APOLLO v. HARUNA (2022)

APOLLO v. HARUNA

(2022)LCN/16245(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/A/165/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

HAJIYA AMINA APOLLO (Substituted For Saleh Jibrin Abubakar Deceased) APPELANT(S)

And

SALEH HARUNA RESPONDENT(S)

RATIO

THE NOTICE OF APPEAL AS THE FOUNDATION OF EVERY APPEAL

It is without question that the initiating process for an appeal before an appellate Court is the notice of appeal. The notice of appeal is the foundation of every appeal. Any defect thereto will render the whole appeal incompetent and the appellate Court will lack the jurisdiction to entertain it. See First Bank Nigeria Plc. v Maiwada 2012 LPELR-9713 SC. PER AMADI, J.C.A.

WHETHER OR NOT RULES OF COURT MUST BE OBEYED

The law, no doubt is that, rules of Court should be obeyed. However, this Court consistently has held that as a general rule, non-compliance with the rules of Court (including its own Rule) is primarily an irregularity. See Enakhimion v Edo Transport Service (2006) ALL FWLR (Pt.334) 1882 at 1904-1905, again this Court held to the effect that non-compliance with the rules of Court would not be a ground for nullifying proceeding unless such non-compliance amounts to a denial of justice. In the instant case, the respondent has not shown that such non-compliance caused any denial of justice to him.

Furthermore, Section 243 (1) of the CFRN 1999 as amended provides thus:

THE POSITION OF LAW ON WHEN AN APPEAL IS SAID TO HAVE COMMENCED

It is trite law that it is only when a proper notice of appeal has been filed that an appeal is said to have commenced. No appeal can stand without proper notice of appeal to sustain it. Where a notice of appeal contains an error, or is fundamentally defective it becomes incompetent and any appeal founded on an incompetent notice is invalid, it renders any proceedings founded on it null and void. Thus the appellate Court has inherent power to strike it out for being incompetent as the issue touches on the competence of the appeal and also the jurisdiction of the Court to entertain it. See the cases of Obidoa v Marchie 2010 LPELR-4668 CA and Cornelius v Ezenwa 1996 LPELR-1632 SC. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Federal Capital Territory Abuja delivered on 9th February, 2017 by O. O. Goodluck J.

The facts of the case leading to this appeal are as follows:
The Respondent as plaintiff before the trial Court, by his amended writ of summons filed on the 24th day of February, 2010, claimed against the defendant/appellant the reliefs as contained in page 48 of the printed record of appeal as follows:
1. A declaration that SALEH JIBRIN ABUBAKAR now deceased before his death and by the transaction between him and the plaintiff had the intent and purposes divested himself or anybody claiming through or in trust for him of any beneficial or possessory interest or rights over Block 39 Flat 23 Oyo Street, Area 2 Section 1 Garki 1 Abuja.
2. A declaration that there was by the transaction between the plaintiff and the SALEH JIBRIN ABUBAKAR deceased before he died a concluded contact of sale of Block 39 Flat 23 Oyo Street Area 2 Section 1 Garki 1 Abuja to the plaintiff by SALEH JIBRIN ABUBAKAR deceased.
3. A declaration that the plaintiff is entitled to an undisturbed physical possession of and the exercise of an absolute act of ownership over Block 39 Flat 23 Oyo Street, Area 2 Section 1 Garki 1 Abuja to the exclusion of SALEH JIBRIN ABUBAKAR deceased and/or anybody claiming in trust or on behalf of SALEH JIBRIN ABUBAKAR deceased and the Defendant.
4. A declaration that the continuous occupation of Block 39 Flat 23 Oyo Street, Area 2 Section 1 Garki 1 Abuja by the defendant is unlawful, illegal and an act of trespass.
5. An order directing the defendant to quit and give up vacant possession of Block 39 flat 23 Oyo Street Area 2 Section 1 Garki 1 Abuja forthwith to the plaintiff.
6. An order compelling the defendant to pay to the plaintiff the sum of N1,800,000.00 (one million eight hundred thousand naira) being rent for the two years the defendant had been in an unlawful occupation and use of the premises.
7. N75,000.00 (Seventy Five thousand Naira) for every month defendant remains in occupation of the house from the date of this suit until defendant gives up vacant possession.
8. Cost of the suit.

To prove his case against the appellant, the respondent testified for himself as PW1 and tendered some exhibits.

At the end of the trial, the trial judge entered judgment for the plaintiff/Respondent against the Appellant.

Dissatisfied with the decision of the trial Court, the appellant filed her amended notice on 2/5/2019 but deemed filed on 11/3/2020.

Parties in accordance with the rules of this Court filed their respective briefs of argument. The Appellant’s brief of argument prepared by Kingsley O. Obue Esq., was dated 18/5/2018 and filed on 18/5/2018 but deemed filed on 11/3/2020, while the Respondent’s brief of argument prepared by Charles I. Okoye Esq., was filed 22/5/2020.

