AGROVET SINCHO PHAM LTD. & ANOR. V. ESTATE OF ENGR. DAHIRU & ORS. (2013)

AGROVET SINCHO PHAM LTD. & ANOR. V. ESTATE OF ENGR. DAHIRU & ORS.

(2013)LCN/5897(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of February, 2013

CA/K/205/2003

RATIO

CONTRACT: WHEN CAN A CONTRACT BE SAID TO HAVE BEEN CONLCUDED

After all contract is concluded when parties are on consenus on what they agreed to do, and they are bound by the terms of the agreement. See AG RIVERS V. AG. AKWA IBOM (2011) 8 NWLR (Pt. 1248) 31, In the case of EBLA CONST. LTD. V. COSTAIN (WA) PLC. (2011) 6 NWLR (Pt. 1242) 110 at 129 JAURO JCA said:
“The defendant cannot receive advance payment, issue a performance bond and at the same time say there was no contract. That amounts to approbating and reprobating”PER ITA G. MBABA, J.C.A

CONTRACT: PARTIES WHO HAVE ENTERED INTO A CONTRACT VOLUNTARILY WITHOUT FRAUD, MISTAKE, DECEPTION OR MISREPRESENTATION WILL BE BOUND BY SUCH A CONTRACT
See AG RIVERS V. AG AKWA IBOM (SUPRA) HELD1:
”Where parties have entered into a contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement.PER ITA G. MBABA, J.C.A

CONTRACT: A COURT OF LAW MUST RESPECT SANCTITY OF CONTRACT OR AGREEMENT

Moreover, a court of law must respect the sanctity of the agreement reached by the parties, where they are in consensus ad dem as regards the terms and conditions freely and voluntarily agreed upon by them and expressed in a written form. (ARJAY LTD. V. A.M.S. LTD. (2003) 7 NWLR (Pt. 820) 577; Sona Breweries plc. V. Peters (2005) 1 NWLR (Pt. 908) 478; OWONIBOYS TECHNICAL SERVICES LTD V. U.B.N. LTD. (2003) 15 NWLR (Pt. 844) 545; S.E. CO. LTD. V. N.B.C.I. (2006) 7 NWLR (Pt. 978) 198; ORIENT BANK (NIG.) PLC V. BILANTE INT’L LTD. (1997) 8 NWLR (PT. 515) 37 referred to (Pp. 83 paras B – C; E – F; 187, paras. C – B).PEITA G. MBABA, J.C.AR

JUSTICES:

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEROGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. AGROVET SINCHO PHAM LTD.

2. IBRAHIM YARO NUHU – Appellant(s)

AND

ESTATE OF ENGR. DAHIRU
DAWAKI & 11 ORS – Respondent(s)

