respondents (now appellants) filed on 25/9/2001. He stated that the respondents will rely on the following Preliminary Objection at the hearing of the appeal:

“This Honourable Court has no jurisdiction to and cannot properly determine this appeal as presently filed and on the basis of the Notice of Appeal purportedly dated 8/3/2000, the defective appellant’s brief dated 22/11/2000, and the defective appellant’s reply brief dated 12/9/01.

The grounds for the objection are as follows:-

1. The Notice of Appeal dated 8/3/2000 is incompetent and incurably bad in law.

2. The Notice of Appeal does not comply with Section 25 of the Court of Appeal Act or the Court of Appeal Rules.

3. The appellant’s brief and reply brief does not refer to the Notice of Appeal or the records before this Honourable Court.

4. The appellant’s brief and reply brief are deliberately misleading”

Salami, J.C.A. (as he then was) who wrote the leading judgment overruled the objection and struck it out because it did not comply with Order 3 Rule 15 Court of Appeal Rules. (See: page 448 of the records). Omage, J.C.A. in his concurring judgment held that there was no error or defect in the notice of appeal. (See page 466 of the records).

The issue about defect in the notice of appeal was settled to finality and if any party was dissatisfied, the only option left was to appeal against it but instead the appellants filed a post judgment application seeking to set aside the judgment of 10/12/2001.

The proceedings of 16th April, 2002 clearly brought out the fact that the material which counsel was relying on to say that the court had no jurisdiction to entertain appeal No. CA/K/151/2000 was not transmitted to the court. This is what transpired between learned counsel and the court:-

“Okike:- Moves motion for the Judgment of this Court to be set aside, its judgment delivered in CA/K/151/2000 on the 10th day of December, 2000 (sic) on the ground of fraud….. The record does not contain all the material that would be necessary to establish by the court that it has no jurisdiction because that appellant who compiled the record failed to include them.

Court:- Were you not granted option of filling (sic) further papers which you deem relevant to the hearing of the appear (sic) and was not included in bundle of papers filed by the appellant

Okike:- Yes I was granted the option but I failed to exercise it.”

