MODULAR LTD v. AROJO (2020)

MODULAR LTD v. AROJO

(2020)LCN/14714(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 06, 2020

CA/A/179/2014

RATIO

APPEAL: IMPORTANCE OF NOTICE OF APPEAL

One of the requirements of a valid Notice of Appeal by Order 7 Rule 2(2) of the Court of Appeal Rules 2016 is that it must state the names and addresses of all parties directly affected by the appeal. The parties directly affected by the appeal are in my view the parties to the proceedings at the lower Court. A party directly affected by the appeal is a party to the action at the trial Court. See PEPPLE VS. PRINCEWILL (2011) LPELR – 4487; NESTOIL & ANOR VS. ONUOHA (2011) LPELR – 4590; STIRLING CIVIL ENGINEERING NIG. LTD VS. FIDELITY BANK (2013) LPELR – 22634. PER IDRIS, J.C.A.
APPEAL: NATURE OF AN APPEAL

It is settled law that an appeal is a rehearing, therefore, without a proper order of Court substituting a party, all the parties at the trial Court must be the same on appeal. See Order 7 Rule 2 of the Court of Appeal Rules. Where a party is displaced, as in the present appeal, then the appeal will be incompetent and the appellate Court will lack jurisdiction to hear and determine it. See ADENIRAN VS. OLUSOKAN (2019) 8 NWLR (PT. 1673) 98; ADEGOKE MOTORS LTD VS. ADESANYA (1989) 3 NWLR (PT. 109) 250; NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1; VERALAM HOLDINGS LTD VS. GARBA LTD (2014) LPELR – 22671. PER IDRIS, J.C.A.
SERVICE OF PROCESS: EFFECT OF FAILURE OF SERVICE OF PROCESS WHERE IT IS REQUIRED

The record of appeal is the bible of a case before the appellate Court. See FORTUNE INT’L BANK PLC VS. CITY EXPRESS BANK LTD (2012) 14 NWLR (PT. 1319) 86.
By virtue of Order 8 Rule 1 of the Court of Appeal Rules, the registrar of the Court below shall within 60 days after the filing of the Notice of Appeal, compile and transmit the record of appeal to the Court of Appeal. As soon as an Appellant has filed his notice of appeal in the Court below, the registrar of that Court with all due expedition start to prepare the record. See KAREEM VS. LPDC (2019) 15 NWLR (PT. 1096) 481; N.I.W.A. VS. SPDC NIG. LTD (2011) 6 NWLR (PT. 1244) 618. By the provision of Order 8 Rule 4, where at the expiration of 60 days after filing of the Notice of Appeal, the registrar has failed and or neglected to compile and transmit the record of appeal, it shall then become mandatory for the Appellant to compile the records of all documents and exhibits necessary for the appeal and transmit it to the Court within 30 days after the registrar’s failure or neglect. See NWORA VS. NWABUEZE (2019) 7 NWLR (PT. 1670) 1. PER IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MODULAR LIMITED (NOW CITYVIEW ESTATE LIMITED) APPELANT(S)

And

MRS. OMOBOLANLE AROJO RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja delivered by the Honourable Justice A. A. I. Banjoko delivered on the 8th day of November, 2013. The judgment is contained in pages 392 – 436 of the Record.

By the Amended Writ of Summons and the Statement of Claim dated 4th February, 2010 but filed on 9th March, 2010, (pages 185 — 192 of the Record), the Respondent herein, as the Plaintiff at the High Court of the Federal Capital Territory, Abuja, claimed against the Appellant herein, as the 1st Defendant and one, MRS OGEDEGBE GRACE ADEMAKHE, as the 2nd Defendant. The latter is not a party in this appeal.