ITA G. MBABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Kano High Court, presided over by Mohammed Umaru Alkali J. in suit No. K/609/95, delivered on 31st, day of July, 2002, wherein the court held for plaintiff (now Respondents).
The 2nd Appellant, as managing Director of 1st Appellant, in March, 1995 had sold to the Respondent, Engineer Dahiru Dawaki, (now late and represented by his Estate & 11 Ors) all that property situate and known as No. 86 Ogbomosho Avenue, Sabon Gari, Kano, covered by Certificate of Occupancy No. LKN/COM/91/44, belonging to the 1st Appellant, at the total cost of N3.9 million. At the conclusion of negotiations the Respondent made a part payment of N1.5 million to the 2nd Appellant, through Mr. M.T. Badamasi, who the 2nd Appellant claimed was introduced to him as lawyer and agent of the plaintiff/Respondent. The terms of the oral agreement were later reduced into writing by the 2nd Appellant, as per Exhibit I, a letter to the Respondent dated 21st March, 1995. The Respondent later made further payment of N400, 000.00 to the 2nd Appellant, also through Badamasi and receipts of the two payments were issued to M.T. Badamasi in his name – Exhibits 2 and 3. The balance of N2 million was not paid by the Respondent before the alleged date line for payment expired, despite repeated demand by the Appellants. The Appellants thereafter, by their Counsel, Messrs Ibrahim M. Boyi & Co, returned the sum of N1.9 million to the Respondent through M.T. Badamasi.
That was in August, 1995, as per Exhibit 4. A meeting was thereafter held at the instance of the Appellant and M.T. Badamasi wherein it was agreed that the Appellants should pay the Respondent the sum of N350, 000.00, as interest and the Appellant paid the same to the said M.T. Badamasi. Sequel to the return of the said sum of N1.9 million and payment of N350, 000.00 as interest on the N1.9 million, the Respondent took out this action in November, 1995, claming against the Appellants as follows:
“A declaration that there is s valid contract of sale between the plaintiff and the 1st Defendant in respect of the property belonging to the 1st Defendant situate at No. 86 Ogbomosho Avenue, Sabon Gari, Covered by Certificate No. LKN/COM/91/44. An order of specific performance of the said contract. Or in the alternative. A mandatory injunction compelling the 1st defendant to receive the balance of the purchase price N2 million, being the amount outstanding on the contract of sale.
A declaration that the plaintiff is entitled to the statutory right of occupancy in respect of the said property.
Damages assessed at the current market of value of the property.”
At the End of the trial, after hearing all parties and their witnesses, and the addresses of Counsel on both sides, the trial Court on 31st July, 2002 held for the plaintiff (Respondent) as follows:
“Consequently, judgment is hereby entered in favour of the plaintiff as per his statement of claim viz:
(A) declaration that there is a valid contract of sale between the plaintiff and 1st defendant in respect of a house situate at No. 86 Ogbomosho Avenue, Sabon Gari, Kano, covered by Certificate of Occupancy No. LKN/CON/COM/91/44
(B) (i) An order of specific performance of the said contract in the alternative
(it) A mandatory injunction compelling the 1st defendant to receive the balance of the purchase price i.e. N2 million being the amount outstanding on the contract.
(C) A declaration that the plaintiff is entitled to statutory right of Occupancy in respect of the property located at No. 86 Ogbomosho Avenue, Sabon Gari, Kano is also granted.”
(See page 42 of the Record of Appeal).
That is the judgment the Appellants appealed against as per their Notice and grounds of Appeal dated 7th August, 2002 with initial appeal No. CA/K/69A/2002 (pages 70 to 74 of the Records). Appellant later filed Amended Notice of Appeal with the leave of court granted on 15th January, 2013, disclosing the following 4 grounds of appeal:
“GROUND ONE
Error in law
The lower court erred in law when it failed to properly evaluate the evidence adduced by all the parties at the trial, thereby resulted into the wrong conclusion reached by the court.
PARTICULARS
1. The court below only summarized the evidence of both the plaintiff and the defendants and their witnesses and thereafter jumps to the conclusion at it did.
2. It is the duty of the court to summarize and fully consider the evidence proffered by all the parties, review, appraise, ascribe probative value to it, and then weigh the evidence for both sides in the imaginary scale of justice, make definite findings of fact and apply the relevant law in order to reach a just conclusion.
GROUND TWO
The court below erred in law when it failed to determine the issue raised by the defendants to wit: Whether Mr. M.T. Badamasi DW2 was an agent of the plaintiff in the transaction” and thereby resulted into the wrong conclusion reached by the court.
PARTICALARS
1. That the determination of issue above would have changed the decision of the court below.
2. The defendant in both their pleadings and evidence before the court maintains that M.T. Badamasi was an agent of the plaintiff and therefore his act of receiving the sum of N1.9 million blinds the plaintiff.
GROUND THREE
Error in law
The court below erred in law when it based decision on an issue that was never raised either of the parties to the suit.
PARTICALARS
1. The issue, the property was re-sold to a higher bidder was never raised by the plaintiff either in his pleadings or in the evidence adduced at the trial.
GROUND FOUR
Error in law
The court below erred in law when it ordered Counsel to file written addresses instead of oral addresses.
PARTICULARS
The High Court of the States has no constitutional powers or rights .to order counsel appearing before them to file written addresses.
Additional and further grounds to be filed on receipt of the record of proceedings.”
Appellants’ Amended Brief of argument was filed on 14th January, 2013 and deemed duly filed on 15th January, 2013, wherein Appellant formulated alternative issues for determination in respect of three of the amended grounds of appeal (that is, 6 issues from 3 grounds) and another 2 separate issues from the remaining ground. When confronted at the hearing of the appeal on 15th January, 2013, that he did not relate the issues to the grounds of appeal and that he had issues for determination in excess of the grounds of appeal, Appellants’ Counsel, M.T. Tula Esq., prayed to be allowed to abandon the alternative issues and the last issue he formulated for determination, saying that the last issue had no ground to support it. He also said that the remaining 4 issues derived, serially, from the 4 grounds of appeal.
The 4 issues were:
(1) Whether there was a conclusive contract of sale between the plaintiff/Respondent and defendants/appellants in March, 1995 where (sic) the defendants/appellants breached same.
(2) Whether there was proper evaluation of the evidence adduced at the trial and definite findings of fact made by the Court below.
(3) Whether the court below was right in not resolving the issues whether Mr. M.T. Badamasi (DW2) was an agent of the plaintiff/respondent in the transaction which gave rise to the subject suit before the Lower Court.
(4) Whether the issue that “the property was resold to a higher bidder” was an issue before the court.”
The alternative issues to issues 1, 2 and 4 and the last issue, which the Appellants applied to abandon, were:
“(1) whether the plaintiff was entitled to a decree of specific performance
(2) Whether the non-evaluation of the evidence adduced at the trial and definite findings of facts affect the judgment of the court below
(4) Whether the court below was right when it held that at the time the property was resold the time given to the plaintiff/Respondent to pay the purchase price was not expired but only that the defendants were attracted to a higher bidder and
(8) Whether the court below was constitutionally right in accepting and using written addresses from Counsel to the parties instead of oral addresses.”
The Respondents had filed a Notice of preliminary objection to the Appeal on 30th March, 2011, saying that the appeal was incompetent, on the grounds that:
(1) The Appellant’ Notice of Appeal dated 7th August, 2002 was incompetent having been signed by and for Maitama Tula & Co. an entity that is not a legal practitioner.