The Appellant distilled fourteen (14) issues for determination in this appeal from her sixteen (16) grounds of appeal filed as follows:
1. Whether a person can sell a property he does not yet have, and as in the instant case, whether the deceased Saleh Jibrin Abubakar validly executed a contract of sale, a Power of Attorney and deed of assignment over a property as at the time he has no ownership right over the said property. (This issue relates to ground 1 of the Amended Notice and grounds of appeal)

2. Whether considering in totality, the evidence on record before the Court, the fact the respondent never ever contested possession of the said property in the lifetime of the deceased Saleh Jibrin Abubakar does not make the ownership claim of the respondent to the said property an afterthought and concocted mischief. (This issue relates to ground 1 of the Amended Notice and grounds of appeal).

3. Whether considering in totality the evidence before this honorable Court, the learned trial judge was right to have allowed the defendant/appellant to continue to defend the action when the defendant/appellant had no direct legal interest on the subject matter and when the Court already believed that she was a trespasser ab-initio, to the property. (This issue relates to grounds 3 and 4 of the Amended Notice and grounds of appeal)
4. Whether the trial Court was right to have held that an apartment which has always and at all material time served as the family house of the deceased and where the deceased housed his aged parents and other family members was under locks and key. (This relates to ground 5 of the Amended Notice and grounds of appeal)

5. Whether the Non-Authentication, Non-Stamping, Non-Registration, Non-Execution, Non-Delivery and the absence of the Governor/FCT Minister’s consent in respect of Exhibit PW1a and Exhibit PW1HB as required by law does not make the ownership claim of the respondent spurious especially as the respondent claimed to have acquired interest on the subject matter for which Power of Attorney was given. (This relates to ground 6 of the Amended Notice and grounds of appeal).

6. Whether the trial Court ought not to have rejected the written statement on oath of the respondent and his entire evidence in the proceeding in that it runs contrary to the content of the Power of Attorney and the Deed of Assignment and other sundry documents produced by the said respondent before the trial Court. (This issue relates to ground 8 of the Amended Notice and grounds of appeal).
7. Whether the trial Court was right not to have construed the content of the deed of assignment and Power of Attorney as being spurious especially as witnesses to the transaction were not called upon to testify to the truth of the geniuses of the transaction. (This issue relates to ground 9 of the Amended Notice and grounds of appeal)
8. Whether the trial Court was right to have relied on outdated documents produced before it to have reached its decision in the case. (This issue relates to ground 10 of the Amended Notice and grounds of appeal)
9. Whether the trial Court was right to have relied on police investigation report which was issued with a view to prejudice the mind of the Court in a case that is pending before it. (This issue relates to Ground 11 of the Amended Notice and grounds of appeal)
10. Whether the trial Court was right to have held that the deceased divested himself of the ownership of the property when all documents in respect of the property still bears his name and there being no valid sale or transfer. (This issue relates to ground 12 of the Amended Notice and grounds of appeal).
11. Whether considering in totality, the evidence on record before the Court, the trial Court was right to have declared or held that the defendant/appellant was a trespasser and ordered her to relinquish possession to the respondent when the plaintiff/respondent has never been in possession or laid any claim to the property in the lifetime of the deceased Saleh Jibrin Abubakar. (This issue relates to ground 13 of the Amended Notice and grounds of appeal).
12. Whether the trial Court was right to have admitted Exhibits-PW1A (1-9) the Power of Attorney, Exhibit PW (1-2), Exhibit PW1C (1-4) the letter of offer Exhibit PW1D (1-3) the letter for the allocation of Residential Allocation. Exhibit PW1H (1-3) an unregistered land instrument, and Exhibit PW1K – the letter for handing over; Exhibit PW1E and PW1F and use them to confer title and ownership right on the respondent when these documents runs foul of salient provision of the law. (This issue relates to ground 14 of the Amended Notice and grounds of appeal).
13. Whether the trial Court had jurisdiction to hear and determine this suit considering the fact that the suit was instituted against the 1st Defendant in his name after his death and later substituted his sister who is not an Executor or Administrator of his estate. (This issue relates to Ground 15 of the Amended Notice and grounds of appeal)
14. Whether the trial and judgment of the trial Court in this suit is not a nullity and of no effect for lack of joinder of necessary parties, viz; the Executors and Administrators of the estate of Saleh Jibrin Abubakar. (This issue relates to ground 16 of the Amended Notice and grounds of appeal).

The respondent’s counsel on his part distilled 5 issues for determination as follows:
1. Whether the lower Court lacked the jurisdiction to adjudicate on suit no. FCT/HC/CV/203/09 (Ground 15 & 16)
2. Whether there was a concluded transaction between the plaintiff – donee/assignee and Saleh Jibrin Abubakar – donor/assignor on Block 39, Flat 23, Oyo Street, Section 1, Area 2 Garki Abuja vide Exhibits PW1A (1-9), PW1H (1-4) vis-a-vis Exhibit PW1K (Grounds 1, 2 & 5)
3. Whether the trial judge separated the deceased Saleh Jibrin Abubakar from the sister-defendant/respondent and was right to adjudge that Saleh Jibrin Abubakar (now deceased) divested himself beneficial and possessory interest of the house, the defendant/appellant a trespasser and should relinquish possession of the house for the plaintiff/respondent (Grounds 3, 4, 12 & 13)
4. Whether Exhibit PW1A (1-9) Power of Attorney, Deed of Conveyance are unreliable and invalidated (Grounds 6, 8 & 9)
5. Whether the learned trial judge was right to have admitted “undated documents”, “investigation report” and rightly held that the first leg of the plaintiff claim succeeds in part (Grounds 10, 11 & 14).

