ALELE v. AMUTADI & ANOR (2020)

ALELE v. AMUTADI & ANOR

(2020)LCN/14510(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/PH/642/2016

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Between

ALBANUS ALELE (For Himself And As Representing The Members Of His Illegal 14 Members Committee Foisting Themselves On Mgbede 16 Location). APPELANT(S)

And

1. MR. CHARLES AMUTADI 2. MR. CHINEDU UGWUTA RESPONDENT(S)

RATIO

SERVICE OF NOTICE OF APPEAL

Order 2 Rule 1(a) of the Court of Appeal Rules, 2016 is quite instructive on what is necessary as regards service of Notice of Appeal. It reads thus:
“Every Notice of Appeal shall be subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; PROVIDED THAT IF THE COURT IS SATISFIED THAT THE NOTICE OF APPEAL HAS IN FACT BEEN COMMUNICATED TO THE RESPONDENT, NO OBJECTION TO THE HEARING OF THE APPEAL SHALL LIE ON THE GROUND THAT THE NOTICE OF APPEAL WAS NOT SERVED PERSONALLY.”
What the Respondent/Objector has to show to sustain his objection is that the Notice of Appeal was not communicated to him at all. He has to show that the Record of Appeal served on him did not contain the Notice of Appeal.
The Respondent has not shown that the Record of Appeal was not served on him or that the Record of Appeal served on him does not contain the Notice of Appeal. If it does, then in my respectful view, the Notice of Appeal has been communicated to him. PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellants against the judgment of Rivers State High Court delivered on 5/10/2015 in Suit No. OHC/55/2013.

The Claimants are the Respondents in this appeal. The Defendants at the lower Court are now the Appellants.

The Claimants had instituted an action against the Defendants claiming as per paragraph 20 of their Statement of Claim thus:

(i) A Declaration that the committee headed by the 1st Defendant was constituted in bad faith and that they are usurpers of the functions of the Claimants as contact men for Mgbede 16 Location.
(ii) An Order or perpetual injunction restraining the 1st Defendant from further interfering with the functions of the Claimants as contact-men for Mgbede 16 Location.
(iii) An Order of Court directing or compelling the 2nd Defendant to transact with, and negotiate with the Claimants who are the accredited contact-men for Megbede 16 Location.
(iv) An Order of Court extending the tenure of the Claimants by the number of months their functions were hijacked by the 1st Defendant

commencing from 16th January, 2013.
(v) N5,000,000.00 (Five Million Naira) only general damages.

Parties filed and exchanged pleadings. The learned trial Judge after hearing the parties found (inter alia) as follows:

(a) It is hereby declared that the 14-man Committee headed by the Defendant as representing the landlords and land owners of Mgbede 16 Location was constituted in bad faith. The Committee usurped the functions and duties of the Claimants as the contact-men.
(b) An order of perpetual injunction is hereby issued restraining the Defendant and his 14-man Committee from further interfering with the functions of the Claimants and or parading and holding themselves out as the representatives of the landlord/land owning families of Mgbede 16 Location forthwith; and
(c) The sum of N2,000,000.00 (Two Million Naira) is awarded to the Claimants against the Defendant and his 14-man Committee as general damages for wrongly interfering and disturbing the functions and duties of the Claimants as contact-men of the Mgbede 16 Location.
(d) Further to the above a cost of N50,000.00 (Fifty Thousand Naira) is awarded to the Claimants

against the Defendants for this Suit.

Dissatisfied with the above decision the Appellants filed an appeal against it on 20/10/2015.

Soon after transmission of Record of Appeal to this Court, parties filed and exchanged Briefs of Argument.

SUBMISSIONS OF COUNSEL
The Appellant’s Brief of Argument is dated 17th day of July, 2017 and filed 19th day of July. 2017. From the five (5) Grounds of Appeal, learned Appellant’s Counsel distilled four (4) issues for determination to wit:
(1) Whether the Writ of Summons as filed by Claimants met the condition precedent for a valid Writ to have enabled the Court to assume jurisdiction to conduct the proceedings? (Ground 1).
(2) Whether recommendation and appointment means the same thing in English interpretation in the context of the appointment of the contact men thereby making Appellant to interfere, usurp or perform the duties and functions of the Respondents? (Ground 2).
(3) Whether the Respondents worked with the Appellant in the 14-man Committee and whether Appellant interfered, usurped or performed any of the duties or functions of the Respondents as in Exhibit E? Grounds 3

and 4).
(4) Whether the judgment of the lower Court was not perverse considering that there was no evidence of Appellant performing any of the duties or functions of Respondents as per their appointment as contact men? (Ground 5).