(2) That grounds one, two and three of the appellants’ Notice of Appeal are incompetent for being grounds of facts and mixed law and facts for which no leave of this court was sought and obtained.
(3) That issues for determination numbers 1, 2, 3 and 4 of the Appellants’ Brief of Argument are invalid and incompetent, having been distilled from the incompetent grounds of Appeal.”
The Respondents also filed their Brief on 30th March, 2011, wherein they argued the preliminary objection, on pages 3 to 5. On the main appeal, (in the alternative) the Respondents adopted the issues distilled by the Appellants (including the ones in alternatives).
Appellants filed a Reply brief on 14th March, 2013 where they reacted to the preliminary objection and defended their position.
Of course, the Respondents’ Preliminary objection has to be considered first by us, as a successful resolution of same in favour of the objector can bring an end to the entire appeal. RABIU V. ADEBAYO (2012) ALL FWLR (Pt. 643) 1836 at 1842:
“A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.”
(NGWUTA JSC)
The first arm of the Respondents’ objection appears over taken, having been raised against the Notice of Appeal by the Appellants, dated 7th August, 2002, which was signed for and on behalf of PP. Maitama Tula & Co. obviously not a legal practitioner (but a law firm of Appellant’ Counsel). Having amended the Notice of Appeal on 15th January, 2013, with the leave of this court, which application was not opposed by the Respondents, the Amended Notice of Appeal, therefore, superceded the defective Notice of appeal, and, since the Amended Notice of Appeal, filed on 14th January, 2013 (and deemed duly filed on 15th January, 2013) appears to have cured the defect, having been signed by M.T. Tula Esq., Counsel for the Appellants, the objection on that point, lapses. It must, however, be stated that Appellants were wrong to argue, in their Reply Brief, that because, their firm, Maitama Tula & Co., is registered with the Corporate Affairs Commission it has become qualified to sign the document! Even if the law firm were a limited liability Company, thereby enjoying legal personality under the law, it would still be unqualified to sign the document, not being a person called to the BAR, as a legal practitioner in Nigeria.
It must also be added that the error of omitting to state the name of a legal practitioner, duly registered to practice law as barrister and solicitor in Nigeria, on a process of court meant to originate a matter can be fatal, on enquiry as to whether the person who signed the process is known to law as duly registered legal practitioner. There can be no argument that a Law Firm cannot claim to qualify as a legal practitioner, registered with the Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See the unreported decision of this court in BELLO V. ADAMU (APPEAL No. CA/K/235/09, delivered on 8th June, 2011; OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) 521 at 530; or (2007) 3 SCNJ 185; NEW NIGERIAN BANK V. DEDANG LTD (2005) 4 NWLR (Pt. 916) 573.
The 2nd ground of objection is that Appellants’ 1 to 3 grounds of appeal are all grounds of facts or mixed law and facts; that Appellants require the leave of this court to rely on such grounds of Appeal. Respondents relied on the Supreme Court case of IWO KASHADADI V. INGILA SARKIN NOMA (2007) 6 SCNJ 177 at 180.
I think the learned Counsel for the Respondents has greatly misconstrued the provisions of the law relating to requirement for leave to argue grounds of facts and of mixed law and facts, as stipulated in section 242 (1) (2) of the 1999 Constitution, as amended, as such legal hurdles do not stand in the way of an appeal against a final decision of the High Court, sitting at first instance. See section 241 (1) (a) of the 1999 constitution as amended.
It should also be noted that the objection was raised on the grounds 1 – 3 of the Appellants’ Notice of Appeal, not on the Amended Notice of Appeal on which this appeal is predicated. Accordingly, the 2nd point of objection ceases to be live and valid.
In the same way, the 3rd point of objection collapses, having been predicated on the success of the first two points of objection, which have failed.
I must, however, observe that both the Appellants’ Counsel and Respondents’ Counsel guffed in their appreciation of the law, with regards to formulating issues of appeal from grounds of appeal. The operative rule is that appeals are argued on issue(s), distilled from ground(s) of appeal, which must arise from a ratio in the judgment appealed against. And only one issue can be distilled from a single ground of appeal, through two or more grounds of appeal can combine to give rise to a single issue for determination. See the case of AFRIBANK PLC V. YELWA (2011) ALL FWLR (Pt. 585) 200; ABRAHAM OSADARE & ORS v. LIQUIDATOR, NIGERIA PAPER, MILLS: CA/K/91/2009 an unreported decision of this court, delivered on 8th December, 2011, where it was said:
“… appeal are argued, not on grounds but on issues at appellate court, because the issue(s) distilled and argued must necessarily flow from the ground(s) of appeal duly raised. Thus, once a ground of appeal is included in the issue raised and argued, the said ground of appeal is subsumed in the said issue formulated …..” See also NWAIGWE V. OKERE (2008) ALL FWLR (Pt. 431) 843; OSENI V. BAJULU (2010) ALL FWLR (Pt. 511) 813.
It is therefore surprising that the Respondents did not see anything wrong with the Appellants distilling 8 issues from 4 grounds for the determination of the appeal, though Counsel made three of the issues as alternatives, which was equally strange! The Respondents did not also seem to know that issues formulated should be related to the grounds of appeal!
I also think formulating two alternative issues to a ground of appeal is equal to formulating two issues from the ground of appeal. Or, at best, it is a mark of the indecision of Appellant, speculating as to which issue he (Appellant) would want to relate to the ground of Appeal! The court should not be dragged into such indecision and speculation.
However, since the Appellants’ Counsel had admitted his error and prayed to abandon the offending extra issues for determination, the excess issues are hereby struck out, together with the arguments thereunder.
Thus, the remaining 4 issues for determination, adopted by the Appellants, and distilled, serially, from the 4 grounds of appeal, remain valid and competent for the determination of this appeal.
The Respondents’ preliminary objection, therefore, fails and is hereby dismissed.
Arguing the issue 1, Appellants’ counsel, M.T. Tula Esq., submitted that there was no conclusive contract of sale of the property between the Appellant and the Respondent in March 1995, because:
(1) the property was sold to the respondent for a consideration of N3, 900; 000.00 (Three Million Nine Hundred Thousand Naira)
(2) The Respondent was to pay the purchased price by installments and same to be paid between March to end July, 1995
(3) The original certificate of occupancy covering the property was to be handed to the respondent upon completion of the payment of the total purchase price which was to be on or before the end of July, 1995. He relied on Exhibit 1 (page 63 of the Record of Appeal).
He argued that only N1.9 million was paid to the Appellants through DW2, Respondents’ lawyer, leaving a balance of N2 million, and that contract sum was to be fully paid by ending of July, 1995. He relied on the evidence of DW2 and Exhibit 2 & 3.
He submitted that a person seeking to enforce a contract must show that all the conditions precedent has been fulfilled; that because the total cost of the land was to be paid by the ending of July, 1995, time was of essence in the contract; that the evidence that 2nd Appellant later approached him (Respondent) to repurchase the property was immaterial and extraneous as the same was not contained in Exhibit 1, and not borne out of the case of the Respondent at the trial.
Counsel submitted that there was failure on the part of the Respondent to discharge his obligation under the agreement; that the Respondent was guilty of delay in the performance of his part of the agreement; that the property in the good was to be transferred to the respondent on completion of the payment; thus what happened was agreement to sell. He relied on section 1 (3) of the English Sale of Goods Act 1893, which he said was applicable in Nigeria.
