AG. NIGER STATE v. EXECUTIVE CHAIRMAN OF THE EFCC & ORS (2021)

AG. NIGER STATE v. EXECUTIVE CHAIRMAN OF THE EFCC & ORS

(2021)LCN/14977(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/A/453/2018(R)

RATIO

PRELIMINARY OBJECTION: IMPORTANCE OF CONSIDERING PRELIMINARY OBJECTION FIRST

The settled position of the law is that when a Court is faced in any matter, including an appeal, with adverse applications in which one is seeking to terminate a proceeding in limine either for non-compliance with substantive law or Rules of the relevant Court and the other application is seeking to remedy or rescue the case or the impugned process or proceeding from the destructive effect of the alleged non- compliance or breach, the application seeking to put an end to the suit or appeal will not be taken first. The Court must first hear and determine the application seeking to remedy the situation so as to discern if it is possible to save the process or the proceedings from imminent collapse or termination. It is to avoid putting the cart before the horse. I call in aid the following cases: –
1. NALSA TEAM ASSOCIATES VS NNPC (1991) 8 NWLR (PART 212) 652 AT 676 B – C TO 677A per KARIBI- WHYTE, J.S.C. who had this to say: –
“It is important to appreciate the basic distinction between hearing an application and granting the prayers in it. Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy the defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can then be argued. The contention of learned counsel for the appellant before us is predicated on the premise that there being no competent appeal, there was no jurisdiction to hear the application for extension of time which invariably rests on the existence of a valid appeal. This contention flows from the judgment of the Court below where Kolawole, J.C.A. held;
“Having reviewed all the cases cited by learned Senior Advocate. I dare say not a single one of those cases supports his contention that this Court is incompetent to entertain an application for extension of time within which to apply for leave to appeal. On the contrary, some of these decisions support appellant’s application.” PER PETER OLABISI IGE, J.C.A.
APPLICATION: DUTY OF THE COURT IN THE EXERCISE OF ITS DISCRETION TO HEAR APPLICATIONS BEFORE IT

In the exercise of its discretion to hear applications before it, the Court is guided by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. See Khawam v. Elias (1960) FSC. 224; (1960) SCNLR 516. Where in the exercise of its discretion an application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant whose application to regularise his appeal, the basis for the application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion, See Abiegbe & Ors. v. Ugbodume & ors. (supra).”
The same principle was reiterated in the case of ATTORNEY-GENERAL OF THE FEDERATION V A. I. LTD & ORS (1995) 3 NWLR (PT. 378) 388 AT 397 E – F where KUTIGI, J.S.C. later CJN, RTD said:

“When the two motions came before us for hearing on 5th December, 1994 Professor Kasunmu learned senior counsel for the respondent/applicant insisted that his motion must be taken first since it was earlier in time and if granted there would be no further need for the appellant’s motion. It was then pointed out to him that since the appellant’s motion which was wider in scope also clearly covered his own, the two motions would be taken together beginning with the appellant’s counsel, I would have thought that Professor Kasunmu ought to have been aware of the general practice by now that where in the same case there are two adversely competing motions before a Court, one “Constructive” and the other potentially “destructive”, the Court will normally proceed to take the former motion first unless it will be inequitable to do so, so that if it succeeds, there would be no need for the latter motion which will then be withdrawn cad struck out accordingly.” PER PETER OLABISI IGE, J.C.A.

APPEAL: PRINCIPLES GUIDING THE COURT IN GRANTING AMENDMENT OF APPEAL

In deserving cases a Court has unfettered discretion to grant an amendment subject to the said discretion being exercised judicially and judiciously. See the case of CHIEF (DR) PETER AFUWA & ANOR V THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) 18 NWLR (PART 1279) 797 at 828 H to 829 A – F per FABIYI J.S.C. who said:
“In matter of judicial discretion since the facts of two cases are not always the same, this Court does not make it a practice to lay down rules or principles to fetter the exercise of its discretion or that of the lower Courts. In matters of discretion no one case is authority for the other. A Court cannot be bound by a previous decision to exercise its discretion in a regimented way because that would be as it were, putting an end to discretion. See: Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 at 647; Attorney-General, Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436 at 461; Odusote v. Odusote (1971) 1 All NLR 219 at 222. PER PETER OLABISI IGE, J.C.A.

DISCRETION: NATURE OF JUDICIAL DISCRETION

Judicial discretion is a sacred power which inheres to a Judge. It is an amour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form of prompting by the parties. Discretion had been defined to mean a power or right conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. Il, 431 A. 2d 1229, 1233, Black’s Law Dictionary, Sixth Edition page 466.
It is clear that a judicial officer should exercise his discretion judicially and judiciously as well. See: University of Lagos v. Olaniyan (1985) 16 NSCC (Pt. 1) 98 113, (1985) 1 NWLR (Pt. 1) 156; Eronini v. Iheuko (1989) 2 NSCC (Pt. 1) 503, 313; (1989) 3 SC (Pt. 1) 30, (1989) 2 NWLR (Pt. 101) 46.

Let me say it is passing that this Court does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion. Judicial discretion is a vital tool in the administration of justice. See: Adisa v. Oyinwola (supra)”.
In his own contribution Commassie, J.S.C. has this to say on page 84 of the Report thus: –
“Therefore, can the lower Court exercise its discretion without considering the material facts placed before it. If so, can any appeal against the exercise of that discretion be a matter of pure law without reference to the facts considered by the lower Court. In my view, the answer would be in the negative. Furthermore, in trying to unravel the questions stated above, I have searched for the meaning of the word “Judicial discretion” in Black’s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, the word or phrase was defined as follows: –
“The exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right. Then, in the New International comprehensive Dictionary of the English Language – Encyclopedia Edition at page 365 the word “discretion” was defined as-
“The act or the liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without willfulness or favour”.
Both dictionaries referred to the word “circumstances” which means the facts or peculiar nature of the case which a Judge exercising its discretion would consider.
Thus, whichever way the appellants put it an appeal against the exercise of discretion by the lower Court must involve the consideration of the “circumstances” in order to determine whether discretion was judiciously exercised. Thus, this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower Court”. PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