The Respondent sought the reliefs per the Amended Statement of Claim, jointly and severally, against the defendants therein as follows:
(i) A declaration that the Plaintiff is entitled to an immediate possession of the property known as Plot D34 FUNSA Housing Estate Dakwo District, Abuja having duly and fully paid the agreed purchase price.
(ii) A declaration that the Plaintiff is entitled to a certificate of occupancy in

respect of the said Plot D34 FUNSA Housing Estate Dakwo District/ Abuja.
(iii) A declaration that the purported sale of the property to the 2nd Defendant by the 1st Defendant is null and void.
(iv) An order setting aside the purported sale of the said property to the 2nd Defendant.
(v) An Order of injunction restraining the 1st Defendant by itself, its agents, privies or assigns from selling or transferring the said property at Plot D34, FUNSAN Housing Estate, Dakwo District Abuja to any persons other than the Plaintiff.
(vi) An Order mandating the Defendants to yield and give up immediately, the possession of the said property at Plot D34 FUNSAN Housing Estate Dakwo District Abuja, to the Plaintiff.
(vii) An Order mandating the 1st Defendant to process and hand over the relevant title documents in respect of the said property in the name of the Plaintiff, the Plaintiff having duly paid the necessary processing fees as agreed to the 1st Defendant.
(viii) AND, ALTERNATIVELY, the sum of N20 million as damages against the 1st Defendant for breach of contract.

The learned trial Court after an evaluation of the evidence and

consideration of the submissions of counsel found inter alia as follows:
“The totality of the evidence adduced shows that the Plaintiff had fulfilled all the conditions that where required of her and the defendants were obliged to put her into possession of the semi-finished property she negotiated for since 2004 and paid for before the deadline. The 1st defendant was in breach of its obligation to fulfill its (sic) own side of the bargain. A breach therefore has been established as committed by the ft defendant for which they are liable.” (Page 429 of the Record)
The trial Court at page 433 of the Record, also found thus:
“It is in evidence that the 2nd defendant purchased the property after noting an advertisement and applied through the 1st defendant’s Managing Director and tendered the application fee receipt admitted as Exhibit Q and testified further that she had paid up the purchase price, taking possession in January 2009. In evidence as Exhibits R, and S the receipt of payments and Exhibit T, the site plan of Plot D34 She had also made all necessary searches and enquires concerning the property and had been satisfied that the properly

was free from every encumbrance. As at the time of her testimony, she had been three years in occupation of the property, and had improved the house since its purchase at carcass level.
The issue now is who is entitled to the property subject matter of this action. The Plaintiff has not been given any title deeds as a result of the breach committed by the 1st defendant and so has only equitable right and interest in the property. She was first in time in equity but because the 2nd defendant gave unchallenged evidence that she has done all that was required of her to ascertain the title and any encumbrance that may have existed on the land, she can be properly classified as a bona fide purchaser of legal estate for value without notice. Her equitable rights is said to have been converted into a legal right and therefore, in the interest of justice, this Court will permit the 2nd defendant to restrain control and ownership of the property in question.
However, the plaintiff is not left without any remedy in law (…Page 434)
“The plaintiff had in Amended Statement of Claim sought in the alternative for the sum of twenty million Naira as damages

for breach of contract against the 1st defendant and in consideration of this claim, the Court will consider the principles of law in this area…”

The learned trial Court in conclusion dismissed the substantive reliefs claimed by the Respondent and granted the alternative reliefs in damages in the following terms:
“viii. The alternate claim to damages in the sum of N15 Million against the 1st defendant for breach of contract is found meritorious and granted accordingly. The 1st defendant is hereby ordered to pay up to the plaintiff, the sum of N15 Million Naira as damages for breach of contract.
ix. The 1st defendant is ordered to refund the amount paid by the plaintiff for the purchase of the property, which transaction failed and this refund payment is to be made forthwith.”

The Appellant herein, being dissatisfied with the judgment of the trial Court, particularly, “Holden viii and ix”, filed and served on the Respondent herein, a Notice of Appeal dated the 22nd day of November, 2013 but filed on 4th December, 2013 and subsequently filed another Notice of Appeal dated 20th January, 2014 on 23rd January, 2014. The Respondent contends that

the latter Notice of Appeal contained in pages 437 – 441 of the record was never served on her. Either deliberately, or inadvertently, the original Notice of Appeal served on the Respondent by the Appellant is omitted on the record of appeal transmitted by the Appellant.

The Appellant and the Respondent both filed briefs. The Respondent filed a Notice of Objection to the hearing of the appeal, wherein he challenged the competence of the appeal and urged the Court to dismiss the appeal in limine for lack of jurisdiction.

I shall first deal with the Preliminary Objection raised by the Respondent to the hearing of this appeal.

PRELIMINARY OBJECTION
The Respondent filed a Notice of Preliminary Objection dated 24th April, 2017 on 25th April, 2017 challenging the competence of this appeal.