I have studiously looked at Appellants’ issue 1 and compared it with the Appellants Amended ground 1, and indeed with all the grounds of Appeal in the Amended Notice of Appeal. I cannot see the relationship of the issue with the said ground one or with any of the grounds of appeal in this case.
Whereas the 1st ground of appeal complains that the learned trial court failed to properly evaluate the evidence adduced at the trial, and so reached wrong conclusions, thereby erring in law, the issue one and argument there under are on whether there was a conclusive contract of sale, capable of being breached! As earlier stated, that issue does not even address any of the grounds of appeal, (earlier reproduced in this judgment).
I had earlier stated the law, that appeal are argued on issues and that an issue for determination must flow or arise from a ground or grounds of appeal, not at large. The issue must be fixed and circumstanced in the ground. See the case of ABRAHAM OSADARE V. LIGUIDATOR, NIGERIAN PAPERS MILLS (SUPRA); OMILANI V. OMSORE (2007) ALL FWLR Pt. 354) 351; CBN v. AMAO (2007) ALL FWLR (Pt. 351) 1490; and any issue that does not arise from the ground of appeal is liable to be struck out. See FABIYI v. ADENIYI (2006) 6 NWLR (pt. 662) 532; GARBA V. STATE (2000) 6 NWLR (Pt. 661) 378; CHIME V. CHIME (2001) 3 NWLR (Pt. 701) 527.
I do not, therefore, think it is prudent to waste any more judicial time on the issue 1, the same being at large and a stranger to the grounds of appeal and to the judgment of the trial court which is challenged. Issue one is therefore, hereby, struck out.
Issue 2, is whether there was proper evaluation of the evidence at the trial and definite findings of fact made by the court below. This issue rather tends to arise or flow from the Amended Ground one of the Appeal, which states (without particulars) as follows:
“(1) The Lower Court erred in law when it failed to properly evaluate the evidence adduced by all the parties at the trial…”
I shall therefore consider the issue as arising from the said ground.
Arguing the issue, learned Counsel for the Appellant said that the trial court only summarized the evidence of the parties and their witness and thereafter gave judgment in favour of the Respondent, without making definite findings of facts and without considering the issues raised by the parties; he argued that the trial court failed to consider the exhibits rendered and admitted in evidence especially Exhibits 1, 2 and 3. He added that if Exhibit 1, 2 and 3 were properly evaluated by the trial judge, the judgment would have been otherwise; that the trial judge failed to resolve and make definite findings on the issue whether M.T. Badamasi (DW2) was at all times material an agent of the Respondent.
Counsel submitted that a judgment of court must demonstrate, in full, a dispassionate consideration of the issues properly raised and heard; that it must show a clear resolution of all the issues that arose for consideration in the case. He relied on the case of EZEOKE v. NWAGBO CHIEF (1988) 1 NWLR (Pt.) 616; MAGAGI v. ODOFIN (1978) SC 95.
He urged us to review the evidence and resolve same in favour of the Appellants.
Issue 3
“Whether the court below was right in not resolving the issue whether Mr. M.T. Badamasi Dw2, was an agent of the plaintiff/respondent in the transaction which gave rise to the subject suit before the court below”
This issue appears to have arisen from the Amended ground 2 which said:
“The court below erred in law when it failed to determine the issue raised by the defendants to wit: whether Mr. M.T. Badamasi DW2 was an agent of the plaintiff in the transaction – and thereby resulted into he (sic) wrong conclusion…”
I shall therefore consider this issue as flowing from the Amended ground two of appeal.
Arguing issue 3, Counsel said the trial court, exercising its powers under section 223 of Evidence Act, asked the 2nd defendant (DW1) some questions on how he came to know Badamasi (DW2) and he answered that DW2 was introduced to him by the plaintiff (Respondent). Counsel said that this piece of evidence was not challenged or contradicted at the trial; that from the evidence it was clear the DW2 (M.T. Badamasi) was at all times material an ‘agent’ of the Respondent, especially as the sum of N1.9 million paid to the Appellants was done through the said M.T. Badamasi, as per Exhibits 2 and 3; that DW2 had said that he knew all the transactions of the plaintiff (Respondent) and sometimes kept some of the Respondent’s money (page 23 of the Record). He further argued that it was clear that the money (N1.9 million) paid by the Respondent for the land was returned to him, through DW2 who paid the same into the Respondent’s account; that additional sum of N350, 000.00 (interest) was paid to the Respondent through the DW2 (whom the Respondent described as ‘curia’ in his pleadings). He submitted that the return of the N1.9 million and the payment of N350, 000.00 were made in August, 1995; that it follows that M.T. Badamasi (DW2), by accepting the monies, acted on behalf of the Respondent, thereby invalidating and terminating the contract between him (Respondent) and the Appellants; that DW2 was agent of the Respondent.
He urged us to so hold.
Issue 4 is on whether the issue that
“the property was resold to a higher bidder was an issue before the court”
That, obviously, arose from Amended ground 3 of the Appeal, which alleged that the court below erred in law when it based its decision on an issue that was never raised by either of the parties to the suit.
Arguing on this, Counsel for the Appellant submitted that the decision of the trial court that the property, the subject matter of this case, was resold to a higher bidder was not based on or borne out of the case of the plaintiff before the trial court; that the issue was never raised by the plaintiff in his pleadings; that there was no evidence that the property was sold to a 3rd party before the expiration of the dateline; that the law is that a judgment of a court must be premised on the case of the parties before the court.
He urged us to resolve the issues in favour of the Appellants and allow the Appeal.
The Respondents’ Counsel N.A. Ayagi Esq., on issue 2, submitted that there was full and proper evaluation of the material evidence by the court below before reaching its conclusion. He relied on the case of DAKWO V. NIGERIA ARMY (2004) 2 NWLR (Pt. 857) 244 and UBA PLC V. S.A.F.P.U. (2004) 3 NWLR (Pt. 361) on what constitutes a good judgment, namely:
(a) Introduction of the issues in controversy between the Parties
(b) The case of either side to the litigation as revealed on the pleadings,
(c) The evidence called by either side in support of its case.
(d) The resolution of the issues of facts and law put forward by each party, and
(e) The court’s conclusion based on the resolution of the issues and claims before the court.
Counsel also relied on the authority of JOHN OGBU V. THE STATE (2007) 2 SCNJ 319 at 322, where the Supreme Court held.
“A court is not under a duty to make a definite finding in its judgment, except on relevant, necessary and material issues or evidence upon which the judgment is predicated.”
He submitted that a careful and dispassionate look and perusal of page 30 to 42 of the Records of Appeal (the judgment of the Lower Court) would reveal substantial compliance with the criteria, earlier reproduced on what constitutes a good judgment. In particular, Counsel referred to page 40 of the Records, where, he said, the learned trial judge evaluated both the oral and documentary evidence adduced, especially Exhibit 1, and thereupon made his findings, having carefully sifted out areas of dispute between the parties. Counsel added that Exhibit I was the most relevant and material document to be considered in the case, and was duly considered and evaluated; that Exhibit 1, 2 and 3 only went to confirm the contract.
He urged us to resolve the issue against the Appellant.