ATTORNEY-GENERAL OF NIGER STATE APPELANT(S)

And

THE EXECUTIVE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. KATAH PROPERTY AND INVESTMENT LIMITED 3. SADIQ AIR TRAVELS AGENCY LIMITED RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The appeal herein was entered in this Court on 15/5/2018. The 2nd and 3rd Respondents filed motion dated 11th June, 2020 on 13th June, 2020 challenging the competence or validity of the appeal herein and seeking that it be struck out. It reads:
i. “Striking out this appeal.
ii. Striking out the records of appeal compiled for this appeal.
iii. Striking out the purported Appellant’s brief of argument dated 14th June, 2018 and filed on 19th June, 2018.
iv. Striking out the appellant/applicant’s motion on notice dated 29th October, 2018 and filed the same day in which the appellant is praying the Court to hear this appeal on the appellant is brief alone.
Such further orders.

TAKE FURTHER NOTICE that the grounds of this application are as follows:
i. The appeal is not properly constituted and therefore incompetent.
ii. The name of the 3rd respondent to this case in the lower Court as reflected in the ruling of the lower Court at page 1550 in vol. 2 of the record of appeal is Sadiq Air Travels Agency Ltd and not Sadiq Travel Agency Ltd whom the appellant has now

made a party to this appeal without any order of this Court.
iii. The appellant/respondent filed two notice of appeal before this Court, one dated and filed on 25th April, 2018 while the other one was dated and filed on 2nd May, 2018.
iv. In the two notices of appeal the appellant unilaterally without the leave of this Court listed Sadiq Travels Agency Ltd who has never been a party to this matter, as the 3rd Respondent to this appeal.
v. The purported record of appeal of the appellant was based on the said two incompetent notices of appeal.
vi. The summons to parties by the Appeal Registry of the lower Court to settle the record of appeal also following after the incompetent notices of appeal reflected Sadiq Travels Agency Ltd as the 3rd Respondent even though no such person was a party to this case in the lower Court.
vii. The appellant is brief of argument dated 14th June, 2018 and filed on 19th June, 2018 also incompetently reflects Sadiq Travels Agency Ltd as the 3rd respondent, thus, rendering the brief incompetent.
viii. An appeal is incompetent where the notice of appeal is vitiated in any way.

The appellant’s motion seeking an order for the appeal to be heard on its brief of arguments alone also incompetently reflects Sadiq Travels Agency Ltd as the 3rd respondent.
x. Apart the fact that the record of appeal is based on the two incompetent notices of appeal referred to above, the appellant is aware that its purported record of appeal is incomplete but took no steps to remedy same.
xi. The appeal Court will not hear an appeal an incomplete record of appeal.
xii. The appellant did not serve notice of appeal on Sadiq Air Travels Agency Ltd who has not even been made a party to this appeal of the two notices of appeal filed by the appellant.
xiii. No summons was served on Sadiq Air Travels Agency Ltd for the settlement of the records for this appeal.

AND TAKE FURTHER NOTICE that the hearing of this application, the appellants will rely on the record of appeal already before this Court and all other processes mentioned above.
The said motion is supported by 18 paragraphs Affidavit which are as follows:
“I, Oluwole Ilori. Esq. Nigerian, Legal Practitioner of 5th Floor, NICON Insurance Plaza, Central Area, Abuja, do make

oath and say as follows:
1. I am one of the solicitors assisting Chief Akin Olujinmi, CON, SAN, the lead counsel to the applicants in this appeal.
2. By reason of the foregoing, I know the fads of this case and I have the authority of the applicants to swear to this affidavit.
3. I know as a fact that in the lower Court as borne out by the ruling subject of this appeal at page 1550 of Vol. 2 of the record of appeal now before this Court shows Sadiq Air Travels Agency Ltd. as one of the parties to the proceedings and not Sadiq Travel Agency Ltd that the appellant has made a party to this appeal.
4. The originating process at page 3 of Vol. 1 of the record of proceedings also shows Sadiq Air Travels Agency Ltd as one of the parties to the proceedings and not Sadiq Travel Agency Ltd that the appellant has made a party to this appeal.
5. Page 764 of Vol. 1 of the records also shows the certificate of incorporation of the appellant as Sadiq Air Travels Agency Ltd. and not Sadiq Travel Agency Ltd listed as 3rd respondent to the appeal by the appellant.
6. I know as a fact that the appellant/respondent filed two notices of appeal

before this Court, one dated and filed on 25th April, 2018 white the other one was dated and filed on 2nd May, 2018.
7. The two notices of appeal are contained at pages 1575 to 1587 of the purported record of appeal of the appellant.
8. In the two notice of appeal the appellant named the 3rd respondent to this appeal as Sadiq Travels Agency Ltd who has never been a party to this matter.
9. The appellant’s brief of argument dated 14th June, 2018 and filed on 19th June, 2018 also made Sadiq Travels Agency Ltd, the 3rd Respondent to this appeal even though no such person was a party to this case in the lower Court as stated at paragraphs 3, 4 and 5 above.
10. The purported record of appeal of the appellant is based on the said two notices of appeal referred to above.
11. I know as a fact that the summons to parties by the appeal Registry of the lower Court to settle the record of appeal dated 30th April, 2018 and contained at page 1588 of Vol. 2 of the record of appeal obviously relied on the parties listed in the said notices of appeal and listed Sadiq Travels Agency Ltd as the 3rd Respondent even though no such person was a party to this case in the lower Court.