The Court of Appeal Rules 1981 under which the judgment in CA/K/151/2000 was delivered and the one enacted in 2002 when the ruling, upon which the subject of this appeal is based was made provided in Order 3 Rules 9 (1) (c) (2) & (3) and Order 7 Rules 2 and 3 (2) as follows:-
“9 (1) The record of appeal shall contain the following documents in the order set out:-
(a) ……………………….
(b) ……………………….
(c) Copies of documents settled by the Registrar of the court below for inclusion in the record of appeal in accordance with Rule 8 of this Order;
(2) The Registrar of the court below as well as the parties, shall endeavour to exclude from the record all documents (particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplication of documents and unnecessary repetitions of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated where part or parts only of any lengthy document are directly relevant to the subject matter of the appeal, it shall be permissible to omit to copy such parts of the documents as are neither directly relevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.
(3) If the Registrar of the court below, or any party objects to the inclusion of a document on the ground that it is unnecessary or irrelevant and the other party nevertheless insists upon its being included, the document shall be included and the record shall, with a view to the subsequent adjustment of the costs of and incidental to the inclusion of such document, indicate in the index of papers or otherwise the fact that, and the party by whom, the inclusion of the document was objected to.
7-2 The Court may direct a departure from these Rules in any way when this is required in the interest of justice.
3(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties of these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the appellant or the respondent as the case may be to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.”
The 1981 and 2002 Rules do not specifically provide for the compilation of records by the appellant as is the case under the 2007 Rules. The function of compiling the records is the primary responsibility of the Registrar of the court below. Where the Registrar fails to compile the records within sixty days after the filing of the notice of appeal, it becomes mandatory on the part of the appellant to compile and transmit the records. In a situation where the record of appeal is compiled by the appellant, the respondent is at liberty to compile additional records. This is contained in Order 8 Rules 4, 5 and 6 which state –
“4. Where at the expiration of sixty days after the filing of the notice of appeal the registrar has failed and or neglected to compile and transmit the records of appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile the records of all documents and exhibits necessary for his appeal and transmit to the court within 30 days after the registrar’s failure or neglect.
5. Such records compiled by the appellant, shall be served on the respondent or respondents within the time stipulated for transmitting such records to the Court, which is 30 days.
6. Where the respondent considers that there are additional records which may be necessary in disposing the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records of appeal.”
From the statement which learned counsel made that it was the appellant who compiled the record of appeal upon which the court below decided appeal No. CA/K/151/2000, it is obvious that a departure from the rules was granted to the appellant to compile the records. The appellant therefore included only those documents and exhibits it needed for its appeal. It was therefore incumbent on the present appellant (who was respondent in appeal No. CA/K/151/2000) to compile additional record for the appeal which would strengthen the argument that appeal No. CA/K/151/2000 was incompetent. Since the appellant knowingly chose not to compile the supplementary record which it was given the opportunity to compile, it cannot be heard to argue that there was fraud or misrepresentation in the record compiled which robbed the court below of jurisdiction to hear and determine appeal No. CA/K/151/2000. The evidence needed to sustain the argument could not be found in the record. Learned counsel for the appellants was labouring under a misconception that it is solely the responsibility of the person appealing to compile all the records for an appeal whether the record will be of any use to his appeal or not. But this is not what the rules provide.
It is counsel’s duty to ensure that the record of appeal is a complete record. Thus where a document which was marked rejected for not having been certified, it was impossible for the appeal court to find out if the document was certified or not since it was not made part of the record and so could not make a finding on the issue. The Court stated that it is counsel’s duty to ensure that the record of appeal is a complete record and a party cannot complain if a ground of appeal is not considered since he had an opportunity during the settlement of record to have the document included in the record. See Omoni v. Tom (1991) 6 NWLR (Part 195) 93.
In Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 this Court stressed that counsel ought to devote personal attention to what should be embodied in the record of the court, otherwise it may lead to putting incomplete record before the appellate court and consequently delay the hearing of the appeal. The jurisdiction of the court below was not impaired nor was the judgment in appeal No. CA/K/151/2000 obtained by fraud. Since there is nothing to show that the judgment was given without jurisdiction or obtained by fraud, the Lower Court could not exercise any inherent jurisdiction to set it aside on the application of the appellants. The remedy of the appellants lay in appealing against the judgment. See: Section 233(2) of 1999 Constitution; Bakare v. Apena (1986) 4 NWLR (Pt. 33) 1, Adigun v. Attorney-General of Oyo State (1987) 2 NWLR (Pt. 56) 197.
The same consideration goes for the remaining issues. The concession made by learned counsel for the appellants that the record does not contain all the material that would be necessary to establish by the court that it lacks jurisdiction and the fact that the court granted him the option to file further papers but he failed to utilize the option has absolved the Lower Court of blame when counsel accused the court of going ahead to dismiss his application without a hearing. A court is not obliged to grant a hearing to a party where the record is incomplete and the party’s attention is drawn to it and in spite of this, the party insists on proceeding with his case without remedying the situation. It becomes necessary for the appellants to compile the documents which were allegedly fraudulently excluded from the compiled record namely:-
(a) The Civil Summons of the 767 writs.
(b) The judgments and rulings in respect of the 759 cases dated 3/6/99 and 26/6/2000 and the leave granted by the Lower Court on 20/3/2000 to argue additional grounds of appeal.

I am in full agreement with the submission made by learned counsel for the respondent that all the grounds and facts upon which the allegations of fraud and lack of jurisdiction on which the motion to set aside the judgment of the Lower Court was predicated or erected on quick sand and was bound to collapse like a pack of cards.

I find that the appeal lacks merit and it is accordingly dismissed. I make no order on costs.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I read before now the judgment just delivered by my learned brother, Aka’ahs, JSC. I agree with his reasoning and conclusion which I adopt as mine.

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.: The Court of Appeal now Court below, delivered a judgment on 10/12/2001 against the 760 named appellants. The Appellants were aggrieved and filed a motion to set aside the Court below decision. That Court turned down the application on the grounds of want of jurisdictions and fraud.

The Court below then dismissed the motion filed by the Appellants on 30/1/2002. Clearly the ruling favoured the Bank of the North Limited. The Appellants then appealed separately against the ruling of the Court below refusing to set aside its own decision. The appeals were neatly consolidated for hearing with one single suit No. K/919/97 Patrick Michael v. Bank of the North Limited.

Confidently, Justice Wada Umar Abubakar delivered separate Judgment in favour of 760 vis-Ã -vis 76 plaintiffs who filed separate suits against the respondent that was on 24/2/2000.

The Respondents Bank filed a Notice of Appeal which named only one of the Appellants as respondent and the appeal was heard by the Court below Kaduna.