The respondent also in his brief of argument canvassed argument in support of his notice of preliminary objection dated 20th May, 2020.

In reaction to the said notice of preliminary objection, the appellant equally filed an appellant’s reply brief of Argument dated 22/6/2020.

I will first and foremost proceed to consider the argument that was canvassed by the respective parties to this appeal for and against the said notice of preliminary objection.

The respondent distilled five issues for the determination of the preliminary objection as follows:
1. Whether appeal no. CA/A/165/2017 is in compliance with the provision of Section 24 (1) of the 1999 CFRN as amended and Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 not competent (sic).
2. Whether the grounds one, two and seven of the amended notice and grounds of appeal are abandoned by the appellant.

3. Whether the issues formulated by the appellant for determination of appeal CA/A/165/2017 are good and supportive of grounds 1, 2, 3, 4, 5, 6, 8, 11, 12, 13 and 14 of the amended notice and grounds of appeal, more particularly issues 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12 of the appellant’s brief of argument.

4. Whether fundamentally the particulars in support of the grounds of appeal in the amended notice and grounds of appeal are arguments and conclusions, particularly on ground 1 of particular C, ground 5 particular B, ground 8 of particulars B, C, E, F, G, H and I, ground 10 of particulars B, C, D and E, ground 11 of particulars B, D, E, F, G. H and I, ground 14 particulars and ground 16 particulars C and E, thus serves no useful purposed and rendered incompetent grounds 1, 2, 3, 5, 8, 10, 11, 14 and 16 of the amended notice and grounds of appeal.
5. Whether ground 3 of the amended notice of appeal is a new issue raised by the appellant without the leave of the Court.

The appellant on his part distilled two issues for determination in his reply brief for the determination of the said preliminary objection. The said issues are as follows:

1. Whether the parties in suit FCT/HC/CV/203/09 are not the same with the parties in the appellant’s appeal no. CA/A/165/2017 before this Honorable Court.
2. Whether in the circumstances of this suit, the preliminary objection of the respondent should not be out-rightly dismissed for lacking in merit and substance.

This preliminary objection will be determined based on the five issues distilled by the respondent. However, issues 3, 4 & 5 will be taken together.

ISSUE 1.
Whether appeal no. CA/A/165/2017 is in compliance with the provision of Section 243 (1) of the 1999 CFRN as amended and Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 not competent (sic).

Learned counsel for the respondent argued that by virtue of the provision of Section 243 (1) of the 1999 CFRN as amended only a party at the suit before the trial Court can exercise right of appeal. An interested person can only appeal with the leave of Court. He referred the Court to Order 7 Rule 2 (1) of the Court of Appeal Rules 2016.

He argued that suit no. FCT/HC/CV/203/09 was predicated before the trial Court against HAJIYA AMINA APOLLO (Substituted for Saleh Jibrin Abubakar (deceased) representing herself and the estate of Saleh Jibrin Abubakar (deceased)) not against “HAJIYA AMINA APOLLO (Substituted for Saleh Jibrin Abubakar (deceased))” he referred the Court to the amended writ of summons and statement of claim at page 48-87 of the record of appeal.

He contended that “HAJIYA AMINA APOLLO (Substituted for Saleh Jibrin Abubakar (deceased))” who was not a party at the trial Court cannot initiate this appeal without prior leave of the Court.

He insisted that this appeal was not initiated in accordance with Section 243 (1) of the 1999, the Constitution of the Federal Republic of Nigeria 1999 as amended hence this Court lacked the competence and jurisdiction to entertain the appeal. He referred the Court to the case of Bello v Jallo 1999 LPELR-8122CA, Dingyadi v INEC (NO.2) (2010) 18 NWLR (Pt. 1224) 154 and Amadiume & Anor v Ibok & Ors (2006) 6 NWLR (Pt. 975) 158.

Counsel urged the Court to resolve this issue against the appellant and dismiss this appeal.

On his part, the appellant’s counsel submitted that the appellant has fully satisfied all the requirements of the provisions of Section 243 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016.

Counsel argued that there is no doubt at all, as to the identity of the appellant in this appeal as wrongly canvassed by the respondent. That the appellant herein is clearly the 2nd defendant in the trial Court, who was later substituted for the 1st defendant at the lower Court. He referred the Court to defendants’ reply on point of law at page 356 of the record of appeal.

He submitted further that this was not the first time the appellant’s name appeared in the Court’s processes the way it appeared and the respondent has never objected to it.

Counsel maintained that non adding of “representing herself and the estate of Saleh Jibrin Abubakar (deceased)” to the appellant’s name as it appears on the notice of appeal did not change the identity of the appellant and is only a typographical error which cannot affect the competency of the appeal. He urged the Court in the interest of justice to hold that it is a mere irregularity and dismiss the objection as the respondent has not shown he had been misled in any way by the said error.