I know as a fact that there was no notice of appeal served on Sadiq Air Travels Agency Ltd who was not even made a party to this appeal in any of the two notices of appeal filed by the appellant.
13. The certificate of service of notice of appeal at page 1589 of Vol. 2 of the record shows that the notice of appeal was served only on the parties named therein and not Sadiq Air Travels Agency Ltd.
14. I further know as a fact that no summons was served on Sadiq Air Travels Agency Ltd for the settlement of the records for this appeal.
15. The appellant’s motion seeking an order for the appeal to be heard on its brief of argument alone also reflects Sadiq Travels Agency Ltd as the 3rd respondent to the application.
16. I know as a fact that the appellant was made aware by the applicants by letter dated 28th August, 2018 that its purported record of appeal was incomplete but took no steps to remedy the situation. A copy of the tetter which was received by a member of staff of the appellant’s Counsel, Audu Esther on 5th September, 2018 is attached herewith as Exhibit A.

I further know as a fact that the Office of the Deputy Chief Registrar of this Court was also notified by letter dated 20th September, 2018, that the purported records compiled for this appeal was incomplete. A copy of the letter is attached herewith as Exhibit B.
18. I swear to this affidavit in good faith, conscientiously believing the contents to be true and correct in accordance with the Oaths Act.”

The Appellant filed Counter Affidavit of 12 paragraphs which are as follows:
“I, AMEH AUDU, Male, Adult, Christian, Nigerian, of J. J. USMAN & CO. No. 26, Ogbomosho Street, Area 8, Garki, Abuja Federal Capital Territory do hereby make Oath and state as follows:
1. That I am a Litigation Clerk in the Firm of J. J. Usman & Co, who are Counsel to the Appellant/Respondent in this Appeal, by virtue of which I am conversant with the facts herein deposed to.
2. That except otherwise stated, all facts deposed to herein are within my personal knowledge.
3. That I have the permission, consent and authority of the Appellant/Respondent and that of my employers to depose to this Counter Affidavit.
4. That I have read the affidavit of the 2nd

and 3rd Respondents deposed to by Oluwole Ilori, Esq. but sworn to on the 13th day of June, 2019, 2020.
5. That I know as a fact that there was a typographical error in the name of the 3rd Respondent.
6. That the name of the 3rd Respondent was not correctly spelt in the Appellant/Applicant’s Notice of Appeal dated 2nd May, 2018 and the Brief of Argument.
7. That the correct name of the 3rd Respondent is “Sadiq Air Travels Agency Ltd” but was mistakenly written as “Sadiq Travels Agency Ltd.”
8. That the Appellant/Respondent had by a Motion on Notice on Notice dated the 11th day of June, 2020 and filed on the same day before this Honourable Court is seeking to correct the error.
9. That the Appellant/Respondent will be prejudiced if the 2nd and 3rd Respondent’s application is granted.
10. That the 2nd and 3rd Respondent/Applicants will not be prejudiced if this application is refused.
11. That it is in the interest of justice to refuse this application.
12. That I, AMEH AUDU, do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true, to the best of my knowledge, information and belief and by virtue of the provisions of the Oath Act.”

Written Addresses were exchanged between the Learned Silk to the 2nd and 3rd Respondents/Applicants and Learned Senior Counsel to the Appellant. The Written Address of the Applicants was dated and filed 22nd June, 2020. The Written Address of the Applicant/Respondent was also filed on 22nd day of June, 2020. The Respondents/Appellants filed Reply on Points of law on 26th June, 2020. The application was heard on 2nd November, 2020 when the Learned Senior Counsel to the Parties adopted their argument.

The Learned Senior Counsel to the Applicants predicated his submissions on the grounds stated on the Motion papers. He made reference to what he described as “crucial points” which are:
1. That the Appellant violated the Court of Appeal Rules 2016 by failing to set out all the parties to the appeal as required by the Rules of this Court.
2. That the appeal is not properly constituted and liable to be struck out.
3. That the Court cannot deem as properly filed and served the Notice of Appeal because the signature of the Registrar that can authenticate

the Notice of Appeal was not so signed.
4. That the records of appeal compiled for the appeal are not complete.

Learned Silk submitted that Notice of Appeal is the foundation and Originating process of an appeal and defect in respect of it will vitiate the appeal and the Court will lack the jurisdiction to entertain the appeal. He relied on the case of:
1. F.B.N. PLC vs. MAIWADA (2013) 5 NWLR (PART 1348) 444 at 510 BC.
2. UWAZURIKE v. A. G. FEDERATION (2007) 8 NWLR (PT. 1035) 1 at 17 A – B.
3. ODUNZE V. NWOSU (2007) 13 NWLR (PART 1050) 1 at 28 DE.
4. NWAIGWE VS. OKERE (2008) 13 NWLR (PART 1105) 445 AT 474.

He informed the Court that the Appellant filed two Notices of Appeal contained on pages 1575 to 1587 of the records all of which he said contained defects. He stated that the names of 2nd and 3rd Respondents were omitted in the said Notice of Appeal. That this is contrary to Order 7 Rule 2 of the Court of Appeal Rules 2016. That the Notice of Appeal filed on 11/6/2020 in anticipation of the grant of Appellant’s application to amend Notice of Appeal filed on 2/5/2018 the names of the Applicants were conspicuously

omitted as parties directly affected by the appeal. That this is fatal to the appeal. He relied on the cases of:
1. ADENIRAN V. OLUSOKUN II (2019) 8 NWLR (PART 1673) 98 at 111 B – C and 122 C.
2. ODOFIN V. AGU (1992) 3 NWLR (PART 229) 250 at 369.

Learned Silk submitted that the said Notices of Appeal filed on 25/4/2018, 2/5/2018 and 11/6/2020 are incompetent and ought to be struck out. That all processes already filed by the Appellant including Appellants Brief of Argument and Motion to amend ought to be struck out.