On issue 3, Counsel for the Respondents submitted that, contrary to the assertion of the Appellants, there was no clear and uncontroverted evidence before the Lower Court establishing agency relationship between DW2 and the Respondent in the transaction; that the (original) Respondent, in his evidence as PW2 had told the court that he did not present DW2 as his (Respondent’s) agent; that the 2nd Defendant (2nd Appellant), himself, had testified of having paid commission to the DW 2, and, that that would not have happened if DW 2 was Respondent’s agent; that the Respondent did not use the DW 2 to negotiate the contract, but did it alone; that the DW2 could not have accepted a purported termination of the contract on behalf of the Respondent, in the circumstances.
Counsel submitted that by the evidence before the court below, the said DW 2 was no more than the courier he was referred as, that is, a messenger whose job was only to deliver message he was asked to; that the DW 2 had even stated himself that the N1.9 million, sent to him on purported termination of the transaction, was sent to him in a disguise as a parcel, and not knowing the sender he collected same after which, having been unable to find the defendant to return same to, lodged same in the plaintiff’s account, out of desperation; that, he said, did not look as au action of an authorized agent! He argued that the fact that DW 2 knew the entire plaintiff’s transaction and even kept his monies cannot impute agency relationship in this particular transaction; that DW 2 was on his own in this scenario. He urged us to resolve the issue against the Appellant.
On issue 4, Respondents’ Counsel submitted that the reference by the Lower Court to “a Higher Bidder” in the judgment was made in passing, and that issue was not the basis for the judgment; he said that even that passing remark by the trial court derived from the evidence of the 2nd Appellant (DW1) who testified to the effect that he actually resold the property for a higher price – page 17, line 9 of the Record. Thus, since the remark was a mere passing comment, it did not form a basis for the judgment.
Finally, Counsel for the Respondents urged us to dismiss the Appeal and affirm the judgment of the Lower Court.
RESOLUTION OF ISSUES
ISSUES 2 and 3 are closely related, having to do with evaluation of evidence at the trial and findings of facts on the evidence, particularly, whether Mr. M.T. Badamasi (DW 2) was an agent of the Respondent in the contract, particularly too when he collected the N1.9 million, returned by the Appellants, (the part payment made by the Respondent to buy the property). I think it will be proper to consider the two issues together.
Appellants’ quarrel on the issue of improper evaluation was that the trial court only summarized the evidence of the parties and their witnesses and, thereafter, gave judgment in favour of the Respondents, without making definite findings of facts and/or without considering the issues raised by the parties and examining Exhibit 1, 2 and 3.
In particular, Appellant complained that the trial court failed to resolve and make definite findings on the issue whether M.T. Badamasi (DW2) was agent of the Respondent, at all times material in the contract transaction.
The Respondents denied the claim of Appellants and submitted that the Lower Court made full and adequate evaluation of the evidence and duly considered the Exhibits, particularly Exhibit 1, and made findings of them, including the role of the M.T. Badamasi (Dw2), whom the Respondent said was more of a courier or messenger, and even earned commission from the Appellant; that he was not agent of the Respondent, especially when he collected the N1.9 million from the Appellants, purportedly returning the same to the Respondent. He referred us to pages 30 to 42 of the Records (particularly 40) where the trial judge considered the evidence complained of.
On pages 40 and 41 of the Record of Appeal the learned trial judge said:
“I have carefully perused the evidence of both the plaintiff and his witness and also …of the defendants and their witnesses… it is not in dispute that there was a sale agreement of house No. 86 Ogbomosho Avenue Sabon Gari, Kano between the parties. There is also no dispute that the sum of N1.9 million was paid in total by the plaintiff to the 2nd defendant. There was also an agreement entered into by the parties on this transaction. Exhibit 1, the agreement was that the original Certificate of the house will only be released to the plaintiff on completion of payment of the purchase price, or when the house becomes vacant. That the house is under mortgage to the bank of the North. Nevertheless, before the expiration of the 3 months the defendants, instead of accepting payment from the plaintiff or pressing for payment, were busy negotiating how to re-purchase the house as, according to DW2, whom the plaintiff has alleged posed as the owner of the house, the other Directors of the 1st defendant did not approve of the sale of the house by him as it is a family property”
I think that was a beautiful evaluation of the evidence adduced at the trial, by the trial court as well as articulate findings of facts, to the effect of the conclusion of the transaction relating to the sale of the property, even though payment of the purchase price was yet to be completed, and the release of the property to the buyer (possession) was to be done in future. It can also be appreciated that Exhibit 1, which tried to articulate (in writing) what the parties may have agreed upon, orally, when the sale was concluded, was authored by the Appellants (done on 1st Appellant’s letter head and signed by the 2nd Appellant). The letter stated, in part:
“We hereby wish to confirm that we have received the sum of N1, 500, 000.00 (one million five hundred thousand naira only) vide our receipt No. 10505 dated 21st March, 1995, being deposit made in respect of our property located at No. 86 Ogbomosho Avenue (formally Yoruba Road) Sabon Gari, Kano. Under the cover of LG. Certificate of Occupancy No. 10516 CUM recertified statutory Certificate of Occupancy No. LKN/CON/COM/91/44, sold to you at the cost of N3, 900, 000.00 (Three Million Nine Hundred Thousand Naira Only). It is understood that the balance of N2, 400, 000.00 (Two Million Four Hundred Thousand Naira Only) shall be paid to us between now and July ending 1995, consequent upon which the original title (sic) document shall be transferred to you. It is also understood that we may continue to occupy the building till end of August, 1995 or anytime after that date but not beyond December, 1995 – at your liberty. It should also be understood that the amount paid shall include 11 air conditioners, all ceiling “font lighting and switches. Furthermore, for the benefit of doubt, the sale did not include our office furniture and equipments as well as vertical blinds and rugs” (See page 63 of the Records).
From the tone of the letter by the Appellants, the sale had been concluded and the property in the good passed to the buyer, though the payment was yet to be completed and the physical taking of possession shifted to August (or latest December), 1995! After all contract is concluded when parties are on consenus on what they agreed to do, and they are bound by the terms of the agreement. See AG RIVERS V. AG. AKWA IBOM (2011) 8 NWLR (Pt. 1248) 31, In the case of EBLA CONST. LTD. V. COSTAIN (WA) PLC. (2011) 6 NWLR (Pt. 1242) 110 at 129 JAURO JCA said:
“The defendant cannot receive advance payment, issue a performance bond and at the same time say there was no contract. That amounts to approbating and reprobating”
There is no clause in the letter by the Appellants suggesting that Appellants would review the agreement of sale, even if the total purchase price were not paid by the end of July, 1995, or have a rethink whether to continue with the sale or not See AG RIVERS V. AG AKWA IBOM (SUPRA) HELD1:
”Where parties have entered into a contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. Moreover, a court of law must respect the sanctity of the agreement reached by the parties, where they are in consensus ad dem as regards the terms and conditions freely and voluntarily agreed upon by them and expressed in a written form. (ARJAY LTD. V. A.M.S. LTD. (2003) 7 NWLR (Pt. 820) 577; Sona Breweries plc. V. Peters (2005) 1 NWLR (Pt. 908) 478; OWONIBOYS TECHNICAL SERVICES LTD V. U.B.N. LTD. (2003) 15 NWLR (Pt. 844) 545; S.E. CO. LTD. V. N.B.C.I. (2006) 7 NWLR (Pt. 978) 198; ORIENT BANK (NIG.) PLC V. BILANTE INT’L LTD. (1997) 8 NWLR (PT. 515) 37 referred to (Pp. 83 paras B – C; E – F; 187, paras. C – B)