ISSUE NO. 1
Whether the writ of summons as filed by Claimants met the condition precedent for a valid writ to have enabled the Court to assume jurisdiction to conduct the proceedings?
Learned Counsel to the Appellant submitted that jurisdiction is the strength and bedrock of any Court to conduct any proceedings. Referred to Obiuweubi vs. CBN (2011) 2-3 SC (pt. 1) 46 at 52 ratio 5. That it is also trite law that absence of jurisdiction in a Court will render any proceedings, no matter how well conducted a nullity and of no effect. Referred to Bronik Motors Ltd & Anor vs. Wema Bank Ltd (1983) 1 SCNLR 296. That the issue of jurisdiction can be raised at any point of the proceeding. Referred to S.C.C. Nig Ltd vs. Elemadu (2005) 7 NWLR (pt. 923) 28 at 81 paras. E-F. That for a Court to be competent to assume jurisdiction over any proceedings, there are mandatory conditions precedent that must be met. Referred to

Madukolu vs. Nkemdilim (1962) ALL NLR 589.

It is the argument of learned Counsel that by the provision of Order 3 Rule 3 of the Rivers State High Court (Civil Procedure) Rules, 2010, the format for initiating a suit by Writ of Summons is laid down and its compliance is mandatory. Referred to FORM 1 Order 3 Rule 3 of the Rivers State High Court (Civil Procedure) Rules, 2010. Submitted that the word “shall” in the context of the said Rules is mandatory. Referred to the case of Lt. Gen. I. R. Bamaiyi (rtd) vs. A.G Federation & Ors (2001) FWLR (pt. 64) 344 at 368 (SC).

Learned Counsel drew the Court’s attention to the Writ of Summons copied at page 1 of the record and submitted that the format for the writ is copiously provided for by Order 3 Rule 3 of the Rivers State High Court (Civil Procedure) Rules, 2010 in FORM 1 and compliance is mandatory.

Submitted further that at all time material in initiating a suit, it is between Claimant as suing and Defendant as defending. Contended that “AB” as symbolically expressed in the format of the writ stands for the Claimant suing and not the Defendant suing himself.

Submitted further that for all intent and purpose, the Defendant has no intention to sue himself. That the Appellant sought the leave of the Court below to withdraw the suit but to no avail. That it is trite law that a party cannot sue himself as one party cannot be both Plaintiff and Defendant at the same time and neither can a party make a claim or allege wrong against himself. Cited in aid the authority of Chief L. U. Okeahialam & Anor vs. Nze U. Nwamara & Ors (2003) 7 SC 145 at 152.

Appellant’s learned Counsel further submitted that since a Defendant cannot sue himself, the writ is therefore incurably defective rendering the process incompetent. That where a Court process is incompetent, it robbed the Court of jurisdiction and the appropriate order is to strike out the suit. Referred to Manson vs. H.E.S (2007) 2 NWLR (pt. 1018); Ononye vs. Chukwuma (2005) 7 NWLR (pt. 958) 9P at 114-115; Auto Import Export vs. Adebayo & Ors (2002) 18 NWLR (pt. 799) 554, 582, D.E.N.R. Ltd vs. Trans Int’L Bank ltd (supra) at 429. That where the Court lacks jurisdiction to entertain a matter for the Claimant’s to fulfill a condition

precedent, it is incumbent for the Court to strike out such matter. Referring to Adigun vs. Osaka (2003) 5 NWLR (pt. 812) at 95, Eze vs. Okechukwu (2002) 12 SC (pt. 11) 103; E.B.N. vs. Halilco (Nig) Ltd (2006) 1, NWLR (pt. 980) 568 at 584.

Submitted that any irregularity or defect that touches on the jurisdiction of the Court cannot be waived by acquiescence. Referred to B. B. Apugo & Sons Ltd vs. O.H.M.B. (2005) 17 NWLR (pt. 54) 305 at 335 para. H. That it is trite law that where a condition precedent for the doing of an act is provided, noncompliance means not doing at all. That rules of Court are meant to be obeyed. Referred to Ibodo vs. Enarofia & Ors (1980) 5-7 S.C. (REPRINT) 29 at 39 per Justice Aniagolu, JSC.

Urged this Court to answer issue one in the negative and hold that the Court below lacked the jurisdiction to entertain the suit as same was incompetent.

ISSUE TWO
Whether recommendation and appointment means the same thing in English interpretation in the context of the appointment of the contact men thereby making Appellant to interfere, usurp or perform the duties and functions of the Respondents? (Ground 2).
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Appellant’s Counsel contended that re-commendation and appointment does not mean one and the same in English interpretation as erroneously held by the learned trial Judge which led him to misdirection and miscarriage of Justice. Referred to page 107 of the record. That in the New Webster Dictionary of English Language, recommendation is defined as: the act of recommending a person or something; it is taken from recommend which means to write or speak in favour of someone, something to another person as deserving employment, patronage. Whereas appointment is defined as “a selecting for an officer or position”. That by Exhibit ‘E’ copied at page 122 of the record, the company by the recommendation appointed the Respondents “contact men” and issued them the said contract agreement embodied in Exhibit ‘E’

Counsel submitted that the maxim of res ipsa loquito comes to play in the circumstance. That it is trite that facts which the knowledge of is not reasonably open to question and can be gleaned by reference to document shall not be subject to proof. Referred to Section 124 (1) (b) of the Evidence Act, 2011

That items 111 and 94 of Exhibit ‘E’ spelt out the duties and functions of the Respondent. Referred to Royal Ade Nig Ltd & Anor vs. Nat. Oil & Chemical Marketing Co. Plc (2004) ALL FWLR (pt. 213) 1769 at 1773.