He stated that another ground for the attack on the Notice of Appeal is that one Sadiq Travels Agency Limited was made 3rd Respondent to this appeal notwithstanding that Sadiq Travels Agency Limited was never a party to the proceedings in the lower Court and that any change in the parties can only be made upon proper application to Court in that behalf otherwise there would be no valid appeal and the Court will lack the jurisdiction to entertain the appeal. He relied on the cases of COTECNA INTERNATIONAL VS. CHURCHGATE (NIG) LTD (2010) 18 NWLR (PART 1225) 346 at 396 F – G and G. & T. INVESTMENT LTD & ANOR VS. WITT & BUSH LTD.(2011) 8 NWLR (PART

1250) 500 at 538. He referred to the certificate of incorporation of 3rd Respondent on page 3 Vol. 1 and at 1550 where he said the name of 3rd Respondent is stated as SADIQ AIR TRAVELS AGENCY LIMITED but that the appeal filed by appellant on 25/4/2018 and 2/5/2018 at pages 1575 and 1579 of vol. 2 the appellant changes the name of the 3rd Respondent to SADIQ TRAVELS AGENCY LTD.

The Learned Silk submitted that on each of the foregoing grounds the Notice of Appeal filed by the Appellant are incompetent and they must all be struck out and the appeal dismissed.

According to Learned Counsel, he observed that the Appellant had in its Motion filed on 11th June, 2020 is praying the Court to deem its purported amended notice of appeal and purported amended Brief of Arguments as properly filed and served. He submitted that even if the afflictions suffered by the Notices of Appeal and the Appellant’s Brief were amendable, the prayer for deeming order will be incompetent on the case authority of ANI V. OTU (2017) 12 NWLR (PART 1578) 30 AT 71 A – B.

He referred to paragraphs 16 and 17 of Affidavit in support and Exhibits A & B thereto which show according to the Applicant’s Learned Counsel that they wrote to the Registry of Court below and the Appellant informing them that some documents were missing from the record of appeal compiled but that the Appellant did nothing about it. That this Court cannot hear an appeal on incomplete record. He relied on the case of OKOCHI v. ANIMKWOL (2003) 18 NWLR (Pt 851) 1 at 23 C – F.

On the application of the Appellant to the effect that the appeal be heard on Appellant’s Brief alone, Learned Silk to the Applicants contended that the motion ought to be dismissed on the ground that no Notice of Appeal was served on Sadiq Air Travels Agency Ltd and no summons was served on Sadiq Air Travels Agency Ltd for settlement of records for this appeal. That the said Sadiq Air Travels Agency Ltd was not made a party to this appeal and as such the record of appeal is incompetent. He urged this Court to grant the Appellants application.

Responding to the submissions of the Applicants’ Learned Senior Counsel, Jacob Johnson Usman Esq. for the Appellant/Respondent relied on the Counter Affidavit filed against the application of 2nd and 3rd Respondents/Applicants.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel to the Appellant raised preliminary issue contending that the Motion on Notice filed the Applicants are incompetent because where a Respondent is contending that an appeal is incompetent the method provided by law to challenge the competence of the appeal is for the Respondent to file a Notice of Preliminary Objection. He cited numerous cases but suffice to mention some of them viz:
1. Sangana v. Usman (2013) 6 NWLR (PART 1349) 50 at 91 – 92 H – C per I. T. MUHAMMED now CJN.
2. NNPC V. FAMFA OIL LIMITED (2012) 17 NWLR (PART 1328) 148 at 185 – 186 F – B.
3. NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PART 1268) 600 at 641 E – F

He urged the Court to strike out the application. That even if the Motion is competent, the Affidavit in support is incompetent because the Deponent to the Affidavit in support is neither the 2nd Respondent nor the 3rd Respondent as the authority of the person who deposed to the Affidavit was not disclosed thus rendering the Affidavit incurably bad relying on the case of SHODIPO vs. LEMMINKAINEN & ANOR (1986) 17 NSCC (PART 1) 79 at 85. He urged this Court to strike out the Affidavit in support of the Motion.

On whether the Applicants have made out a case on the merit for the striking out of the appeal as being incompetent, Learned Counsel to the appellant drew attention to the fact that the Applicants in their Affidavit in support acknowledged that the name of the 3rd Respondent is “SADIQ AIR TRAVELS AGENCY LTD and not “Sadiq Travels Agency Ltd” as wrongly spelt or stated on the Appellant’s Notice of Appeal. He relied on the Notice of Appeal dated 2/5/2018, the contents and grounds thereof as showing and correctly stating the name of 3rd Respondent as reflected in the record all through trial Court. Thus, according to Learned Counsel to the Appellant the act of spelling the name of 3rd Respondent “Sadiq Travels Agency Ltd” to be a mere misnomer that should not defeat the substance of the appeal. That the wrong naming/misspelling does not affect the juristic personality.
He relied on the cases of:
1. HDP V. INEC (2009) 8 NWLR (PART 1143) 297 at 319 D – G.
2. E. C. OKEKE VS. NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR – 43781 per OGUNWUMIJU J.C.A. now J.S.C.
3. MOBIL OIL (NIG) PLC VS. YUSUF (2012) 9 NWLR (PART 1304) 47 at 57 C – F per OKORO, J.C.A. now J.S.C. and many other cases.

That the case of FBN v. MAIWADA (2013) and SS NIG LTD V A. S. (NIG) LTD (2011) and ANI V. OTU, 2017 supra relied upon by the Applicants are distinguishable from facts of this case. He urged the Court to dismiss the application filed by the Appellant.

Replying on points of law with respect to failure of Applicant to come by way of Preliminary Objection to challenge the entire appeal as incompetent instead of Motion of Notice, the Learned Senior Counsel to the Applicant believes the objection of Appellant is misconceived in that such preliminary objection is only apposite for appeal already listed for hearing.

He relied on Order 6 Rule 1 of Court of Appeal Rules 2016 which enables a party to bring Motion on Notice. That by the authority of IKEME vs. ANAKWE (2002) 8 NWLR (PART 669) 484 at 492 this Court can be moved at any stage before an appeal is fixed for hearing on the ground that the appeal is incompetent and in any event a Court can put an end to incompetent proceedings. That objection to jurisdiction could be taken at any stage of the proceedings. He relied on the cases of:

Skenconsult Nigeria Limited v. Sekondy Ukey (1981) 1 SC 4 at 15.
2. ELABANJO VS. DAWODU (2016) 15 NWLR (PART 1001) 76 at 115.