By Exhibit 1, the only consequence which the Respondent was likely to suffer, as long as he failed to complete the payment of the purchase price ending of July or before August or December, 1995, was non-release of the building (property) to him.
Appellants were therefore importing a strange clause into the Agreement, when they argued:
“That at the expiration of the time for performance of the contract …. the part payment of N1.9 million was returned to the plaintiff … therefore invalidating and terminating the contract between (them).” (See paragraphs 4, 3:2 of the Amended Appellants’ Brief)
When considering the fact that the Appellants purportedly re-sold the property to a higher bidder in Augusto 1995, even before the time implied for the completion of payment by the Respondent and/or for vacating the property by them (Appellants) was due, it becomes more clear why the Appellants were in a hurry to breach the contract. 2nd Appellant had told the court:
“After the end of the date line end of August the property was sold to Sule Batsari for Abdullahi Wase, It’s true that I sold it for a higher price. I sold it for N4.9 million. I was not paid the balance by plaintiff that is why I sold it, not because of the better offer…”
By that evidence, the Appellants had presented two different purported date lines for completion of the payment “ending of July” (as per Exhibit 1) and “end of August” (as per oral evidence in court)! What was the time allowed for payment of the complete cost of the land?
That goes to show that the oral agreement which the parties had on the sale of the land did not foreclose the payment or completion of payment for the land, as long as the Appellants were not ready to vacate the property for Respondent to take possession. That was the possible inference.
It would therefore be wrong to accuse the learned trial judge of not evaluating the evidence adduced in the case, or of not making findings as to facts in the case.
In the light of what I have already reproduced, above, it is obvious that the learned trial judge had adequately evaluated the relevant evidence as to the contract between the Appellants and Respondents and had made correct findings as to the facts thereof, which findings were not denied, and have not been appealed against.
On the role of the DW2 (M.T. Badamasi) in the entire transaction, evidence shows he acted both for the Respondent and for the Appellants in the transaction at different times. DW2 originally acted for the Respondent, as his friend, when he paid the N1.9 million, part payment. Thereafter, he became more of Appellants’ agent, earning Commission from Appellants and, finally, testifying for them. The trial court had observed, thus in his judgment:
“Nevertheless before the expiration of the 3 months, the defendants, instead of accepting payment from the plaintiff or pressing for payment were busy negotiating how to re-purchase the house as according to DW2, whom the plaintiff, has alleged posed as the owner of the house, the other Director of the 1st defendant did not approve of the sale of the house by him as it is a family property.” See page 41 of the Records.
In the Respondent’s evidence (PW2) he told the court that M.T. Badamasi (DW2) was not his agent and had no authority to represent him (Respondent) when he (DW2) purportedly collected the N1.9 million from the Appellants and the alleged N350, 000.00 interest and paid into Respondent’s account (See page 11 of the Records)
PW2 further said:
“Subsequently, I paid them another N400, 000.00 totaling N1.9 million. It was agreed that I gave (sic) them 3 months grace to pack. Still I was nor (sic) given a Certificate before the expiration of the two months the defendant take (sic) M.T. Badamasi to my house requesting me to resell the property to them with interest but I refused. The 2nd defendant comes (sic) again with Badamasi for the same request and I refused. There was no question of the Certificate then as they were … concerned with the re-buying the house. The balance of N2 million was to be paid when the certificates are surrendered and the defendant ready to move out. They refused to pack out… I head (sic) that they have paid some money in my account…”
That evidence seems to explain the game plan between the Appellants and the DW2 (M.T. Badamasi), on how to recover the land from the Respondent and sell to it the higher bidder, who was ready to pay N4.9 million.
In his evidence the Appellant (DW 1) even admitted paying commission of N150, 000.00 to DW2 (Badamasi) out of the N1.5 million initially paid by the Respondent for the land. (See page 15 of the Record).
On page 17, under cross examination, the DW1 said:
“The plaintiff did not pay any commission for the transaction. I paid the Commission to Badamasi.”
The DW2 (Badamasi) could not therefore have been an agent of the Respondent, in the circumstances, since it was the Appellants who were paying him for his services and therefore had control over him (DW2). The old saying that “he who pays the pipper dictates the tune” seems to hold sway here, as the urge to earn more Commission from the Appellants may have driven the DW2 to betray his friend, of many years, and join force with the Appellants to deny him (Respondent) of the benefit of the contract. It is, indeed, sad and disappointing that the DW2, a lawyer and civil servant, who introduced himself as a sitting Magistrate, played such an ignoble role, which obviously conflicted with his office of Magistrate.
I, therefore, have no difficulty in holding that the DW2 (Badamasi) was not an agent of the Respondent, when he acted in betrayal of his friend as he had no authority of the Respondent to collect the refund of the N1.9 million and/or negotiate the payment of N350, 000.00, alleged interest on the said returned sum of N1.9 million.
DW2’s evidence revealed that much, when he said:
“When I was going to Mecca in 1999 (sic) the 2nd defendant requested for more money and I told the plaintiff and he said till I come back. When we came back from Mecca I learnt that the house has (sic) been sold to another person. I can’t remember when it was I came back from Mecca. When I heard about the sale of the house it was not after the dateline given to the plaintiff i.e. the date line has not expired by then. I then contacted the plaintiff and he said I should go out from (sic) the 2nd defendant but before I could contact him, he came to me that they want to repurchase the house from the plaintiff… I told them it will be a big problem. 2nd defendant visited me more than 8 times for the purpose… Later 2nd defendant wrote a letter by courier addressed to me and when I opened the letter I saw a cheque of N1.9 million for Dahiru. I contacted the plaintiff but he said he will not take it and I went round looking for 2nd defendant, but could not see him. Then since I have access to Dahiru’s account, Commerce Bank, I decided to lodge it and I did so. When the plaintiff saw the statement of his account with excess N1.9 million he became mad with me… Later 2nd defendant sent in a cheque of N350, 000.00 to my office and which I lodged at plaintiff s account at Commence Bank and (the) following week when the plaintiff came and I told him and he was annoyed and that he is only interested in purchasing the house and he said he will take the matter to Court.” (See pages 23 and 24 of the Records)
There is, therefore, no proof that he (DW2) was instructed by the Respondent to act in that capacity. See the case of OSIGWE V. P.S.P.L.S. MANAGEMENT CONSORTUM LTD (2009) 3 NWLR (pt. 1128) 378; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (pt. 622) 290 of 329.
On the 4th issue, Appellants quarreled with the trial Court’s remark that the Appellants resold the property to a higher bidder, saying that the sale to a higher bidder was not an issue by the plaintiff at the trial, and not borne out of evidence of the plaintiff; that the plaintiff never raised it as an issue in his pleadings; that it was wrong for the court to go on a voyage of discovery to say that the Appellants re-sold the property during the existence of the contract between them and the Respondent as the time to complete the payment by the Respondent did not expire; that that was not borne out of the evidence.
To that the Respondent argued that the remark by the learned trial judge was only a passing comment and did not form the basis of the judgment. He added that the remark, itself, was a reference to the evidence supplied by the Appellants at the trial.