He urged the Court to disregard the respondent’s submissions and hold that proper parties are before the Court in this appeal.

RESOLUTION
It is without question that the initiating process for an appeal before an appellate Court is the notice of appeal. The notice of appeal is the foundation of every appeal. Any defect thereto will render the whole appeal incompetent and the appellate Court will lack the jurisdiction to entertain it. See First Bank Nigeria Plc. v Maiwada 2012 LPELR-9713 SC.

This Court has also spoken out very strongly on the issue of defective notices of appeal and the consequences of such. Thus, to validly invoke the jurisdiction of the Court, the appellant must show that the appeal arose from the suit before the trial Court. The respondent herein contended that the Amended Notice of Appeal filed by the appellant is incompetent. It is hinged on Order 7 Rule 2 (1) and Section 243 (1) of the 1999 Constitution of the Federal of Nigeria 1999 as amended. The respondent’s contention is the failure to reflect the exact name and/or description of the parties to the appeal in the notice of appeal renders it incompetent. I will quickly say that this ground of objection is baseless because failure to state the exact description or even names of a party directly affected by the appeal in the notice of appeal is mere irregularity which cannot affect the hearing of an appeal on the merit, see the cases of;
Dyeris v Mobil Oil Nig. Plc 2009 LPELR-8914CA, Deen Mark Construction Co. Ltd v Abiola (2002) 3 NWLR (Pt. 754) 418 and Oruobu v Anekwe (1997) 5 NWLR (Pt. 506) 618.

The law, no doubt is that, rules of Court should be obeyed. However, this Court consistently has held that as a general rule, non-compliance with the rules of Court (including its own Rule) is primarily an irregularity. See Enakhimion v Edo Transport Service (2006) ALL FWLR (Pt.334) 1882 @ 1904-1905, again this Court held to the effect that non-compliance with the rules of Court would not be a ground for nullifying proceeding unless such non-compliance amounts to a denial of justice. In the instant case, the respondent has not shown that such non-compliance caused any denial of justice to him.

Furthermore, Section 243 (1) of the CFRN 1999 as amended provides thus:

“(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any power conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed…”
A perusal of the judgment of the trial Court appealed against contained at page 413 of the record of appeal reveals that the parties at the trial Court were:
“SALEH HARUNA – – PLAINTIFF
AND
HAJIYA AMINA APOLLO – – DEFENDANT
(Substituted for Saleh Jibrin Abubakar Deceased Representing herself and the estate of Saleh Jibrin Abubakar deceased)”
The parties as reflected at page 1 of the amended notice of appeal are:
“HAJIYA AMINA APOLLO APPELLANT
(Substituted for Saleh Jibrin Abubakar Deceased)
AND
SALEH HARUNA RESPONDENT.”
Now, as can be seen from the above, can it be said that the appellant herein was not a party at the trial Court because the description and/or title to her name i.e “Representing herself and the estate of Saleh Jibrin Abubakar deceased” was omitted? I do not think so. The appellant herein is clearly the 2nd defendant in the trial Court, who was later substituted for the 1st defendant at the lower Court. I so hold.
The omitted descriptions of the status of the appellant i.e “Representing herself and the estate of Saleh Jibrin Abubakar deceased” cannot in my view deny the appellant his right of appeal as provided by the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therefore, the contention of the respondent on lack of proper parties before the Court in my is a mere technicality, because he has not shown in any way that either he or this Court was misled as to who the appellant in this appeal is. The respondent’s contention that the appellant herein was not a party at the trial Court is grossly misconceived.

in view of all the above, this issue is resolved against the respondent.

ISSUE 2
Whether grounds one (1), two (2) and seven (7) of the amended notice end grounds of appeal are abandoned by the appellant.

On whether the grounds one (1), two (2) and seven (7) of the amended notice and grounds of appeal are abandoned by the Appellant.

The purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. So once a ground of appeal is clear and fully understood by the respondent, it cannot be declared incompetent. See Lagga v Sarhuna (2008) 16 NWLR (Pt. 1114) 427.

The respondent’s contention under this issue is that issues 1 & 2 of the appellant’s brief of argument are not distilled from grounds 1 & 2 and no attempt was made by the appellant to distill any issue from ground 7. Therefore, he contended that grounds 1, 2 & 7 are deemed abandoned and should be struck out as well as issue 1 and 2 of the appellant’s brief.

On his part, the appellant’s counsel submitted that the respondent’s argument on this issue is misleading. He argued that he never abandoned grounds 1 and 2 and they have been well canvassed in issues 1 and 2 of the appellant’s brief of argument.

Where no issue is formulated from any ground of appeal, the ground is deemed abandoned. In this appeal, I have carefully perused the appellant’s brief of argument deemed filed on 11/3/2020, it is my view that no issue was distilled from ground 7. Therefore, the said ground 7 is deemed abandoned and it is hereby struck out.

However, the respondent’s contention that issues 1 and 2 of the appellant’s brief of argument must relate or distilled from grounds 1 and 2 is grossly misconceived, the said grounds 1 and 2 have been well canvassed in issues 1 and 2 of the appellant’s brief of argument.