On whether the Deponent to the Affidavit in support disclosed his authority to depose to the Affidavit, Learned Senior Counsel to the Applicants submitted that by paragraphs 2 and 3 of the said Affidavit in support the Deponent disclosed his authority.

The Learned Senior Counsel to the Applicants stated that the case here is beyond “a misnomer” in that the Appellant introduced a non-party to proceedings at lower Court into its appeal to this Court and failed to set out in his notice of appeal, the Applicants as persons directly affected by the appeal.

To Learned Silk there is no redeeming feature in the Appellant’s arguments for any of the two afflictions suffered by the notices of appeal. He urged that the two Notices of Appeal ought to be struck out.

It must be stated that the Appellant has on 11th day of June 2020 filed an application seeking leave of this Court to amend the impugned Notice of Appeal and Appellant’s Brief of Argument.

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The Motion reads:
“MOTION ON NOTICE
(BROUGHT PURSUANT TO ORDER 7 RULE 8 OF THE COURT OF APPEAL RULES, 2016 (AS AMENDED) AND UNDER THE INHERENT POWER OF THE HONOURABLE COURT)
TAKE NOTICE that this Honourable Court will be moved on the……………. Day of …………. 2020 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Appellant/Applicant praying this Honourable Court for the following Order:
1. LEAVE to amend the Appellant/Applicant’s Notice of Appeal in Appeal No. CA/A/453/2018 ATTORNEY GENERAL OF NIGER STATE V. EXECUTIVE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 2 ORS by reflecting the correct name of the 3rd Respondent as SADIQ AIR TRAVELS AGENCY LTD. which was mistakenly written as SADIQ TRAVELS AGENCY LTD.
2. LEAVE to amend Appellant/Applicant’s Brief of Argument in Appeal No. CA/A/453/2018 ATTORNEY GENERAL OF NIGER STATE V. EXECUTIVE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 2 ORS by reflecting the correct name of the 3rd Respondent as SADIQ TRAVELS AGENCY LTD. which was mistakenly written as SADIQ

TRAVELS AGENCY LTD.
3. AN ORDER deeming as properly filed and served the Appellant/Applicant’s Amended Notice of Appeal in Appeal No. CA/A/453/2018 Between ATTORNEY GENERAL OF NIGER STATE V. EXECUTIVE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 2 ORS containing the correct name of the 3rd Respondent.
4. AN ORDER deeming as properly filed and served, the Appellant/Applicant’s Amended Brief of Argument in Appeal No CA/A/453/2018 Between ATTORNEY GENERAL OF NIGER STATE V. EXECUTIVE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 2 ORS dated the 11th day of June, 2020, containing the corrections stated above.
AND
5. FOR SUCH FURTHER order(s) or other order as the Honourable Court might deem fit to make in the circumstances.

TAKE NOTICE that the grounds upon which the application is predicated includes:
i. The Appellant/Applicant in the Notice of Appeal and brief of argument made a mistake in the Name of the 3rd Respondent as it was at the lower Court.
ii. The mistake was occasioned by a typographical error.
iii. There is need for leave of the Honourable Court to amend the Notice

of Appeal and Brief of Argument by filing an amended one.
iv. The Appellant/Applicant had made the necessary corrections as it bothers the name erroneously written and the name omitted in the proposed Notice of Appeal and grief of Argument.”

The supporting Affidavit reads:
AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE DATED 11TH OF JUNE, 2020
1. That I am a Litigation Clerk in the Firm of J. J. Usman & Co, who are Counsel to the Appellant/Respondent in this Appeal, by virtue of which I am conversant with the facts herein deposed to.
2. That except otherwise stated, all facts deposed to herein are within my personal knowledge.
3. That I have the permission, consent and authority of the Appellant/Respondent and that of my employers to depose to this Counter Affidavit.
4. That I know as a fact that there was a typographical error in the name of the 3rd Respondent.
5. That the name of the 3rd Respondent was not correctly spelt in the Appellant/Applicant’s Notice of Appeal dated 2nd May, 2018 and the Brief of Argument.
6. That the correct name of the 3rd Respondent is “Sadiq Air Travels Agency Ltd”

but was mistakenly written as “Sadiq Travels Agency Ltd.”
7. That because of the omission made in the name of the 3rd Respondent, the Notice of Appeal and Brief of Argument does not reflect the correct name at the trial Court. A copy of the Notice of Appeal dated 2nd May, 2018 is annexed herewith and marked as Exhibit “A”.
8. That based on the Notice of Appeal filed at the trial Court, the trial Court compiled the Record of Appeal with the incorrect name at the cover page, A copy of the cover page of two volumes of the Record of Appeal is annexed herewith and marked as Exhibit “A2 and A3”
9. That there is need for leave of the Honourable Court to amend the Notice of Appeal and the Appellant Brief of Argument by correcting the name of the 3rd Respondent to reflect the correct name.
10. That it is now necessary to amend the Appellant/Applicant’s Notice of Appeal and Appellant Brief of Argument. A copy of the Proposed Amended Notice of Appeal and Proposed Appellant brief of Argument are annexed herewith and marked as Exhibit “B and C”.
11. That the omission and mistake in the names stated above is the fault, mistake

and inadvertence of Counsel.
12. That the Appellant Counsel has filed proposed amended Notice of Appeal and Proposed Amended Appellant’s Brief of Argument together with clean copies of the Amended Notice of Appeal and Amended Appellant’s Brief.
13. That the Respondents will not be prejudice if the application is granted.
14. That none of the Respondents will be prejudiced if this application is granted.
15. That the Appellant/Applicant will be prejudiced if this application is refused.
16. That it is in the interest of justice to grant this application.
17. That I, AMEH AUDU, do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true, to the best of knowledge, information and belief and by virtue of the provisions of the Oath Act.”