The Notice of Preliminary Objection is urging this Court to dismiss the appeal in limine, for lack of jurisdiction. The Respondent is relying upon 2 (two) grounds, to wit:
1. That the Court of Appeal lacks the competence to entertain the appeal, as there is no proper Notice of Appeal before the Honourable Court.
2. That there is no proper

Record of Appeal before the Honourable Court upon which the Appeal could be heard.

The Notice of Preliminary Objection is supported by a 4 – paragraph affidavit deposed to by a Godfrey Omoha, a litigation officer in the Chambers of the Counsel to the Respondent. Also attached to the affidavit are the exhibits marked as Exhibits A1, A2 and A3, respectively.

The Respondent laid out the issues for determination arising from the afore stated grounds of objection as follows:
1. Whether the has a competent Notice of Appeal before this Honourable Court; and
2. Whether there is a proper record of appeal before this Honourable Court upon which this Appeal could be heard.

RESPONDENT’S ARGUMENT ON ISSUE 1
The Respondent in arguing this issue relied on the depositions contained in the affidavit in support of the Notice of Preliminary Objection and particularly, paragraphs 3(b), (c), (d), (e) and (f) respectively, wherein the Respondent deposed to the fact that there were 3 (three) parties to the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/748/09 upon which this appeal was founded.

That the Respondent herein was the Plaintiff at the trial Court while the Appellant was the 1st defendant with one MRS. OGEDEGBE GRACE ADEMAKHE, as the 2nd defendant. The Respondent relied on the copy of the judgment attached as “Exhibit A1”.

However, it was contended that the notices of appeal (Exhibits A2 and A3 of the affidavit in support of the Preliminary Objection) filed by the Appellant reflect only 2 (two) parties, namely, the Appellant and the Respondent herein. The third party in the suit was inexplicably omitted.

It is the Respondent’s submission that the absence of all the necessary parties to the Appeal renders the notice of appeal incompetent and therefore robs the Court of its competence to adjudicate over the appeal. Reliance was placed on the case of NYESOM VS. PETERSIDE (2016) 33 WRN 1 AT 90- 91 LINES 50 – 25, where the Supreme Court restated the principle in the Nigerian locus Classicus case of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341 on the jurisdiction and competence of the Court.

It was submitted that on the face of the notice of appeal of the Appellant, proper parties are not before this Court. Therefore the Court lacks

the competence to hear the appeal as constituted, as a condition precedent to the exercise of the jurisdiction has not been fulfilled. Reference was made to the cases of STIRLING CIVIL ENGINEERING NIGERIA LTD VS. FIDELITY BANK (2013) LPELR – 22634 (CA) AT PAGE 19 PARAS E – G; NESTOIL & ANOR VS. ONUOHA (2011) LPELR – 4590 (CA) AT PAGE 10 PARAS C – G; PEPPLE VS. PRINCEWILL (2011) LPELR – 4487 (CA).

The Court was urged to dismiss this appeal on that reasoning as there is no competent notice of appeal before the Court in the circumstances.

Furthermore, the Respondent also contended that the purported Notice of Appeal dated 20th January, 2014 but filed on 23rd January, 2014 (Exhibit A3) contained on pages 437 – 442 of the bundle of documents which the Appellant tends to rely upon to argue the appeal was never served on the Respondent. That what the Appellant served on the Respondent was a different Notice of Appeal dated 23rd November, 2013 but filed on 3rd December, 2013. That the said Notice of Appeal attached as Exhibit A2 of the affidavit in support of the Notice of Objection was not included in the Appellant’s bundle of documents. Reliance

was placed on the facts deposed to at paragraph 3(d) and (e) of the affidavit in support of the Notice of Preliminary Objection.

It was the Respondent’s submission that non-service of the Notice of Appeal dated 20th January, 2014 but filed on 23rd January, 2014, on the Respondent, same being the originating appeal process sought to be relied upon by the Appellant at the hearing of this Appeal, is fatal to the hearing of the Appeal. Reference was made to the following cases: AGU VS. CBN (2016) LPELR – 4109 (CA); IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (PT. 1492) 147 AT 179 PARAS D – F; AMOS MOTORS NIGERIA LIMITED & ANOR VS. AGBOOLA (2012) LPELR – 8011 (CA); OJO VS. INEC & ANOR (2008) LPELR – 4705 (CA).