It is the argument of the Appellant’s Counsel that it is not in doubt that the same elders of families that recommended the Respondents for appointment as contact men for an existing location 16 also nominated or presented the 14-man Committee to work with the Respondents in respect of the new acquisition made by NAOC Ltd, which acquisition affected new families not originally represented by the Respondents in their existing contract as contact men. That Exhibit ‘E’ also show that the appointment for the job from the company. That it is on record that the 14-man Committee were neither recommended as contactmen nor where they were so appointed, their duties were never the same with that of the Appellant. That it is trite that once evidence of the case was not properly evaluated by the trial Court, the appellate Court will disturb the said facts in order for justice to prevail. Referred to

China Geo Engr. Co (CCG) vs. Simon Nambativ (2001) FWLR (pt. 44) 466 at Engr Co (CCG) vs. Archibong (2001) FWLR (pt. 58) 1032S at 1052-31A.

Learned Counsel further argued that it is clear that by the nomination of the 14-man Committee, they were to work with the Respondents as a team specifically for the new acquisition or extension of the location by the company. By the tenor of Exhibit ‘E’ the 14-man Committee has nothing to do with the duties and functions of the Respondents. That it is also on record that the 1st Respondent admitted meeting with the members of the said Committee during negotiation showing they are working together as a team. Referred to page 68 of the record. Submitted that facts admitted need no proof. Cited Section 123 of the Evidence Act (supra).

Urged the Court to hold that the erroneous understanding of the lower Court in the meaning of recommendation and appointment as related to the “contact men” led to misdirection and miscarriage of justice.
ISSUE NO. 3
Whether the Respondents worked with the Appellant in the 14-man Committee and whether Appellant interfered, usurped or performed any of the

duties or functions of the Respondents as in Exhibit E? Grounds 3 and 4).

Under this issue, learned counsel argued that the lower Court on pages 104-105 of the record analyzed what he considered to be the issues/facts that caused the disagreement between the parties. That the view of the lower Court that the 14-man Committee appointed solely for the purpose of the newly acquired land area for the purpose of expanding the existing location 16 was an interference with the duties and functions of the Respondents already appointed as “contact men” was erroneous and led to a miscarriage of justice.

Counsel submitted that it is contended that it is not the duty of the appellate Court to disturb the finding of facts by the lower Court but have the power to find out if the trial Court has applied correct procedure to arrive at the decision reached. Referred to Alhaji Dahiru & Anor vs. Alhaji Kamale (2001) FWLR (pt. 62) 1855 at 1862 CA. That it is also trite that where the decision of the lower Court is not supported by fact during the proceedings then the appellate Court will intervene, because when trial Court fails on its appraisal of evidence the

appellate Court is in good position to do same. Referred to Agboola Ayodele & Ors vs. Boneh Overseas Nig Ltd (1986) 3 CA (pt. 1) 85.

It is further submitted on behalf of the Appellant that the Respondents were recommended by their families to N.A.O.C Ltd for appointment as contact men in respect of Location 16 and they were so appointed and contract agreement also issued. Referred to Exhibit ‘E” copied at page 129 of the record. Argued that it is undisputed fact that the Respondents’ duties and functions are defined in Exhibit ‘E’. That the 14-man Committee nominated on 16th January, 2013 when the company made new land requisition assignment is to negotiate compensation, clearing the new site and distributing whatever proceeds to the various family heads involved from the area designated Mgbede Location 16. Referred to Exhibit ‘B’ at page 124 of the record.

This Honourable Court is urged to decide from the facts presented whether there was any interference with the duties and functions of the Respondents to warrant the judgment of the lower Court. That for the avoidance of doubt, the duties and functions

of the Respondents are clearly spelt out in Exhibit ‘E’ on page 2 of the contract items (1) and (4) copied at pages 130 and 135 of the record. Argued further that the duties and functions did not contemplate the acquisition of new areas and there is no evidence on record that the 14-man Committee appointed solely for the purpose of the new acquisition performed any of these duties or functions or took any benefit thereform.

Learned Counsel further referred to page 67 of the record where the 1st Respondent made it clear and admitted that the Appellant did not collect anything from him in respect of the contract as a contact man. That facts admitted need no further proof. Referred to Aadi vs. Achor (supra). Learned Counsel again referred to further admissions of the Respondents and wondered how the learned trial Judge came to the conclusion that the duties and functions of the Respondents were interpreted without granting their relief (iv) being their main relief?

Urged Court to hold that the facts as played out did not support the Respondents’ case at the lower Court that the Appellant interfered, usurped or performed any of the

duties and functions of the Respondents to warrant the judgment entered in their favour.

ISSUE NO. 4
Whether the judgment of the lower Court was not perverse considering that there was no evidence of Appellant performing any of the duties or functions of Respondents as per their appointment as contact men? (Ground 5).