The 1st, 2nd and 3rd Respondents did not file Counter Affidavit against the Appellant’s Motion to amend its processes as listed in the body of the Motion Papers. The Learned Counsel to the 2nd and 3rd Respondent AKINSOLA OLUJIMI, ESQ however informed the Court that they are relying on the Written Address filed in Support of their

Motion seeking to have the appeal struck out for incompetence as the Appellants had argued that since the processes filed are incompetent they could not be amended or deemed as properly filed.

The learned Silk for the Appellant moved the said application and urged the Court to grant same.
The settled position of the law is that when a Court is faced in any matter, including an appeal, with adverse applications in which one is seeking to terminate a proceeding in limine either for non-compliance with substantive law or Rules of the relevant Court and the other application is seeking to remedy or rescue the case or the impugned process or proceeding from the destructive effect of the alleged non- compliance or breach, the application seeking to put an end to the suit or appeal will not be taken first. The Court must first hear and determine the application seeking to remedy the situation so as to discern if it is possible to save the process or the proceedings from imminent collapse or termination. It is to avoid putting the cart before the horse. I call in aid the following cases: –
1. NALSA TEAM ASSOCIATES VS NNPC (1991) 8 NWLR (PART 212) 652

AT 676 B – C TO 677A per KARIBI- WHYTE, J.S.C. who had this to say: –
“It is important to appreciate the basic distinction between hearing an application and granting the prayers in it. Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy the defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can then be argued. The contention of learned counsel for the appellant before us is predicated on the premise that there being no competent appeal, there was no jurisdiction to hear the application for extension of time which invariably rests on the existence of a valid appeal. This contention flows from the judgment of the Court below where Kolawole, J.C.A. held;
“Having reviewed all the cases cited by learned Senior Advocate. I dare say not a single one of those cases supports his contention that this Court is incompetent to entertain an application for extension of time within which to apply for leave to appeal. On the contrary, some of these decisions support appellant’s application.”
I think the contention before the

Court below was one for determination of priority for hearing in the two applications before it. It is however one of the arguments of the Plaintiffs that the Court was not competent to hear the application for extension of time, etc., there being no valid appeal before it.
In the exercise of its discretion to hear applications before it, the Court is guided by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. See Khawam v. Elias (1960) FSC. 224; (1960) SCNLR 516. Where in the exercise of its discretion an application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant whose application to regularise his appeal, the basis for the application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion, See Abiegbe & Ors. v. Ugbodume & ors. (supra).”
The same principle was reiterated in the case of ATTORNEY-GENERAL OF THE FEDERATION V A. I. LTD & ORS (1995) 3 NWLR (PT. 378) 388 AT 397 E – F where KUTIGI, J.S.C. later CJN, RTD said:

It is therefore imperative for me to consider first the Appellant’s Motion on Notice seeking an amendment to her Notice of Appeal dated 2nd May, 2018 and Consequential Orders to also amend the

Appellant’s Brief of Argument to correctly reflect the name of the 3rd Respondent on all the Appellate processes filed by the Appellant. The Appellant exhibited the Original Notice of Appeal filed and the proposed Amended Notice of Appeal reflecting or showing the amendments sought to be effected or carried out.

at 647; Attorney-General, Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436 at 461; Odusote v. Odusote (1971) 1 All NLR 219 at 222. Judicial discretion is a sacred power which inheres to a Judge. It is an amour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form of prompting by the parties. Discretion had been defined to mean a power or right conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. Il, 431 A. 2d 1229, 1233, Black’s Law Dictionary, Sixth Edition page 466.
It is clear that a judicial officer should exercise his discretion judicially and judiciously as well. See: University of Lagos v. Olaniyan (1985) 16 NSCC (Pt. 1) 98 113, (1985) 1 NWLR (Pt. 1) 156; Eronini v. Iheuko (1989) 2 NSCC (Pt. 1) 503, 313; (1989) 3 SC (Pt. 1) 30, (1989) 2 NWLR (Pt. 101) 46.

not entitled to demand the act as a matter of right. Then, in the New International comprehensive Dictionary of the English Language – Encyclopedia Edition at page 365 the word “discretion” was defined as-
“The act or the liberty of deciding according to justice and propriety, and one’s idea of what is right and proper under the circumstances without willfulness or favour”.
Both dictionaries referred to the word “circumstances” which means the facts or peculiar nature of the case which a Judge exercising its discretion would consider.
Thus, whichever way the appellants put it an appeal against the exercise of discretion by the lower Court must involve the consideration of the “circumstances” in order to determine whether discretion was judiciously exercised. Thus, this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower Court”.

I have already reproduced the Affidavit in Support of the Appellant’s Application to amend. I am of the view that the contents of the Affidavit in Support show that what happened is the inadvertence or

mistake of Counsel that is responsible for the misdescription of the name of the 3rd Respondent. In other words, it is a mere misnomer that can be corrected with the leave of this Court. There is nothing on record to show that the 2nd and 3rd Respondents were/are misled by the omission of the word “AIR” in the name of the 3rd Respondent. The Applicants stated clearly and without equivocation the fact that 3rd Respondent’s name was incorrectly stated as “SADIQ TRAVELS AGENCY LTD” instead of its proper name “SADIQ AIR TRAVELS AGENCY LTD” It is therefore not correct to say that the Appellant joined entirely new person or juristic personality as a Party to the appeal. The only thing is that the 3rd Respondent’s name was wrongly stated. There is no evidence of miscarriage of justice or that the Applicants are misled by the minor mistake in the name of 3rd Respondent.
In situation like this, an application to correct the anomaly or misnomer in the name of a Party will be granted of course. See:
1. THE REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA VS NAMA (2014) 8 NWLR (PART 1408) 1 AT 29 C- H TO 31 A – H per OKORO, J.S.C. who said: –