Lastly on this issue, it was submitted that the Appellant’s purported notices of appeal (Exhibits A2 and A3) are against a purported judgment of the High Court of the Federal Capital Territory, Abuja delivered on 1st November, 2013. That the only judgment of the trial Court which the Respondent was a party to was the “Exhibit A1” (attached to the affidavit in support of the Notice of Preliminary Objection) and it was delivered on 8th November, 2013.

The Respondent submitted on the points argued above, that the Appellant has no competent Notice of Appeal before this Court. Consequently, counsel urged the Court to hold so and to dismiss this appeal in limine, upon that ground.

RESPONDENT’S ARGUMENT ON ISSUE 2
It was submitted that the Appellant filed 2 (two) notices of appeal on 4th December, 2013 and 23rd January, 2014. The said notices of appeal are attached as Exhibits A2 and A3 respectively to the affidavit in support of the Notice of Preliminary Objection.

It was submitted that while the law is settled that an Appellant may file as many notices of appeal as he may desire, the relevant date in calculating the length of time is the date on the first notice. The case of BOLAJI VS. TEJUOSHO (2016) 14 WRN 90 AT 111 LINES 15 – 25 was relied on.

It was argued that by virtue of Order 8 Rules 1 and 4 of the Court of Appeal Rules, 2011 (now 2016), the Appellant has a total of 90 days after filing of the notice of appeal within which to compile and transmit the Record of Appeal from the Court below to the Court of Appeal.

It was submitted that the Appellant’s time to compile

and transmit the Record of Appeal began to run from 4th December, 2013 when the first Notice of Appeal (Exhibit A2) was filed. That the Appellant’s 90 days thus expired on 3rd March, 2014. That the purported record of appeal was transmitted to this Court on 17th March, 2014 outside the 90 days permitted by the Rules of this Court and without the leave of Court. Reference was made to the cases of USUAH VS. G. O. C. NIGERIA LTD (2012) LPELR 7913 (CA); DIMEGWU VS. OGUNEWE (2010) LPELR 5031 (CA) AT PAGE 15 – 16 PARAS C – A.

It was submitted therefore that the record of proceedings compiled by the Appellant and served on the Respondent on 17th March, 2014 was not properly compiled in accordance with Order 8 Rules 1 and 4 of the Court of Appeal Rules 2011 which was in operation at the time the record was purportedly transmitted and same provision under the extant Court of Appeal Rules 2016. The Court was urged to hold so and to dismiss the appeal on this ground as there is no competent record of appeal upon which the appeal could be heard in the circumstances.

The Court was urged to uphold the Respondent’s Preliminary Objection on all the above argued

grounds, and to dismiss the appeal in limine for lack of competence.

APPELLANT’S ARGUMENT ON ISSUE 1
It was submitted that the contention that the Appellant in the instant case filed 2 (two) notices of appeal dated 22nd November, 2013 and filed on 23rd January, 2014 and a second Notice of Appeal dated 20th day of January, 2014 and filed on 23rd January, 2014 at the FCT High Court Registry are in compliance with the Rules of the Court, and that the filing of 2 separate Notices of Appeal within time does not make the appeal incompetent. The case of YAKI VS. BAGUDU (2015) ALL FWLR (PT. 810) 1026 AT P. 1075, PARAS E – B was relied on.

That there is no confusion as to the Notice of Appeal upon which this appeal is predicated, and that this is more so when there is only one Notice as contained in pages 437 – 442 of the records upon which both the Appellant and Respondent anchored their briefs of argument.

It was submitted that an Appellant is permitted to select and rely on one Notice of Appeal where he filed several Notices of Appeal. The Supreme Court cases of SPDC VS. AGBARA (2016) ALL FWLR (PT. 825) P 290 RATIO 3 and ADONIKE VS. STATE

(2015) ALL FWLR (PT. 722) P. 1663 PARAS E F were relied on.

It was argued that contrary to the position of the Respondent, they were duly served with the extant Notice of Appeal. Furthermore that they were also duly served the record of appeal which was admitted and contained in pages 437 – 442 of the record.