It is the submission of learned Counsel that in civil cases, the law is he who asserts must prove. Referred to Section 135 of the Evidence Act, 2011. That the crux of Respondents’ case at the Court below is that of interference by the Appellant on their duties and functions as contactmen to Nigeria Agip Oil Co. Ltd, which said duties and functions are spelt out in their agreement (Exhibit ‘E’). That the 1st Respondent admitted in evidence that whatever entitlement they deserve as contact men was not tampered with by the Appellant or any person at all. Referred to pages 67 and 70 of the record.

Learned Counsel argued that the Respondents did not show anything from Exhibit ‘E’ that makes the formation of the 14-man Committee as illegal. Argued further that it is not in doubt that its failure to

prove this interference that made the Court below to refuse relief (iv) of the Respondents which is more or less their main claim. That it is on record that the recommendation and appointment of the Respondents as contact men is strictly the NAOC Ltd as shown in Exhibit ‘E’ and that it has nothing to do with Rojel Nig Ltd that handle the new acquisition. That it is trite law that if facts are embodied in document, then the document should speak for itself. Cited the case ofLarmie vs. DPMS Ltd (2005) 18 NWLR (pt. 958) 438 at 470, paras. E-H.

It was the further submission of learned Counsel that items (1) and (4) of Exhibit ‘E’ at page 130 of the record that the scope of work and area of operations by the Respondents in their duties and functions as contact men are well defined and that the Appellant never interfered with same. That it is the law that a witness cannot give evidence to vary, add or remove from the contentment of a document. Referred to Larmie vs. DPMS Ltd (supra). That where the evidence in a proceeding does not support the evaluation of facts made by the Court in support of its judgment or where Court draws

erroneous conclusion from accepted evidence the judgment is perverse. Urged this Court to so hold. Referred to Chief Obiekwe vs. Chief Obi & Ors (2006) FWLR (pt. 315) 152 at 167.

Counsel further submitted that this Court has power to review evidence led before the trial Court as held in Towoeni vs. Towoeni (2002) FWLR (pt. 122) 170 at 181-2 CA. That where the Court below shut its eyes or ignored the evidence led before it or draw inference wrongly from facts not flowing from the evidence adduced, such decision shall be considered perverse. Referred to Ikem vs. Nezianya (2002) FWLR (pt. 99) 1088 at 1099, Edwin Chukudulue Udengwu vs. Simon Uzuegbu & Ors (2003) 7 SC 04 at 69. That evidence improperly evaluated or summarized is considered perverse. Referred to Igbinovia vs. Agboifo (2002) FWLR (pt. 103) 505 at 516, Okonyia vs. Ikenga (2001) FWLR (pt. 53) 155 at 178-9 CA, Richard Igago vs. State (1999) 10-12 SC 84.

Finally, learned Counsel to the Appellant urged this Court on the authority of Okeniye & Ors vs. Mogaji & Ors (2002) FWLR (pt. 84) 113 at 125 CA, to intervene and re-evaluate the evidence led at the trial Court and allow the appeal

of the Appellant.

RESPONDENTS’ BRIEF OF ARGUMENT
The Respondents’ Brief of Argument is dated 12th day of August, 2019 and filed on the 14th day of August, 2019. In arguing this appeal, learned Counsel to the Respondents raised a Notice of Preliminary Objection praying this Court to dismiss the appeal for want of service of the Notice of Appeal on the Respondents and summoning them to appear before the Registrar of the lower Court for settlement of records.

Learned Counsel in arguing the Notice of Preliminary objection formulated a sole issue for determination to wit:
Whether the non-service of the Notice of Appeal on the Respondents and non-summoning of the Respondents of record do not vitiate this appeal?

The law is trite learned Counsel argued, that processes of Court and particulars originating processes such as the Notice of Appeal has to be served personally on parties affected and can only be served by substituted means with the leave of Court. That the Appellant deliberately refused to serve the Notice of Appeal which is the final cord of this appeal on the Respondents as there is nothing to show on the Record of

Appeal that such was served. That the service of process on a party is so fundamental that the absence of it will affect the jurisdiction of the Court and render a Court’s proceedings a nullity.

It is the argument of the Respondents that the presence of a party in Court does not necessarily means he has been served. Referred to Olorunyolemi vs. Akhagbe (2010) 41 NSCQR 342 at 356-357, paras. H-C. Submitted that in the instant case, the Court has been divested of jurisdiction to hear and determine the matter for the refusal of the Appellant to serve the Notice of Appeal on the Respondents. That if for any reason, the Respondents were unable to be served personally, the Appellant did not make any effort to serve them by substituted means. That the Appellant has therefore denied the Court the jurisdiction to hear his appeal.

Learned Counsel submitted further that service of originating process is a condition precedent to the competency of a Court to assume jurisdiction. Referred to Agip (Nig) Ltevs Agip Petroli International (2010) 42 NSCOR 167 at 205, paras. D-G. That since the condition precedent which is service of the Notice of Appeal has not

been complied with, the Court is urged to strike out the appeal. That the Rules of this Court has provided that Notice of Appeal has to be served personally and also that parties be summoned for settlement of records of appeal but the Appellant did not see any reason why he should serve the Notice of Appeal on the Respondents and also cause the Registrar of the Court below to summon the parties for settlement of records. That non-compliance with same is fundamental flaw which is basically incurable. That Rules of Court are meant to be obeyed. Called in aid the case of Imegwu vs. Okolocha (2013) 54 NSCQR (pt. 3) 1395 at 1421 paras. C-D.