“I must say that the respondent herein as appellant at the Court below may have goofed when it decided to use the name of the appellant herein as originally and inappropriately used at the trial Court before the amendment. But was that fatal to the appeal? I do not think so. It is trite that an appeal is a continuation of the case from the Court below. It does not initiate a fresh case. As it were, the parties were not in doubt as to the parties to the appeal. Where parties to an appeal are not in doubt but the appeal is wrongly headed, as was done at the Court below, it cannot affect the competency of the Court to hear the appeal on its merit. This is the view long held by this Court in Oruonye Onwunali v. The State (1982) 9 SC 95 at p. 96 wherein Esho, J.S.C., (of blessed memory) held that:
“This Court has in the case of Nofiu Surakatu v. Nigeria Housing Development Society Ltd. & Anor. (1981) 4 SC 26 overruled Addis Ababa v. Adeyemi (1976) 12 SC 51 and since then, technical grounds like wrong heading of an appeal does not fetter hearing an appeal on merit.”
I strongly agree. Maybe I should reiterate the view expressed by Aniagolu, J.S.C. (of

blessed memory) in Joseph Afolabi & 2 Ors v. John Adekunle & Anor. (1983) 2 SCNLR 141 at 150, para. F that:
“…it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities, to the detriment of the determination of the substantial issues between them ……”
As I said earlier, there is nothing on the record to show that any of the parties was in doubt as to the parties or issues in Court and there is no indication that there was any miscarriage of justice.
In any case, this is a situation in law which is referred to as a misnomer. A misnomer can be said to be a mistake in name, i.e., giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. In Emespo J. Continental Ltd. v. Corona S. & Co. 120(6) 11 NCR (Pt. 991) 365, this Court held that a misnomer occurs when the correct person is brought to Court in a wrong name.

In the instant case, the appellant herein actually initiated the suit giving birth to this appeal at the High Court with the name he is now abandoning. All the processes he filed at the Court below bore that name even after the amendment was granted at the High Court.
He did not contest that name at the Court below. He has not shown how he has been affected by the use of that name. Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued.”
2. ALL PROGRESSIVES GRAND ALLIANACE VS ENGR. (MRS) O. UCHENNA UBAH & ORS (2019) 15 NWLR (PART 1694) 25 AT 35 H – 36 A – F per SANUSI, J.S.C. who said:-
“The first question to consider in my view is, is there any party registered as “All Progressive Party” in the list of more than one hundred

registered political parties that have been registered with that name by the 3rd respondent (INEC) which is the constitutionally established body saddled with the responsibility of registration of political parties and conduct of elections in Nigeria? The capital answer is ‘NO’. Again throughout the proceeding in the suit at the trial and lower Courts all the documentary evidence tendered at the trial, there was none that bore the wrong name of “All Progressive Party”. Rather, all the documents bore the name of “AII Progressive Grand Alliance” which is referred to that name throughout the proceedings as the 1st respondent. It is also noteworthy, that even the appellant in all the documents he tendered including his depositions, used the correct name of his party and not “All Progressive Party” as wrongly used in the suit. That clearly shows that the appellant was never misled by the use of the wrong name used by the plaintiff (1st respondent). To my mind, the use of the name “All Progressives Party” is just a ‘Misnomer’ and same cannot be regarded as fatal to the competence of the suit as would deprive the trial Court the

jurisdiction to entertain and hear and determine the matter. It therefore cannot be regarded to have any serious consequence as would render the suit incompetent. I accordingly hold that from the reasons I gave supra, the appellant did not show that it was in any manner misled or overreached by the use of the wrong name of the 1st defendant/respondent in the suit. Infact, the correct names, which clearly featured in all other documentary exhibits, have given full identity of the correct party sued by the plaintiff which was All Progressives Grand Alliance (APGA).”
At pages 386 – H TO 39 A – F ABBA-AJI, J.S.C. also said: –
“A sister case to this appeal No. SC. 451/2019 was delivered by this Court which dismissed the appellant’s appeal. What is new herein is that the 2nd respondent was used and christened as “All Progressive Party” instead of “All Progressive Grand Alliance.” The appellant therefore averred that the wrong use or the suit against a wrong party impinges on the jurisdiction of the Court.
I must say that the appellant has taken this principle beyond measure. Thank God that he acknowledged the fact that it was a wrong name

used and clearly means and demonstrates that he was in no wise deceived and misled. Per Adekeye, J.S.C. in Bello v. INEC & Ors (2010) LPELR-767 (SC), (2010) 8 NWLR (Pt. 1196) 342 in a similar scenario addressed such a mistake of joinder of party or misnomer thus:
“The failure to join as a party a person who ought to have been so joined gives rise to the mistake of non- joinder of party. The fact that a necessary party to the action has not been joined will not render the action a nullity. The proceedings of a Court of law will not be a nullity on the ground of lack of competence of the Court or lack of jurisdiction merely because a plaintiff fails to join a party who ought to have been joined. The Court cannot dismiss a suit because a party who ought to have been joined was left out.”
Misnomer in this sense means, simply, a wrong use of a name. If the entity intended to be sued exists but a wrong name is used to describe it that in my judgment is a misnomer. See Per Ayoola, J.S.C. in

Maersk Line & Anor v Addide Investments Ltd. & Anor (2002) LPELR-1811 (SC), (2002) 11 NWLR (Pt. 778) 317. It is a mistake in name, i.e., giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. When both parties are quite familiar with the entity envisaged in a writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued. See Per Okoro, J.S.C., in Registered Trustees of the Airline Operators of Nig v. N.A.M.A. (2014) LPELR- 22372 (SC), (2014) 8 NWLR (Pt. 1408) 1.”