ISSUES 3, 4 & 5 (TAKEN TOGETHER)
3. Whether the issues formulated by the appellant for determination of appeal CA/A/165/2017 are good and supportive of grounds 1, 2, 3, 4, 5, 6, 8, 11, 12, 13 and 14 of the amended notice and grounds of appeal. More particularly issues 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12 of the appellant’s brief of argument.
4. Whether fundamentally the particulars in support of the grounds of appeal in the amended notice and grounds of appeal are arguments and conclusions, particularly on ground 1 of particular C. Ground 5 particular B, ground 8 of particulars B, C, E, F, G, H and I, ground 10 of particulars B, C, D and E, ground 11 of particulars B, D, E, F, G. H and I, ground 14 particulars and ground 16 particulars C and E, thus serves no useful purpose and rendered incompetent grounds 1, 2, 3, 5, 8, 10, 11, 14 and 16 of the amended notice and grounds of appeal.
5. Whether ground 3 of the amended notice of appeal is a new issue raised by the appellant without the leave of the Court.

Learned counsel for the respondent contended that issues 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 & 12 of the appellant’s brief of argument have no direct bearing with grounds 1, 2, 3, 4, 5, 6, 8, 11, 12, 13 and 14 of the amended notice and grounds of appeal thus not supportive or tied to the grounds of appeal. He urged the Court to discountenance the said issues 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 & 12 and the argument thereof. Counsel added that where a particular ground of appeal is argumentative and/or conclusive, the remaining particulars of the ground of appeal serve no useful purpose because the Court will not give effect to the ground.

He submitted that the argumentative and conclusive particulars of the appellant’s grounds of appeal are ground 1 of particular C, ground 5 particular B, ground 8 of particulars B, C, E, F, G, H and I, ground 10 of particulars B, C, D and E, ground 11 of particulars B, D, E, F, G. H and I, ground 14 particulars and ground 16 particulars C and E, thus serves no useful purpose and rendered incompetent grounds 1, 2, 3, 5, 8, 10, 11, 14 and 16 of the amended notice and grounds of appeal.

He maintained further that ground 3 of the amended notice of appeal is a new issue raised by the appellant without the leave of the Court.

He urged the Court to dismiss the appeal for being incompetent and to hold that the Court lacks the jurisdiction to entertain the appeal.

On his part, learned counsel for the appellant submitted that the respondent’s claims and arguments on issues 3, 4 and 5 are grossly misconceived.

He contended that the appellant complied with Order 7 Rule 3 of the Court of Appeal Rules, 2016 and urged the Court to disregard the respondent’s submissions.

He added that assuming without conceding that the rules of Court was not complied within the formulation of grounds of appeal, this Court is empowered by Order 21 Rules 3, 5 of its Rules 2016 to waive the non-compliance.

Learned counsel submitted further that ground 3 of the appellant’s amended notice of appeal is very competent and is an issue emanating from the judgment of the trial Court.

He urged the Court to disregard the submissions of the respondent in support of the preliminary objection, dismiss the said preliminary objection for tacking in merit and proceed to consider the appellant’s appeal.

I have carefully considered the argument of the parties under these issues. In resolving these issues, it is pertinent for me here to reproduce the entire grounds of appeal and their particulars, filed by the appellant herein for ease of reference. The said grounds of appeal and there particulars are reproduced below:
“GROUND 1
The learned trial Judge misdirected himself in law and in fact when he held that there was a concluded transaction between the plaintiff and the defendant and thereby occasioned a miscarriage of justice
PARTICULARS OF ERRORS:
a. Exhibit PW1A (1-9) was signed after the death of the Donor.
b. Exhibit PW1H which the judge relied upon was signed after the death of the Assignor.
GROUND 2
The learned trial Judge erred in law to have held that there was a concluded transaction between the plaintiff and the defendant and that the defendant applied for an extension of period of handover of the house. He relied heavily on Exhibit PW1K and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERRORS:
a. Exhibit PW1K purportedly written by the defendant was only signed by the plaintiff/respondent and his witness.
b. The Defendant never signed the said document as it was concocted by the plaintiff/respondent.
c. In the same document, Exhibit PW1K the plaintiff/respondent stated he gave the defendant 1 million naira only.
d. If the Defendant indeed wrote the document how come it were the plaintiff and his witness that signed the document where was the Defendant.

GROUND 3
The learned trial Judge misdirected himself on fact where he separated the deceased and the sister.
PARTICULARS OF ERRORS:
a. The action was commenced after the death of Saleh Jibrin Abubakar and the process of the plaintiff/respondent continued to carry his name.
b. The sister applied to continue the defence of the suit in the interest of the deceased which was granted and the writs and other processes were amended to state Hajiya Amina Apollo – Defendant substituted for Saleh Jibrin Abubakar (deceased).
c. All the processes before the lower Court carried this title how come the defendant was separated from the deceased by the learned trial Judge.
GROUND 4.
The learned trial Judge erred in law by holding that the defendant is a trespasser and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERRORS:
a. The appellant has been in possession and she is still in possession.
b. The respondent has never been in possession of the flat in dispute.
c. The deceased and the sister have been living in the flat before he passed on and she continued to live with the deceased children till date.

d. The appellant has no interest of her own. She carries on the interest of the deceased and the children.