Submitted further that Notice of Appeal being the originating process must be served personally on the Respondents unless otherwise ordered by Court. That non-service of same on the Respondents renders the appeal incompetent and liable to be struck out. Relied on Ihedioha vs. Okorocha (2015) 64 NSCQR (pt. 1) 285 at 369, paras. A-C. That non-service of the Notice of Appeal on the Respondent is a breach of a condition precedent and that non-compliance with same shall render the Appeal to be dismissed and not struck out.

Referred to and relied on Bukoye vs. Adeyemo (2016) 67 NSCQR (pt. 1) 432 at 460, paras. D-H.

Learned Counsel formulated the following issues for determination of the appeal on its merit thus:
(a) Whether the command in the Writ of Summons misled the Appellant or caused him miscarriage of justice? (Ground 1)
(b) Whether the constitution of the Appellant into 14-man Committee was properly considering the practice of families and whether the committee did not usurp the functions of the Respondents as the contact men/representatives of the families? Grounds 2, 3 and 4).
(c) Whether the judgment of the learned trial Judge was perverse considering the evidence before the Court? (Ground 5).

ISSUE ONE
Whether the command in the writ of summons misled the Appellant or caused him miscarriage of justice? (Ground 1).

It is the argument of learned Counsel to the Respondents that all the arguments canvassed by the Appellant’s Counsel under his issue one are but mere misconceptions. That the error in the command in the writ of summons is a mere irregularity which would not in any manner whatsoever affect the validity of the

writ as the trial Judge has the power to give directive under Order 5 Rule 1(1) of the Rivers State High Court (Civil Procedure) Rules, 2010. Submitted that the learned trial Judge regularized the irregularity. On the effect of irregularity, learned Counsel called in aid the case of Anyanwoko vs. Okoye (2010) 41 NSCQR (pt. 1) 46 at 64-65, paras G-B.

Counsel submitted that the position in the case cited above applies to the instant appeal. That the ground and issues if not worth the trouble of the Court. Submitted further that the Appellant was not in any way misled by the error in the command of the writ of summons. That all through the period the matter was conducted before the learned trial Judge, the Appellant had always appeared as Defendant and was so properly recorded as such. That the Appellant’s learned Counsel was never misled as he filed his defence. That he never conducted the matter both as Claimant and Defendant but purely as Defendant. That his argument at this stage is only a mere technicality which has died and has been buried long time ago and that Courts are enjoined not to do technical justice, but substantial justice. Referred to

the case of Abubakar vs. Yar’Adua (2008) 33 NSCQR 650 at 700-701, paras. G-A.

It is the further submission of learned Respondents’ Counsel that the learned trial Judge can amend the title of the writ in such circumstances if the case so demand. Relied on Kate Enterprises Limited vs. Daewoo Nigeria Limited (1985) 2 NWLR (pt. 5) 116. That the justice of the case demanded that the command in the writ be amended which was done by the learned trial Judge. That such cannot be flawed as it is the postulation of the Supreme Court. That for the Appellant to succeed on this point which he has woefully failed to do, he must prove how the error in the command caused him miscarriage of justice. That assuming without conceding that the leaned trial Judge was in error on this point, learned Counsel further submitted that it is not every error which occasioned a miscarriage of justice that can lead to allowing an appeal. Relied on the case of Adole vs. Gwar (2008) 34 NSCQR 543 at 561, paras. C-D.
Urged that this issue should be resolved against the Appellant and in favour of the Respondents.

ISSUE TWO AND THREE
(a) Whether the constitution of the Appellant into 14-man Committee was properly considering the practice of families and whether the committee did not usurp the functions of the Respondents as the contact men/representatives of the families?
(b) Whether the judgment of the learned trial Judge was perverse considering the evidence before the Court?

Arguing two issues together learned Counsel to the Respondents referred to page 5 of the Record of Appeal where the functions of the contact men of any family are spelt out. That it has to be clarified in the first instance that the Respondents being contact men of the families was not denied by the Appellant. That this being admitted need no further proof. Atanda vs. Iliasu (2012) 52 NSCQR 911 at 926-927, paras G-A. That the Appellant’s contention that he did not usurp the functions of the Respondent is untenable as it is clear from the evidence before the Court that the Appellant and his Committee members collected monies meant for families from the company operating in the location.

Counsel submitted that the judgment of the learned trial Judge cannot be faulted as same accords with the law pursuant to the evidence

before him. Referred to the evidence of CW2 copied at pages 24 and 25 of the record and submitted further that the evidence of CW2 was not in any manner whatsoever contradicted and the Court is bound to accept same and act on it. Relied on the authority of the Nigeria Army vs. Yakubu (2012) 53 NSCQR (pt. 2) 338 at 351, paras. E-H.