In any event, the 2nd and 3rd Respondents did not file any Counter Affidavit to challenge the facts deposed to in the Appellant’s Supporting Affidavit and as such the 2nd and 3rd Respondents are deemed to have admitted all the facts and reasons adduced in the supporting Affidavit of Appellant’s application to amend the Notice of Appeal and the Appellant’s Brief of Argument. Facts contained in an Affidavit which are not denied in a Counter Affidavit are deemed admitted by the Party who fails to file Counter or Further Affidavit against the assertions of his opponent or adversary. See HON. RABI DANIEL & ANOR VS HON. IBRAHIM AYALA & ANOTHER (2019) 18 NWLR (PART 1703) 25 AT 36 F – H TO 37 A – B per NWEZE, J.S.C. who said: –
“Now, the truth of the matter as this Court has held in many cases, is that an affidavit is a deposition by the deponent stating clearly his factual position on the issue for consideration. Once the facts deposed to in an affidavit have not been controverted, such facts

must be taken as true except they are moonshine. It is only where there are contested material facts that the Court ought to invite the parties to call oral evidence to resolve the said conflicts. The decisions on these prescriptions are many. Only one or two may be cited here. Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587, 657 – 658; Akwa v. C. O. P (2003) 4 NWLR (Pt. 811) 461; Akpabuyo Local Govt v. Edim (2003) 1 NWLR (Pt. 800) 23: Eze v. UNIJOS (2017) 17 NWLR (Pt. 1593) 1, 14; Inegbedion v. Selo-Ojemen & Anor (2013) 1-2 SC (Pt 11) 59; (2013) 8 NWLR (Pt. 1356) 211; Alagbe v. Abimbola (1978) 2 SC 39; Akinsete v. Akindutire (1966) 1 SCNLR 389. Against this background, the lower Court was right in finding for the first respondent on the strength of the un-contradicted materials in the affidavit evidence. The first respondent had supported his case with an avalanche of un-contradicted materials, namely, exhibits ‘AM1’ – ‘AM7’, attached to the affidavit in support the originating summons, pages 284-404 of the record.”

I am of the firm view that the Appellant’s application has merit.
I am not unmindful of the 2nd

and 3rd Respondent’s argument to the effect that Order 7 Rules 2(1) of the Court of Appeal Rules, 2016 provides that names of the parties to be affected by an appeal must be stated in the Notice of Appeal.
However, Order 4 of the Rules of this Court anticipated and envisages that there may be mistakes or wrong steps in the filing of processes in any appeal hence it provides an avenue to remedy such mistake or blunders the parties may makes in the prosecution of their appeals or filing of Appeal processes in their appeals. This Court has by the provisions of Section 15 of the Court of appeal Act, 2004 and Order 4 Rule 1 been given enormous powers and discretion to allow amendments to be made to correct any mistakes or mistakes or wrong steps in the filing of processes in any appeal. The defects contained in the original Notice and grounds of appeal filed on 2nd May, 2018 can be amended as the defect relates only to minor omission in the name of 3rd Respondent which is not substantial and do not go to the root of the appellant’s appeal. See the case of NZE JEREMIAH OSIGWELEM V INEC & ORS (2011) 9 NWLR (PART 1253) 425 at 440 B – H to 441 A – F per my Noble Lord OWOADE, J.C.A.

The Respondents have not shown what they stand to lose if the amendments sought are granted. The mistake or inadvertence is that of Counsel. The Appellant has demonstrated that the amendments sought ought to be granted.
The Appellant has also separately filed Amended Notice of Appeal and Appellant’s Amended Brief of Argument in anticipation that the application may be granted in order to obviate further delay in the prosecution of the Appeal. The Appellant also rightly apply for deeming Orders for processes already filed as aforesaid. It is a step in the right direction.
See ALHAJI A ODELE ALAWIYE V MRS ELIZABETH ADETOKUNBO OGUNSANYA (2013) 5 NWLR (PART 1348) 570 AT 608 D – E per CHUKWUMA-ENEH, J.S.C. who held:
“To show positive commitment by the Applicant to diligently prosecute this appeal, there is already filed and served the amended notice of appeal dated 28/5/2012 as well as the appellant’s brief of argument also dated 28/5/2012 – all for a deeming Order. Having found that Applicant has placed enough materials as I have posited herein to enable the Court consider the instant application and find the

respondent’s opposition to this relief as misconceived and so the relief is granted and time is extended as prayed so that the applicant’s amended notice of appeal and the Appellant’s brief of argument already filed and served are deemed so properly filed and served today. And I so Order”.
Consequently, the prayers in Appellant/Applicant’s application dated 11th June, 2020 and filed same date are hereby granted as prayed. Leave is hereby granted to the Appellant to amend her NOTICE OF APPEAL filed on 2/5/2018 to reflect the correct or proper name of the 3rd Respondent and the Amended Notice of Appeal already filed and served and the Appellant’s Amended Brief of Argument are HEREBY DEEMED as properly filed and served.
Costs of N30,000 (Thirty Thousand Naira) is awarded in favour of the 2nd and 3rd Respondents.

For the reasons given for the grant of the Appellant’s Motion aforesaid, the Motion filed by the 2nd and 3rd Respondents on 13th June, 2019 seeking to have the appeal herein struck out along with all processes filed therein by the Appellant has no merit and the said Motion on Notice dated 11/6/19 and filed on 13/6/19 by the 2nd and 3rd Respondents is hereby dismissed.
There will be no order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, PETER OLABISI IGE, J.C.A.

I am in agreement with his reasoning and the conclusion that the appellant’s Motion has merit. I too, do grant it and I abide by the consequential order made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in advance the Ruling just delivered by my learned brother, PETER OLABISI IGE, J.C.A.

I am in complete agreement with the reasoning and conclusion reached therein. I also therefore, dismiss the appeal.
I make no order as to costs.

Appearances:

S. OKUTEPA,SAN with him, SYLVIA E. OKOPI, ESQ. and A. O. A. PHILLIPS, ESQ. For Appellant(s)

M. MOHAMMED, ESQ.- for 1st Respondent.
AKINSOLA OLUFINMI, ESQ. with him, BABAGBEMILEKE ODUGBESAN – for 2nd & 3rd Respondents. For Respondent(s)