The Appellant submitted that this satisfied Order 2 Rule 1(a) of the Court of Appeal Rules 2016. Learned counsel argued that the Notice of Appeal contains the names and addresses of all parties directly affected by the appeal, and this includes the Appellant and Respondent. The case of STIRLING CIVIL ENGINEERING NIG. LTD VS. FIDELITY BANK (2013) LPELR – 22634 (CA) AT PAGE 19 PARAS E – G was relied on.

It was submitted that the presence and interest of the 2nd Defendant MRS. GRACE ADEMAKHE having been dispensed with at the trial Court and there is no claim whatever against her at the Appellate Court by both the Appellant and Respondent, she is not a necessary party to this appeal. That the Appellant can choose who to proceed with at the appeal in so far as the issues before the Court can be properly and fully determined without the presence of that party.

It was further argued that contrary to the argument of the Respondent, the Notice of Appeal is against the judgment delivered by the FCT High Court on the 1st day of November, 2013 as against 8th day of November, 2013. That the appeal is predicated on the date of delivery in open Court and nothing more irrespective of any mistake or inadvertence. The Court was urged to look at page 391 of the Record of Appeal.

It was submitted that this action in its entirety is competent before this Court and the Court was urged to so hold and discountenance the argument of the Respondent and proceed to hear and allow this appeal.

APPELLANT’S ARGUMENT ON ISSUE 2
It was argued that the Respondent’s objection is misconceived. That Order 8 Rules 1 and 4 of the Rules of this Court 2016 grants the Registrar of the Court below 60 days after the filing of Notice of Appeal within which to compile and transmit the Record of Appeal to the Court of Appeal and another 30 days for the Appellant making it 90 days in all.

It was further argued that the extant Notice of Appeal was filed on 23rd January, 2014 and the Record of Appeal was

transmitted on 21st March, 2014 just 53 days after the extant Notice of Appeal was filed. Counsel submitted that the time begins to run from the date of the filing of the extant Notice of Appeal being 23rd January, 2014 to the date of the record transmission being 17th March, 2014 which is 53 days out of the 90 days. Counsel further submitted that this was within the time stipulated by the Rules of this Court.

It was argued that the Respondent did not challenge the record as transmitted nor transmit any additional record as provided by Order 8 Rule 6 of the Rules of this Court and therefore cannot import into the records what is not contained therein. That parties are bound by the records. The case of L.S.E.W.C. VS. SAKAMORI CONSTRUCTION (NIG.) LTD (2012) ALL FWLR (PT. 636) PP. 1768 – 1769, PARAS H – A was relied on.

Counsel submitted that based on the above authorities, this Court is bound by the content of the record before it.

Counsel finally submitted that the Notice of Appeal before this Court dated 20th January, 2014 and filed 23rd January, 2014 and contained at pages 437 – 442 of the record of appeal was duly served and/or

communicated to the Respondent and that it is valid and competent both in content and form.
The Court was urged to dismiss the Preliminary Objection.

RESOLUTION OF THE PRELIMINARY OBJECTION
For the purpose of resolving this objection, I shall adopt the issues formulated by the Respondent in her brief as the issues for determination arising from the grounds of objection filed. These issues again are:
1. Whether the Appellant has a competent Notice of Appeal before this Court,
2. Whether there is a proper record of appeal before this Court upon which this appeal can be heard.

RESOLUTION OF ISSUE ONE
I have perused the affidavits filed by the Respondent in support of this preliminary objection, the counter affidavit filed by the Appellant and the record of proceedings. The following facts are clear and incontestable:
a) The Respondent herein was the plaintiff at the trial of the suit No. FCT/HC/CV/748/09, in the High Court of the Federal Capital Territory, Abuja.
b) The Suit No. FCT/HC/CV/748/09, being the subject matter of this Appeal was prosecuted against two defendants at the trial Court upon which the judgment was