The preliminary objection which raised as a matter of jurisdiction the failure to name the respondents, now Appellants in this Court, in the Notice of Appeal failure to serve the Notice of Appeal and other issues was struck out on technical grounds and the respondent breach’s appeal allowed in a judgment which now named the 760 appellants.

The 760 named appellants then filed a motion to set aside the judgment of 10/12/2001 raising the same issues of lack of jurisdiction and fraud. However this application of 30/1/2002 was and was summarily dismissed on the same day.

The 760 named appellants being aggrieved now appealed to the Supreme Court and filed a Notice of appeal containing 9 grounds of Appeal.

The trial Court delivered separate judgments in suit No.K/919/97 in favour of the plaintiff, the respondent’s former employees. These judgments had been written and decide to have been delivered in the 759 separate suits filed and heard together.

The Respondent bank initially filed a Notice of Appeal dated 3/3/2000 against the said judgment and subsequently relied on a Notice of Appeal dated 7/3/2000 but purportedly filed on 8/3/2000. So many other documents were filed and discussed. The appeal was heard on the bundle of documents filed by the respondent which did not include the writ of summons in Suit No. K/919/97 filed by Patrick Michael, the only named respondent to the appeal.

Even-though I gathered that the notice of appeal was never amended at any time by order of the court below to include names of 759 others in the notice of appeal. Surprisingly the judgment of the court below dated 10/12/2001 suddenly and inexplicably named 760 persons as respondents to the appeal and as against whom the judgment was delivered.

Motion by the appellants to set aside the court below judgment of 10/12/01 was refused and struck out on the same day it was heard.

The 760 named appellants have now appealed to this court against the decision of the court below dated 16/4/2002 and filed, as I stated earlier, nine (9), grounds of appeal.

The appellants also distilled four (4) issues for consideration of the appeal.

Respondents counsel S. E. Elema filed respondents brief on 11/9/2014 and adopted same. He argued briefly that the Lower Court, (Court of Appeal Kaduna) delivered judgment on 10/12/01 rather than appeal against the said judgment the appellants, herein, brought a motion dated 30/1/2002 praying the court of Appeal Kaduna to set aside its judgment on grounds of lack of jurisdiction and fraud. The said motion was heard on 16/4/2002 and rightly dismissed on the same day. The appellants, according to him, did not file any notice of appeal against the substantive judgment of the court below, but have wish to the said judgment set aside by the Supreme Court on the basis of this appeal.

My learned brother Hon. Justice K. B. Aka’ahs, JSC, allowed me to have a preview over his lead judgment just delivered. I closely read and analyzed the reasons and conclusion relied upon by him to hold that the appeal lacks merit. I found myself in total agreement with his lordship. The appeal therefore in my view is devoid of substance and I also dismiss this appeal. No order as to costs.

OLABODE RHODES-VIVOUR, J.S.C.: My lords, I have had the advantage of reading in draft the leading judgment prepared by my learned brother, Aka’ahs JSC. For the reasons he gives I too would dismiss the appeal with no order on costs.

NWALI SYLVESTER NGWUTA, J.S.C.: I read before now the lead judgment just delivered by my learned brother, Aka’ahs, JSC and for the reasons therein stated I agree that the appeal is devoid of merit.

The principle which governs the formulation of issues for determination in an appeal has been repeatedly stated by the court. The grounds of appeal should in no circumstance be less than the issues for determination. Though the court may tolerate equal number of grounds and issues formulated therefrom a situation where there are less grounds of appeal than issues for determination cannot be tolerated. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385, A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 649, Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt. 99) 566.

Learned Counsel for the appellant exhibited Perry Mason Shenanigans before the Court below to the detriment of his client’s case. In urging the Court to vacate its judgment in CA/IC/151/2000 delivered on 10th December, 2000 on grounds of fraud, he relied on the fact that:

“The record does not contain all the material that would be necessary to establish by the court that it has no jurisdiction because that the appellant who compiled the record failed to include them.”

When reminded by the Court that he was granted option of filing further papers which he deems relevant to the order he sought but omitted by the appellant he answered: “Yes, I was granted option but I failed to exercise it.” From his own ipse dixit the processes that formed the basis of his allegation of fraud were not before the court. He had an opportunity to file the process as additional record to support his application but he failed to do so.

It was not the duty of the court or even counsel on the other side to provide proof that the judgment of the court was obtained by fraud. The duty is that of the appellant who alleges fraud.

For the above and the fuller reasons in the lead judgment I also dismiss the appeal for lack of merit. Parties shall bear their respective costs.

Appearances