This Honourable Court is referred to pages 47, 7 and 71 of the record and submitted that the condition of the Defendant’s sole witness is a contradiction. That evidence contradicts another when it says that opposite of what the other said in a material point. Cited and relied on Odunlami vs. Nigerian Navy (2013) 54 NSCQR (pt. 3) 1469 at 1498, paras A-D. That DW1 fantastically contradicted himself thereby rendering his evidence unreliable. That the learned trial Judge was right in law to have rejected the evidence in support of the Appellant’s case because it is trite that where there are material contradictions as in this case as to who really set up the 14-man Committee, the Court is enjoined to reject the entire evidence and not to pick and choose. Relied on Kayili vs. Yilbuk (2015) 61 NSCQR (pt. 1) 359 at 499-459,

paras. F-A.

On the argument and submissions of the Appellant’s learned counsel distinction between ‘nominating’ and ‘appointing’ anybody as contact man for the family, Respondents’ Counsel contended that the Appellant forgot to realize that he is from the same jurisdiction and knows that no company can ever reject anybody who is nominated and sent by the landlord family. That the document the company issued to such person is only a description of the scope of work and nothing more. That the learned trial Judge dutifully evaluated the evidence before him to arrive at the just and equitable conclusion he did. That the law is trite that when the trial Court has properly evaluated the evidence before him as in this case, the Court of Appeal has no business to substitute its own views. Relied on Nagogo vs. Congress for Political Change (2012) 51 NSCQR 485 at 516, paras. A-F.
Finally, Counsel contended that the learned trial Judge has taken judicial notice of the practice of Landlord Families and Communities within the jurisdiction to nominate and appoint contact men who will represent and interface on their behalf

before the oil and gas companies and their contractors in order to get from the companies what is due the Families or Communities. That the Appellant admitted that at the material time the Respondents were the contact men for the Mgbede 16 Location as nominated by the families. That it was a clear admission of usurpation of the functions of the Respondents as contact men.

That these issues should be resolved against the Appellant and in favour of the Respondents.

APPELLANT’S REPLY BRIEF
The Appellant’s Reply Brief is dated 19th day of August, 2019 and filed on 20th August, 2019.

In response to the Preliminary Objection raised and argued in the Respondents’ Brief, learned Counsel to the Appellants contended that it there was non summoning of Respondents for settlement of records, the Respondents should have filed a deposition on Oath stating that they were not served with the Notice of Appeal and summons for settlement of records. That the 1st Respondent contended in his paragraph 5 of the affidavit in support of their motion to dismiss this appeal which was withdrawn and struck out on 15/7/2019 that he was part of the

settlement of record. That in the absence of an affidavit sworn to by the Respondents stating the facts of non-service of Notice of Settlement, this Honourable Court is urged to discountenance the Preliminary Objection.

Learned Appellant’s Counsel rejected the Respondents’ contention that the Respondents were not served Notice of Appeal but however, conceded that the Notice of Appeal was served alongside the Record of Appeal. That to buttress the fact that the Respondents have knowledge of the said Notice of Appeal; the Respondents exhibited same in support of their motion for dismissal of this Appeal which was withdrawn and struck out on 15/7/2014. Learned Counsel called in aid Order 2 Rule 1(a) and (b) and submitted that the Respondents cannot complain of non-service of the Notice of Appeal or anything to show that there was service with regard to the provision of Order 2 Rule 1(a). That the Respondents in their Affidavit in support of their Motion to dismiss this Appeal filed on 15/7/2017 and withdrawn and struck out on the same date averred in paragraph 3 thereof that the Appellant soon after the Judgment filed Notice of Appeal on 19th day

of October, 2015.

Learned Counsel submitted that the Respondents cannot state in one breathe that they have not been served with the Notice of Appeal and in another breathe be stating that they have the knowledge that after the judgment, the Appellant filed Notice of Appeal. That the non-inclusion of the endorsement and return copy was an error of omission. That a party is not allowed to approbate and reprobate at the same time on an issue. Refer Yusuf vs. Obasanjo (2005) 18 NWLR (pt. 956) 96 at 165-167. Urged Court to discountenance the Respondent’s Preliminary Objection in its entirety.

In response to the Respondents’ argument on issue No. 1 as argued by their learned Counsel to the effect that the error is a mere irregularity and did not cause the Appellant any miscarriage of justice, it is submitted that when an irregularity touches on the competence of a suit at its primary stage of institution or initiation then jurisdiction is directly affected and cannot be activated to enable Court conduct the proceedings. Referred to Madukolu vs Nkemdilim (supra). That in every proper suit before the Court, one is either the Claimant,

Defendant or Counter Claimant and no more. That there is no hybrid position where the processes will present a party as Defendant and as Claimant suing himself, again as Defendant at the same time. That it is an error which affects the activation of the trial Court’s jurisdiction. That this position was acknowledged by the learned trial Judge at page 106 of the Record of Appeal but he refused, failed or neglected to so decline jurisdiction.