GROUND 5
The learned trial Judge misdirected himself where he agreed with the plaintiff/respondent that the flat in question was at a certain time under locks and key and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERRORS:
a. The appellant stated that she has been living in the flat before and after the death of her brother.
b. A neighbour testified as DW2 and stated that there was no time that the flat was under locks and yet the trial Judge looked the other way.
GROUND 6
The learned trial Judge erred in law when he held that there was nothing in Exhibit PW1A (1-9) to indicate the presence of the executors of the documents and thereby occasioned a miscarriage of Justice.
PARTICULARS OF ERRORS:
a. The document speaks for itself.
b. The documents were notarized outside the jurisdiction of the Court.
GROUND 7
The learned trial Judge did not consider the weight of evidence before him. He ignored the case of the Defendant.
GROUND 8.
The learned trial judge erred in when he placed weight on the Power of Attorney when the content of the said document contradicts the evidence of the plaintiff and thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
a. The Power of Attorney admitted by the Court as exhibit wherein the deceased was said to have acknowledge the receipt of the sum N3,613,735.00 on the 18th day of November, 2005.
b. The plaintiff in his evidence-in-chief said that on 18th day of November, 2005, he gave the deceased the sum of N1,000,000.00 and paid another sum of N261,375.00.
c. This contradicts the content of the unregistered Power of Attorney serving as receipt.
d. The deceased was said to have received another N3,613,735.00 on the 28th day of November, 2007 vide a Deed of Assignment.
e. This Deed of Assignment does not bear the same date with the Power of Attorney to show that the money referred to is the same.
f. Whereas another document that emanated from the plaintiff dated the 1st day of June, 2006 referred to as “Extension of Time to Hand Over” contradicts the content of the Deed of Assignment in that the document claimed that the deceased received the sum of N1,000,000.00.
g. The Power of Attorney and the deed did not have any clause in them showing that the deceased shall however the house he was living in on a specific date.
h. All the documents emanating from the plaintiff are documentary hearsay which the Court relied on.
i. The plaintiff used parole evidence to vary the content of a Deed and Power of Attorney and the Court received the evidence instead of rejecting both.
GROUND 9
The lower Court erred in law and misdirected itself when it failed to examine the deed of conveyance and the circumstances under which it was obtained when there is evidence on record that the plaintiff and the said Saleh Jibrin Abubakar (deceased) were no more in contact in contact as at the time the deed of conveyance was made and thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
a. The deed of conveyance was made on the 28th day of November, 2007.
b. The deceased was no more an immigration officer as at the day the said deed of conveyance was made.
c. The deceased was retired from the immigration service on the 22nd of July, 2006.
d. The plaintiff did not come to take possession until the said Saleh Jibrin Abubakar died of stroke.
GROUND 10
The learned trial Judge erred in law when he admitted undated documents and relied on them in giving her judgment thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
a. Exhibits PW1E, PW1F, PW1G are all undated
b. No one can tell whether they existed before or after the transaction.
c. The persons they were addressed to did not indicate on the said exhibits to show that the documents were ever received and marked as such showing the dates they were received.
d. The trial Judge placed heavy reliance on them and held that it showed that the plaintiff has sufficient interest on the property and overwhelming evidence to be entitled to his claim
e. An undated document is worthless.
GROUND 11
The learned trial Judge erred in law when she admitted an investigation report carried out during the pendency of this suit when such report contained opinions tailored to prejudice the decision of the Court and when the content of the report was not a pronouncement of a Court of law and thereby occasioned substantial miscarriage of justice.
PARTICULARS OF ERRORS:
Plaintiff was caused to be investigated with the view of charging him to Court.
b. The plaintiff used all his know how to stampede the investigation.
c. The solicitor to plaintiff fronted all the processes filed in this Court to the Police and asked them to discontinue the investigation.
d. The Police discontinued the investigation and wrote a report in response and in reaction to letter of the counsel to the plaintiff and exonerated the plaintiff of any wrong doing.
e. The report was written when this case was pending in the Court and the Court relied on the said police report.
f. The Court wrongly admitted these pieces of evidence which was not a pronouncement of a Court of law.
g. The plaintiff was never charged to Court for a Court to pronounced him guilty of otherwise.
h. The Police usurped judicial powers vested only in the Court.
i. The trial Judge in this case confirmed “Rubber Stamped” and upheld every word written by the Police in the report.