delivered on 8th November, 2013.
c) The two defendants at the trial Court were: MODULAR LIMITED (the Appellant herein) and one MRS. OGEDEGBE GRACE ADEMAKHE, as the first and second defendants respectively. Copy of the Judgment of the trial High Court of the Federal Capital Territory, Abuja delivered by Honourable Justice A. A. I. Banjoko on 8th November, 2013, upon which the Appellant filed its Notice of Appeal to this Honourable Court is attached as Exhibit A1. See also pages 392 – 436 of the record of appeal.
d) The Appellant being dissatisfied with the said Judgment filed originally, a Notice of Appeal dated 22nd November, 2013 on 4th December, 2013 which was served on the Respondent on 12th December, 2013. Copy of the said Notice of Appeal is attached as Exhibit A2
e) The Appellant subsequently, filed another Notice of Appeal dated 20th January, 2014 on 23rd January, 2014. Copy of the said Notice of Appeal is attached as Exhibit A3
f) The respective Notices of Appeal filed by the Appellant does not reflect the real parties at the trial Court. The Notices of Appeal reflect only two parties, namely the Appellant and the Respondent

herein. The third party in the suit, being MRS OGEDEGBE GRACE was inexplicably omitted.

It is now elementary that the notice of appeal is the spinal cord of an appeal. It is the fulcrum of any appeal so much so that its absence or incompetence makes the entire appeal crumble for the appellate Court will be drained of the jurisdiction to hear and determine the appeal. See MAWO VS. TSINTUWA (2020) 2 NWLR (PT. 1707) 306; EZIM VS. MENAKAYA (2018) 9 NWLR (PT. 1623) 113; ODUNZE VS. NWOSU (2007) 13 NWLR (PT. 1050) 1; KOLAWOLE VS. ALBERTO (1989) 1 NWLR (PT. 98) 382; FBN PLC VS. TSA IND. LTD (2007) 17 NRN 40; KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) 377.
One of the requirements of a valid Notice of Appeal by Order 7 Rule 2(2) of the Court of Appeal Rules 2016 is that it must state the names and addresses of all parties directly affected by the appeal. The parties directly affected by the appeal are in my view the parties to the proceedings at the lower Court. A party directly affected by the appeal is a party to the action at the trial Court. See PEPPLE VS. PRINCEWILL (2011) LPELR – 4487; NESTOIL & ANOR VS. ONUOHA (2011) LPELR – 4590;

STIRLING CIVIL ENGINEERING NIG. LTD VS. FIDELITY BANK (2013) LPELR – 22634.
It is settled law that an appeal is a rehearing, therefore, without a proper order of Court substituting a party, all the parties at the trial Court must be the same on appeal. See Order 7 Rule 2 of the Court of Appeal Rules. Where a party is displaced, as in the present appeal, then the appeal will be incompetent and the appellate Court will lack jurisdiction to hear and determine it. See ADENIRAN VS. OLUSOKAN (2019) 8 NWLR (PT. 1673) 98; ADEGOKE MOTORS LTD VS. ADESANYA (1989) 3 NWLR (PT. 109) 250; NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 1; VERALAM HOLDINGS LTD VS. GARBA LTD (2014) LPELR – 22671.
The objection succeeds on this ground. The Notice of Appeal is clearly incompetent, and the appeal should be struck out.

The Respondent has argued that the purported Notice of Appeal dated 20th January, 2014 but filed on 23rd January, 2014 contained on pages 437 – 442 of the record of appeal was never served on the Respondent, and that the said Notice of Appeal was not included in the Appellant’s bundle of documents. The Appellant has argued that the said Notice of Appeal was served with

the Record of Appeal. The Appellant did not indicate the date that service of the said process was effected on the Respondent, neither did it attach any proof of service to its Counter Affidavit.

It is now trite law that failure to serve process where service is required is a failure which goes to the root of the case. Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Lack of service of Court process impugns on the jurisdiction of a Court to hear a matter. See S. G. B. NIG. LTD VS. ADEWUNMI (2003) 10 NWLR (PT. 829) 526; N. T. ZARIA VS. DANGE (2008) 9 NWLR (PT. 1091) 127.
Without the evidence of service of the Notice of Appeal dated 20th January, 2014 but filed on 23rd January, 2014 on the Respondent, it is deemed the Respondent has not been served, and this will deprive the Court of its jurisdiction to hear this appeal. The objection also succeeds on this ground. See EZIM VS. MENAKAYA (2018) 9 NWLR (PT. 1623) 113.