I think the Appellant were unfair to the learned trial judge by accusing him of going on a voyage of discovery to discover that Appellants resold the property to higher bidder when the time given to the Respondent to complete payment of the contract sum did not expire. That evidence of reselling the property for higher price, was, infact, supplied by the 2nd Appellant himself (I had earlier reproduced same in this judgment). The DW2, also, while testifying for the Appellants, specifically, added that:
“When I head (sic) about the sale of the house it was not after the dateline given to the plaintiff i.e. the date line had not expired by then.” Page 23 of the Record.
That remark, by the trial court was, therefore, very much located in the evidence before the court, and was a passing comment, which did not form the basis of the judgment. Of course, a court is entitled to make such passing comments in the course of making its decision.
By law, a ground of appeal and issue there from, can only be valid, if it attacks the ratio decedendi or substantial point of controversy in the judgment. It cannot be based on the dicta or words and comments made by a judge while navigating the route to its decision, except where the obiter dicta is so linked with the ratio decedendi as to be deemed to have radically influenced the ratio decedendi. See WEMA BANK PLC. v. BRASTEM STER NIG. LTD. (2011) 6 NWLR (pt. 1242) 58 at 76.
The Supreme Court decision in CPC v. INEC (2012) 29 WRN 1 at 41 says:-
“Any grounds of appeal which do not arise from the ratio of the judgment appealed against cannot stand for reason of incompetence”
In the case of KOTOYE V. SARAKI (1992) 11/12 SCNJ (pt. 1) 26, it was held:
“Where I ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision.”
See also OLUFRAGBA V. ABDULRAHEEM (2010) ALL FWLR (PT. 512) 1034, ratio 2; BABARINDE V. THE STATE (2012) 29 WRN 98 ratios 11 and 12.
The said issue 4, which derived from the 3rd ground of Appeal, was therefore a stranger in this appeal, having not attacked a ratio decedendi or point of controversy in the judgment.
I therefore resolve the issues against the Appellants and hold that the appeal is, wholly, devoid of merit, and should be dismissed. It is, accordingly, dismissed, as I uphold the decision of the trial court.
Appellants shall pay cost of this Appeal, assessed at N50, 000.00 (fifty thousand Naira only) to the Respondents.