GROUND 12.
The learned trial Judge erred in law and in fact when he held that the deceased has divested himself of his beneficial and possessory interest in the property and that the plaintiff is entitled to undisturbed possession when in fact the deceased made all the payment on the said property in his own name for himself and obtained the full allocation of the property from FCTA.
PARTICULARS OF ERRORS:
a. The property was allocated to Saleh Jibrin Abubakar as an official residence.
b. The deceased applied in his own name to buy the property.
c. The deceased made the initial deposit in his own name.
d. The deceased completed the transaction in his own name.
e. He had stroke and died immediately after he made the last payment.
f. The deceased was and has been living in that house with his aged mother, wife and children and other family relations.
g. The plaintiff/respondent has never come forward to be put in possession in the lifetime of the Saleh Jibrin Abubakar (now deceased).
h. All the purported document of sale cannot be found in the personal file of the deceased kept in his house.
i. The deceased Saleh Jibrin was never contemplating relocating his family from the house.
GROUND 13.
The learned trial Judge erred in law and in fact when she ordered the defendant to relinquish the house to the plaintiff when the defendant did not take tenancy from the plaintiff and when did not establish a valid title to the house and thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
a. There was no contract of sale or contract of tenancy between the appellant and the respondent
b. The appellant is not a tenant in the house and is not the Executor or Administrator to the Estate of the Saleh Jibrin Abubakar.
c. The respondent gave evidence in Court to the effect that he knows that the appellant did not buy the house and is not the owner of the house.
d. The appellant oversee to the welfare of the children of the deceased Saleh Jibrin Abubakar in the house.
e. The claim of the respondent cannot succeed against the appellant.

GROUND 14
The judgment of the lower Court was tainted with fraud and irregularity and ambiguity and is perverse when the learned trial Judge held that the leg of the claim of the plaintiff succeeds in part and thereby occasioning substantial miscarriage of justice.
PARTICULARS OF ERRORS:
Exhibits PW1A (1 – 9), the Power of Attorney is not registered for over three years that it was in the custody of the Respondent and the maker of the document was not called upon to testify and none of the witness in the said document was called to Court to testify in the case.
b. Exhibit PW (1-2) is the personal document of the deceased Saleh Jibrin Abubakar emanating from a public authority as a public document and was not certified in accordance with the law. The said document was even tendered in Court by the Respondent to whom it was not addressed to.
c. Exhibit PW1C (1-4), the letter of offer dated the 26th day of August and addressed to Saleh Jibrin Abubakar is a public document for which only a certify copy of it would be admissible in evidence as Exhibit or the original through the maker of the person to whom it was addressed. This document was not certified and was even tendered in the Court by a person it was not addressed to without the requisite foundation laid for it.
d. Exhibit PW1D (1-3), the letter for the allocation of Residential Allocation dated 14th day of October, 2013 and addressed to Saleh Jibrin Abubakar is a public document for which only a certify copy of it would be admissible in evidence as exhibit or the original through the maker or the person to whom it addressed. This document was not certified and was even tendered in the Court by a person it was not addressed to without the requisite foundation laid for it.
e. Exhibit PW1H (1-3) is an unregistered land instrument.
f. The mere possession of the deceased document of title by the respondent does not vest ownership of the deceased property on the respondent when the respondent did establish valid title or put in another way when the respondent raised a spurious title.
GROUND 15
The learned trial Judge erred in law and in fact when she assumed jurisdiction in this suit considering the fact that the suit was instituted against the 1st defendant (deceased Saleh Jibrin Abubakar) in his name after his death.
PARTICULARS OF ERRORS:
a. The 1st Defendant (deceased Saleh Jibrin Abubakar) died on 25th March, 2008.
b. The Respondent instituted this suit on the 16th November, 2009.
c. The Respondent was very well informed particularly at the hearing of his earlier filed suits against the deceased Saleh Jibrin Abubakar on the 10th June, 2008 and 17th February, 2009 respectively at the FCT Magistrate Court and High Court.
d. The Respondent’s suit was dead on arrival, haven been instituted against a dead person in his own name.
e. The institution of this suit in the personal name of deceased Saleh Jibrin Abubakar robbed the trial Court of its jurisdiction to hear and determine the suit.
GROUND 16
The learned trial Judge erred in law when she ordered the 1st defendant (deceased Saleh Jibrin Abubakar) to be substituted with the 2nd defendant, his sister who was not one of the Executors or Administrators of the Estate of Saleh Jibrin Abubakar.
PARTICULARS OF ERRORS:
a. The respondent instituted this suit against the 1st defendant (deceased Saleh Jibrin Abubakar) after his death.
b. The respondent instituted this suit against the 1st defendant in his own name, instead of suing the Executors and Administrators of the Estate of Saleh Jibrin Abubakar.
c. The judgment of the trial Court is null and void because the proper parties were not brought before the Court.
d. It is trite that you cannot sue a dead man but can only sue the Executors and Administrators of his Estate.
e. The non-joinder of the proper and necessary party in this suit (Executors and Administrators of the Estate of Saleh Jibrin Abubakar) renders the proceedings and judgment in the suit by the trial Court, null, void and of no effect.”

It is trite law that where it is found that issues formulated by an appellant has no bearing and/or do not relate to the grounds of appeal, the grounds must be deemed abandoned since no issues have been distilled from them and are therefore liable to be struck out. See the cases of:
Lalapu v COP (2019) 16 NWLR (Pt. 1699) 476 and Adelekan v ECU-Line NV(2006) 12 NWLR (Pt. 993) 33.