There is no doubt that the Notices

of Appeal (Exhibits A2 and A3) appear to be against a purported judgment of the High Court of the Federal Capital Territory, Abuja delivered on 1st November, 2013. It is clear that the only judgment which the Respondent is a party to was Exhibit A1 and it was disclosed on the 8th of November, 2013. See pages 392 — 436 of the record of appeal. This in my view is an irregularity which should not affect the hearing of the appeal on the merit. The objection therefore fails on this ground.

RESOLUTION OF ISSUE TWO
It is not in dispute that the Appellant herein filed 2 (two) notices of appeal on the 4th December, 2013 and 23rd January, 2014 respectively. The record of appeal was served on the Respondent on the 17th March, 2014.

of appeal in the Court below, the registrar of that Court with all due expedition start to prepare the record. See KAREEM VS. LPDC (2019) 15 NWLR (PT. 1096) 481; N.I.W.A. VS. SPDC NIG. LTD (2011) 6 NWLR (PT. 1244) 618. By the provision of Order 8 Rule 4, where at the expiration of 60 days after filing of the Notice of Appeal, the registrar has failed and or neglected to compile and transmit the record of appeal, it shall then become mandatory for the Appellant to compile the records of all documents and exhibits necessary for the appeal and transmit it to the Court within 30 days after the registrar’s failure or neglect. See NWORA VS. NWABUEZE (2019) 7 NWLR (PT. 1670) 1.
In the present case, the Appellant herein had a duty to compile and transmit the record when the registrar of the trial Court failed to compile and transmit same within 60 days from the date of the filing of the first Notice of Appeal on 4th December, 2013. The record of appeal therefore ought to have been filed within a total period of 90 days from the 4th of December, 2013 when the first Notice of Appeal was filed by the Appellant herein. This 90 day period expired on the 3rd of March,

It is therefore clear that the record of appeal which was transmitted to this Court on the 21st March, 2014, was transmitted outside the 90 days period permitted by the Rules of this Court, and without the leave of this Court.
The law is settled that an Appellant may file as many notices of appeal as he may desire, the relevant date in calculating the length of time is the date on the first notice. See BOLAJI VS. TEJUOSHO (2016) 14 WRN go AT 111 LINES 15 – 25 where this Court held per Obaseki-Adejumo, JCA:
“In calculating the length of time, it is from the date on the first notice which is about 60 days and the revised date still took it to a period stiff outside 21 days. To count from the 19/11/2014 would amount to saying that the first notice has been canceled or non-existent; this cannot be the case and would stretch the cannons of interpretation beyond reason and imagination leading to a radical and irrational interpretation of the provision. The Court cannot shut its eyes to the existence and purport of Exhibit D2. To do this will be a grave miscarriage of justice.”
See further USUAH VS. O. C. LTD (2012) LPELR – 7913; DIMEGWU VS. OGUNEWE (2010) LPELR 5031.

In all, I hold the view that the record of appeal was not properly compiled in accordance with Order 8 Rules 1 and 4 of the Rules of this Court. I hold that there is no competent record of appeal upon which this appeal can be heard in the circumstances.
The preliminary objection also succeeds on this ground.

Having held that the notice of appeal and the record of appeal are both incompetent, this appeal ought to be struck out.
It is accordingly hereby struck out.
N200/000 cost is awarded in favour of the Respondent against the Appellant.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered in Court by my learned brother, Mohammed Baba Idris, JCA.

My learned brother has adequately dealt with the preliminary objection to the hearing of this appeal. It is elementary to state that an appeal in our jurisdiction is initiated by filing a notice of appeal. The notice of appeal is the foundation of a proper and valid appeal. When the notice of appeal is defective, it would not be able to activate the jurisdiction of this Court.
In the instant appeal, the

names of the parties were not complete on the notice of appeal. No leave of Court was placed before this Court. Furthermore, the record of appeal was transmitted outside the prescribed time and there was no request or application to regularize it.
I therefore agree with my learned brother in the lead judgment that this appeal is incompetent and it is hereby struck out. I abide by the order as to cost as made in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my brother, MOHAMMED BABA IDRIS, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

My Lord has in a concise manner resolved the Preliminary Objection which has terminated the appeal in limine. There is therefore no appeal to be determined.
I also abide by the other orders made in the lead Judgment.

Appearances:

C. Igwe Esq. with him, N. C. Igwe Esq. and E. D. Docimmor Esq. For Appellant(s)

Ajayi Esq. For Respondent(s)