Submitted that an incompetent process remains without legal value no matter how long it remains. Referred to Manson vs. H. E. S. Ltd (2007) 2 NWLR (pt. 1018) 211 at 245, para. E. Learned Counsel argued that the primary stage of instituting a suit has nothing to do with the justice or miscarriage of justice of the suit but to do with the issue of competence, regularity and compliance with all necessary steps required in initiating a proper suit thereby giving same competence to invoke the jurisdiction of the trial Court. Referred to Madukolu vs Nkemdilim (supra).That the learned Counsel to the Respondents’ reliance on Order 5 Rule 1 is of no moment as there is nothing in the Record of Appeal showing that the

trial Court ordered any amendment or correction of the incurably defective writ. That the law is trite that where irregularity touches on jurisdiction, it cannot be waived. Referred to B. B. Apugo & Sons Ltd vs. O. H. M. B. (2005) 17 NWLR (pt. 954) 305 at 335, para. H.

In response to the Respondent’s’ argument and submissions on issues Nos. 2 and 3 wherein their learned Counsel labored vigorously to prove that the judgment was not perverse and relied on purported contradictions in the evidence of DW1, learned Counsel submitted that it is the law that minor contradictions do not affect the evidence of a witness. Relied on the case of Usiobaifo & Anor vs. Usiobaifo & Anor (2005) 1 SC (pt. 11) 60 at 72. Furthermore, learned Counsel referred to pages 67-68 of the record wherein the 1st Respondent admitted that no person tampered or interfered with his contract as contact man with NAOC. Submitted that fact admitted need no further proof. That where the evidence of the adverse party supports the case of his opponent then, the opponent shall place reliance on same. Referred further to pages 68 and 70 of the record in respect of the

Claimants’ witness, CW2.

RULING ON PRELIMINARY OBJECTION

I have deeply considered the arguments canvassed on both sides on this Preliminary Objection.

I must state right away that this objection carries no weight. It is devoid of merit.

then in my respectful view, the Notice of Appeal has been communicated to him.
On 5/8/2019, the Record of Appeal in this Appeal was deemed properly complied, transmitted and served on the Respondents by this Court. This Order of Court has neither been challenged nor set aside.
A Record of Appeal must contain every document relevant to the Appeal. See OLORUNYOLEMI & ANOR vs. AKHAGBE (supra). If the Record of Appeal served on the Respondents are incomplete, it is for the Respondents to complain about it. Since they have not done so, I hold that the Notice of Appeal was in the Record of Appeal served on the Respondents and its contents were so communicated to them. I overrule this Preliminary Objection. Therefore, it is dismissed accordingly.

RESOLUTION OF ISSUES
E. F. Nwachukwu, learned Counsel for the Appellant proposed 4 issues for determination as follows:
(1) Whether the Writ of Summons as filed by Claimants met the condition precedent for a valid writ to have enabled the Court to assume jurisdiction to conduct the proceedings?
(2) Whether recommendation and appointment means the same thing in English interpretation in

the context of the appointment of the contact men thereby making Appellant to interfere, usurp or perform the duties and functions of the Respondents?
(3) Whether the Respondents worked with the Appellant in the 14-man Committee and whether Appellant interfered, usurped or performed any of the duties or functions of the Respondents as in Exhibit E?
(4) Whether the judgment of the lower Court was not perverse considering that there was no evidence of Appellant performing any of the duties or functions of Respondents as per their appointment as contact men?

On the other hand, learned Counsel for Respondents, E. Ordu, presented 3 issues for determination as follows:
(a) Whether the command in the Writ of Summons misled the Appellant or caused him miscarriage of justice?
(b) Whether the constitution of the Appellant into a 14-man Committee was proper considering the practice of the families and whether the Committee did not usurp the functions of the Respondents as the contact men/representatives of the families?
(c) Whether the judgment of the learned trial Judge was perverse considering the evidence before the Court?

I have deeply considered the issues formulated for determination as well as the contents of the record. I am of the respectful view that the issues proposed for determination by learned Counsel for the Respondents are wide and apposite enough for the just determination of this appeal. I therefore adopt them in this judgment.

ISSUE ONE
Whether the command in the writ of summons misled the Appellant or caused him miscarriage of justice?

The Claimants at the lower Court inserted his name in the place where the Defendants’ names ought to have been in the Writ of Summons.
The Writ of Summons therefore read thus:
“To Mr. Alabbanus Alele of Aggah Town Onelga Rivers State and Rojel Nigeria Ltd of No. 234 Aba Road, Port Harcourt.
You are hereby commanded that within forty two days after the service of this writ on you, inclusive of the day of such service do you cause an appearance to be entered for you in an action at the Suit of Mr. Alabanus Alele of Aggah Town in the Ogba/Egbema/Ngoni Local Government Area of Rivers State and Rojel Nigeria Ltd of No. 234 Aba Road, Port Harcourt.”
The contention of the Appellants was