In this appeal, a careful perusal of the appellant’s issues 1, 2, 3, 5, 6, 7, 12 and 14 formulated for determination vis-a-vis his grounds of appeal 1, 2, 3, 6, 8, 9, 14 and 16 as contained in the appellant’s amended notice and grounds of appeal filed, revealed to me that the said issues are not related to or based on the said grounds of appeal. In other words, the said issues did not flow from the said grounds of appeal filed. Therefore, incompetent, valueless and are hereby ignored.

Order 7 Rules 2 (2) – (3) and 3 of the Court of Appeal Rules, 2016 provides thus:
“(2). Where ground of appeal alleges misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.
(3). The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” (Underline mine for emphasis)
While rule 3 provides thus:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof, which is not permitted under this rule may be struck out by the Court of its own motion or an application by the respondent.” (Underline mine for emphasis)
I have carefully perused the entire grounds of appeal and their particulars reproduced above, it is my view that grounds 2, 3, 8, 9, 10, 11, 12, 13, 14, 15 and 16 and particular C of ground 1, particular B of ground 5, particulars B, C, E, F, G, H and I of ground 8, particulars B, C, D and E of ground 10; particulars B, D, E, F, G. H and I of ground 11, particulars of ground 14 and particulars C and E of ground 16, are argumentative, ambiguous, inexact and are capable of making this Court not to understand what they exactly connote. Thus serves no useful purpose and rendered incompetent grounds 2, 3, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the amended notice and grounds of appeal.
Also in this appeal, the appellant who alleged misdirection in grounds 1 and 5 and error of law in ground 6 of his notice and grounds of appeal did not quote any passage in the judgment where the alleged misdirection occurred, he did not specify the nature of the misdirection, give full substantial nature of the misdirection or itemized the error complained of in the particulars as required by law. See the cases of Oduah v FRN (2012) 11 NWLR (Pt. 1310) 76 and Okolonwamu v Okolonwamu (2019) 9 NWLR (Pt. 1676) 1 SC. On whether ground 3 of the amended notice of appeal is a new issue raised by the appellant without the leave of the Court. I have earlier in this judgment held issue 3 is argumentative, ambiguous and inexact and is capable of making this Court not to understand what it exactly connotes.
In view of all the above, all the appellant’s grounds of appeal and their particulars contained in her amended notice of appeal are hereby struck out for being incompetent.

It is trite law that it is only when a proper notice of appeal has been filed that an appeal is said to have commenced. No appeal can stand without proper notice of appeal to sustain it. Where a notice of appeal contains an error, or is fundamentally defective it becomes incompetent and any appeal founded on an incompetent notice is invalid, it renders any proceedings founded on it null and void. Thus the appellate Court has inherent power to strike it out for being incompetent as the issue touches on the competence of the appeal and also the jurisdiction of the Court to entertain it. See the cases of Obidoa v Marchie 2010 LPELR-4668 CA and Cornelius v Ezenwa 1996 LPELR-1632 SC.

Having found that the notice of appeal herein is defective on the ground that it has no valid ground of appeal to sustain it, objection of the respondent to the hearing of this appeal is sustained.

The preliminary objection succeeds on issues 3, 4, and 5 of the respondent’s preliminary objection and it is hereby allowed. The amended notice of appeal filed by the appellant herein is hereby struck out on the ground of incompetence. There shall be no order as to cost.
Judgment is entered accordingly.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Kenneth l. Amadi, (Ph.D), JCA.

I am in agreement with the reasoning and the conclusion that the notice of appeal is incompetent.

A notice of appeal, it is well settled is an Originating Process and any fundamental defect renders the notice incompetent. In the case of Harry v. Menakaya (2017) LPELR – 42363 (SC), Ogunbiyi, JSC, held as follows:
“In the case of Odunze v. Nwosu (2007) 5-6 SC 40 at 58 – 59, some fundamental pronouncements were made by this Court on the crucial nature of a Notice of Appeal and said thus: “A Notice of Appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons in the ordinary civil actions that a party’s complaints against a decision by way of grounds of appeal not forming part of the Notice of Appeal cannot be entertained. Once the notice is vitiated in anyway, the appeal becomes incompetent and liable to be struck out.” See also the case of Kolawole v. Alberto (1989) SC Part III 187. Again, in First Bank of Nigeria Plc. v. T.S.A Industries Ltd. (2007) 17 WRN 40 at 78, it was held thus: “It is elementary that the basis or the foundation of an appeal in this Court is the Notice of Appeal filed in the Court below against any of its decision or judgment. …the legality by and life of an appeal in this Court is brought about by due and proper filing of a valid Notice of Appeal in the Court below.”
See also Okpe v. Fan Milk Plc & Anor (2017) 2 NWLR (Pt. 1549) 282. The notice of appeal in the instant case is defective. There cannot invariably be any competent appeal. I therefore, agree with my learned brother in the lead judgment that the appeal is incompetent and it is hereby struck out.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, KENNETH IKECHUKWU AMADI, Ph.D, JCA just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.

Appearances:

Kingsley O. Obue, Esq., with him, R.A. Ngwu, Esq. and Julius Akhigbe, Esq. For Appellant(s)

Charles I. Okoye, Esq., with him, R.A. Olutekumbi, Esq. and C. Nwaokorie, Esq. For Respondent(s)