ABDU ABOKI, J.C.A: I have the privilege of reading before now the lead judgment of my learned brother ITA G. MBABA JCA which has just been delivered. I entirety agree with his conclusion that there is no merit in this appeal and it ought to be dismissed, I abide by the consequential orders contained therein.

HABEEB A. O. ABIRU, J.C.A: I have had the opportunity of reading in draft before now the lead judgment just delivered by my learned brother, Mbaba, JCA. I agree with the reasoning and conclusions and only desire to make some comments on some aspects of the case.
The Respondents raised a preliminary objection to this appeal by a notice of preliminary objection dated the 28th of March, 2011 and Counsel to the Respondents argued the preliminary objection in his brief of argument. The first ground of the notice of preliminary objection was that the notice of appeal dated the 7th of August, 2002 filed by the Appellants was incompetent as it was signed in the firm name of the Counsel to the Appellants, Maitama, Tula & Co, a non-legal practitioner. As noted in the lead judgment, the sting was taken out of this ground of objection because this appeal was heard on the basis of an amended notice of appeal dated the 7th of January, 2013, which was deemed properly filed on 15th of January, 2013, and not on the notice of appeal dated the 7th of August, 2002, and the amended notice of appeal was signed by Counsel to the Appellants, M. J. Tula Esq., in his personal name. The focus of my comments is not the ground of the objection but the response of the Counsel to the Appellants thereto.
Counsel to the Appellants filed a reply brief of arguments to the preliminary objection and it was dated the 7th of January, 2013 and was deemed properly filed on the 15th of January, 2013. Counsel filed a copy of the certificate of registration of his law firm, Maitama, Tula & Co, along with the brief of arguments and he submitted in his response argument that the ground of objection was misconceived and that it was now certain that a partnership or firm if duly registered can sign any process of the court as “and Co”. Counsel relied on Holding No 4 in the report of the Supreme Court decision in Ogundele v. Agiri in (2010) All FWLR (pt 502) 1 at 7 for this submission. This case was also reported in (2009) 18 NWLR (Pt 1173) 219 and this holding was taken from the statement of Ogbuagu, JSC on pages 246-247 H-D where His Lordship in his contributory judgment observed thus:
“Before the reservation of the judgment, I had drawn the attention of Mr. Ajibola, off record, to the fact that their brief was faulty in that it was signed by ‘Ajibola & Co’ and there is no evidence that it is a firm duly registered as such. He did not respond to my observation. A partnership or firm, unless duly registered as such, with respect is not a legal practitioner recognized by law or a person entitled to practice as a barrister and solicitor … if learned counsel who appear before this court persist in this practice of signing any process of this court as & Co without evidence of being duly registered as such, it may be obliged to discountenance such process, including briefs, such signing in my respectful but firm view is not an irregularity… It is a fundamental error. However, in the interest of the litigants, I will go on for the last time, with the merits of this appeal.”
It is obvious from the submissions of the Counsel to the Appellants on this issue that Counsel did not read the whole report of the case of Ogundele V. Agiri supra and that he only relied on the summarized holdings made by the editor of the law report. The Supreme Court has held that the use of head notes in making references to past decision is a lazy way of doing research. In Franchal (Nig) Ltd V. Nigeria Arab Bank Ltd. (2000) 9 NWLR (Pt 671) 1 Uwais, JSC at pages 13 to 14 H-A said:
“It is lazy for counsel to rely on head notes in law reports instead of reading the whole of the facts of the case he is relying on to see how relevant the decision in the case is to his own case.”
This point was restated by I.T. Muhammad, JSC in his lead judgment in Dairo V. Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99. The learned Justice stated at page 144G that:
“…it is not desirable or ideal for a counsel to rely and cite holdings or editor’s summary of a case. That in my view is a lazy counsel’s approach. A counsel who is serious must devote his time and attention to go deep into the judgment of a court in order to arrive at the exact holding of that court. This will certainly obviate occurrence of avoidable mistakes.”
Perhaps if Counsel had taking time to read the full report he would have noticed that the statement of Ogbuagu, JSC was as obiter dictum and that it was not the ratio decidendi of the decision of the Supreme Court in the matter. There are clear decisions of the Supreme Court on the issue of the signing of court processes in a firm name in the cases of Okafor V. Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade V. Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd V. NNPC (2011) 9 NWLR (Pt 1252) 317 and the unreported decision of the full panel of seven Justices of the Supreme Court in First Bank of Nigeria Plc V. Maiwada & Ors delivered on 25th of May, 2012. In all these decisions, the Supreme Court was categorical in holding that processes signed in name of a firm were incompetent, without any exceptions or qualifications. It elementary that where e lower court is confronted with two seemingly conflicting decisions of a higher court, it must focus on the ratio decidendi of the decisions, and not the obiter dictum, and it is the ratio decidendi of that decision of the higher court with similar facts with the case under consideration by the lower court that binds that lower court – Atolagbe V. Awuni (1997) 9 NWLR (Pt 522) 536 and Osakue V. Federal College of Education, Asaba (2010) 10 NWLR (Pt 1201) 1. It was thus fool hardy for the Counsel to the Appellants to have sought to seek solace in this matter in the statements of Ogbuagu, JSC in Ogundele V. Agiri supra. The submission of Counsel to the Appellants in his reply brief that “it was now certain that a partnership or firm if duly registered can sign any process of the court as “and Co” was a complete misstatement of the law.
Another area of this case that calls for comments is the drafting skills exhibited by the Counsel to the Appellants in the processes filed. In the Appellants’ brief of argument, Counsel distilled eight issues for determination from four grounds of appeal; the first and second issues for determination, the third and fourth issues for determination and the sixth and seventh issues for determination were stated to be in alternative to each other. Counsel did not relate any of the issues for determination to the grounds of appeal. At the hearing of the appeal, Counsel to the Appellants made no reference to these anomalies until he was confronted by the Court and he requested to be allowed to abandon the alternative issues as well as the eighth issue for determination.
An issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a parry, such a party is entitled to win the appeal – Okoye V. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd. V. Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (pt 945) 392. Issues for determination are an important part of a brief of arguments and its purpose is to enable the parties narrow the issues in the grounds of appeal filed. The characteristics of a well drafted issue for determination in a brief of argument are precision, accuracy and clarity – Uwaifo V. Uwaifo (2005) 3 NWLR (pt. 913) 479, Iloabachie V. Iloabachie (2005) 13 NWLR (pt 943) 695.
By the nature of their importance, it behoves a Counsel seeking to prosecute an appeal to be clear in his head, and in his mind, on the exact areas of the decision of a lower Court that he has grouses with and to display this clarity in presenting them as issues for the Court of Appeal to determine. An appeal is not a fishing expedition or a trial by error process where a party just comes to try his luck. It is a process that requires learning, deliberation and a painstaking commitment. Counsel to the Appellants, with respect, did nor display any of these qualities in his drafting of the issues for determination in this matter. The Court of Appeal, speaking on the necessary drafting skills a Counsel must possess, said in SCOA (Nig.) Plc V. Danbatta (2002) 13 NWLR (Pt 795) 461, at 472 C-F thus:
“Drafting is an important tool in advocacy. A solicitor who could not present his client’s case clearly in the brief, if it is a case in the appellate courts, or in the pleadings, if it is a case before the High Court or Federal High Court, could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings … Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy it he is poor in drafting mechanism.”
The drafting skills displayed by the Counsel to the Appellants bring to mind the comments of Aderemi, JCA (as he then was) in MV Arabella V. Nigerian Agricultural Insurance Corporation (2002) 15 NWLR (pt 791) 570. The learned Justice stated thus at page 582:
“To say the least, the above five issues raised by the cross-appellant are very horrible.
They do not indicate that a person with legal training has drafted them. Is seems to me that an ordinary prose writer who has no learning in the profession of law will produce far better and knowledgeable issues than the above five issues. If the Profession of law will not be subjected to ridicule, I think counsel of the type holding himself out as representing the cross-appellant in this matter will do well to seek the assistance of able and well learned senior members of the Bar (and they are legion in Nigeria) to always help in vetting whatever processes he prepares before filing same in the Registry of any court.”
In fact, but for this Court desire to do substantial justice and resolve this appeal on the merits, all the issues for determination, and by consequence this appeal, ought to have been struck out. It is hoped that Counsel will take heed and make efforts to improve his drafting skills.
I endorse the resolutions of the issues in this appeal as ably done in the lead Judgment. I also dismiss this appeal and affirm the judgment of the loser Court. I abide the consequential orders in the lead judgment.