that since a Defendant could not sue himself, the writ of summons was incompetent and the lower Court was deprived of jurisdiction.
Is the above a mere procedural irregularity or a serious substantive lapse depriving the Court of jurisdiction? Where an irregularity is substantive in nature it renders a process incompetent but when it is merely procedural the Court will set out to do justice and not take a decision that will defeat it. See ODOM & ORS VS. PDP & ORS (2015) 6 NWLR (pt. 1455) 527.
See also Order 5 Rule 1 (1) of Rivers State High Court (Civil Procedure) Rules, 2010 where the trial Judge is allowed to treat it as mere irregularity, which may not nullify the steps taken in the proceedings.
The statement of M. D. MUHAMMAD, JSC on how a Court should approach an irregularity is quite apposite. His Lordship said:
“… whenever it is possible to determine a case on the merit, the Court does so by refusing to cling to technicalities. The Court would rather give an aggrieved party the opportunity of being heard. See DR. OKONJO VS. MUDIAGA ODEJE & ORS (1985) 10 S.C. 267 and JOSEPH AFOLABI & ORS VS. JOHN ADEKUNLE & ORS.

(1983) 8 S.C. 98.”
This is the approach the learned trial Judge adopted when his Lordship held thus:
“A striking out will not be ordered. This Court is not in any way swayed by Counsel’s argument in the absence of a case of miscarriage of justice.”
Indeed the Appellant cannot claim to have suffered any injustice by the irregularity. He was in no way deceived as to who the Plaintiff/Claimant was. Besides he delayed his objection and took several fresh steps after his discovery of the irregularity. Objection to irregularities like this must be timeously made. See Order 5 Rule 2(1) of the Rivers State High Court, Civil Procedure Rules, 2010, which reads as follows:
“(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
This was an irregularity on the writ of summons, the originating process. After the Defendant was served, he filed 1st Defendant’s Statement of Defence, Written Deposition and

Motion on Notice for leave to call additional witness and other processes without applying to set aside the proceedings for the said irregularity. It was too late in the day to raise it at the address stage.
I resolve this issue against the Appellant in the Circumstance.

ISSUE TWO
Whether the constitution of the Appellant into a fourteen man committee was proper considering the practice of the families and whether the committee did not usurp the functions of the Respondents as the contact men/representatives of the families?

I have deeply considered the submissions of learned Counsel on both sides on this issue. Both parties accepted that the fourteen man Committee should be representatives of the Mgbede 16 Location.

The contention of the Claimants however is that the members of the said Committee i.e. the Defendants, were illegal and that they foisted themselves on Mgbede 16 Location. To rebut this, the Defendants tendered Exhibit B purportedly from landlord families of Mgbede 16, and Exhibit F dated 9/5/2013. Since the Defendants did not contest that the Claimants were representatives of Mgbede location but their representation of

the Defendants was being contested, one would have expected them to call representatives of the families they represented. The DW1 Chibuike James Ugorji who claimed to be from Amadikerua family did not acquit himself well. He did not remember the name of the head of Iso family. He also said, the head of Oshishioma family Elder Friday Obi did not sign Exhibit B which purportedly nominated the 14-man Committee.

What is more, the duties of the Claimants as defined by CW1, Charles Amutadi (see page 10 of record) were not controverted by the Defendants. The duties not having been challenged by the Defendants are deemed accepted and true. See KOPEK CONSTRUCTION LTD VS. EKISOLA (2010) 3 NWLR PART 1182 pg. 618.
The contention of the Defendants that they were set up as they were set up is as a result of the new acquisition at the Mgbede 16 Location existed in my respectful view in the imagination of the Defendants as there is no document tendered in support of this.

In the light of the above I find the judgment of the lower Court unimpeachable and have no option but to resolve this issue in favour of the Respondents. It seems clear that the Appellants

usurped the duties of the Respondents.

ISSUE THREE
Whether the judgment of the learned trial Judge was perverse considering the evidence before the Court?

I have earlier in the judgment referred to several aspects of the evidence and adduced before the learned trial Judge which lent credence to his Lordship’s findings.

A judgment can be said to be perverse when it runs counter to the evidence and pleadings or when the learned trial Judge took into account non-existent evidence or ignored glaring evidence on record. See ONU & ORS VS. IDU & ORS (2006) 12 NWLR (pt. 995) 657.
This cannot be said of the judgment in this appeal. I resolve this issue in view of what I had earlier stated in this judgment in favour of the Respondents.

This appeal is totally unmeritorious. It is accordingly dismissed.

The judgment of Rivers State High Court in Suit No. OHC/55/2013 delivered on 5/10/2015 is hereby affirmed with costs assessed as N250,000.00 in favour of the Respondents.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read before now the judgment just delivered by my learned brother, Awotoye, JCA. I concur with the

reasoning reached therein, to the effect that the instant appeal lacks merits. I adopt the reasoning and conclusion as mine. Consequently, the appeal is hereby dismissed by me on terms of the judgment.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, TUNDE OYEBANJI AWOTOYE, JCA before it was delivered. I agree with the reasoning and conclusion of my learned brother. The appeal lacks merit and I dismiss it. I abide by the consequential order.

Appearances:

F. NWACHUKWU, ESQ. For Appellant(s)

EKELEDINICHUKWU ORDU, ESQ. For Respondent(s)