CHIEF OF NAVAL STAFF v. BADIDI (2020)

CHIEF OF NAVAL STAFF v. BADIDI

(2020)LCN/14552(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, August 28, 2020

CA/AS/356/2019

RATIO

PLEADINGS: WHO NOMINATE AN ISSUE IN A CASE

The position of the law has always been that it is the plaintiff who has brought an action that nominates the issues for decision in the case. See the cases of NKUMA V. ODILI (2006) All FWLR (Pt.313) 24 and ORJIEKWE V. ORJIEKWE (2012) LPELR-20448(CA). It is also a settled position of the law that a Court is not to make a case for a party; it should look at what is pleaded and the relief sought in order to determine the issues involved in the case. See the cases of F.A.A.N. V. GREENSTONE LTD. (2009) All FWLR (Pt.500) 741; BANK OF THE NORTH LTD. V. GANA (2000) All FWLR (Pt.296) 862; as well as ORJIEKWE V. ORJIEKWE (supra). It is glaring from the judgment of the lower Court that there is nothing relating to “proper parties” that called for resolution in the instant case in which the Appellant in any case never filed any statement of defence to the statement of claim of the Respondent PerAYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

RATIO

PLEADINGS: JURISDICTION

Though it is now settled law that there is no mandatory leave of Court required to raise the issue of jurisdiction as a fresh issue in an appeal, (see the cases of APC V. NDUUL (2017) LPELR-42415(SC) and APGA V. OYE (2018) LPELR-45196(SC) amongst many other), the law has never been that a contrived issue of jurisdiction should be accepted by the Courts as a jurisdictional issue. In this regard, see the case of AGBITI V. NIGERIAN NAVY (2011) LPELR-2944(SC) wherein the Supreme Court some years ago has stated thus: –
“Where an appellant in his issues for determination raised question of jurisdiction, they are undisputedly questions of law. An appellant can raise such issues afresh in an appellate Court. Such questions are not only competent but are also expedient in the interest of justice for an appellate Court to entertain the questions. xxxxxx
An appellant is allowed to raise the question of jurisdiction on appeal without leave of Court whereas ordinarily a fresh issue can only be raised on appeal with leave of Court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence. The issue of jurisdiction being radically fundamental to adjudication in the Nigerian legal system must be properly raised before the Court can rightly entertain that point. Where the question involves substantial point of law, substantive or procedural and is apparent that it will not be necessary to open up further evidence which would affect the decision, the Court has a duty to allow the question to be raised and points taken so as to prevent an obvious miscarriage of justice. xxxx
Numerous decisions of this Court referred to jurisdiction of a Court as the basis, foundation and life wire of access to Court in adjudication under Nigerian civil process. Jurisdiction has been defined as a term of comprehensive import embracing every kind of judicial action. It has different meanings in different contexts. It is therefore a radical and crucial question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well-conducted and brilliantly decided they might otherwise have been, as a defect in competence is not intrinsic but extrinsic to the adjudication.” PerAYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

CHIEF OF NAVAL STAFF APPELANT(S)

And

PATIENCE BADIDI RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 13/4/2017 by the Federal High Court, Asaba Judicial Division presided over by Hon. Justice O.E. Abang (hereafter to be simply referred to as “the lower Court” and “learned trial Judge” respectively).

In the introductory part of the judgment of the lower Court appealed against (and which judgment spans pages 284-291 of the records of appeal) (hereafter to be simply referred to as “the records”), the subject matter of the proceeding in the judgment appealed against was captured thus: –
“In a motion on notice dated 14th May, 2015 brought pursuant to Order 14 Rules 1 & 3 of the Federal High Court (Civil Procedure Rules) 2009 and under the inherent jurisdiction of the Court, the Plaintiff Patience Badidi prayed the Court to enter final judgment as per the reliefs endorsed in paragraph 20(a), (b), (c), & (d) of the statement of claim in this suit.”

Having evaluated the affidavit evidence presented in support of the motion, (the instant Appellant as Defendant having not filed

any counter affidavit in opposition), the lower Court concluded its judgment thus: –
“In this case, no defence has been filed. It means that the Defendant has no defence to the Plaintiff’s case.
Under my watch, the Defendant cannot be allowed to dribble the Plaintiff and deny her judgment she is legitimately entitled by filing frivolous applications that will not in any way promote the cause of justice.
The facts in the statement of claim and also affidavit in support are unchallenged and uncontradicted, it is the duty of Court to believe the Plaintiff and act on the unchallenged evidence. See Omoregbe v. Lawani supra.
The application of the Plaintiff dated 14th May, 2015 deserves to succeed and it is accordingly granted as prayed. The Court hereby grants the reliefs 20(a) 20b, 20(c) and 20(e) as endorsed on the Plaintiff’s statement of claim dated 3rd March, 2010.
Put differently, the sum of 80,231,000.00 (Eighty million, two hundred and thirty one thousand Naira) is hereby awarded in favour of the Plaintiff payable by the Defendant and it represents the following:
“1. The sum of N35,000,000.00 (Thirty-Five

Million Naira) being the value of the flat top Barge christened ALBO – 3 measuring 28.55 meters in length, 9.00 metres in breadth and 3.00 metres in depth, belonging to late Chief Badidi the deceased father of the Plaintiff.
2. The sum of N45,000,000.00 (Forty-five million Naira) representing the daily earnings from the said Barge ALBO – 3, from 4th August, 2010 till judgment.
3. The sum of N231,000.00 (Two hundred and thirty one thousand Naira) being the money expended on transportation, charter of speed boat and hiring of drivers by the Plaintiff in trying to collect the Barge ALBO-3 from the Defendant.
4. That pre-judgment interest on the judgment sum shall be at the rate of 10% per annum from date of judgment till final liquidation of judgment sum. See Order 23 Rules (sic) 8 of the Rules of this Court.
5. That relief 20(d) is incompetent upon judgment being delivered, the Plaintiff is at liberty to take steps and enforce its judgment.
6. That costs of N100,000.00 (One hundred thousand Naira) is awarded in favour of the Plaintiff payable by the Defendant. I so hold.”

Subsequently, the Respondent herein (i.e.

Plaintiff at the lower Court) brought an application for garnishee order nisi to attach monies belonging to the Appellant domiciled in some garnishee banks to satisfy the judgment sum/debt awarded in favour of the said Respondent in the judgment of the lower Court delivered on 13/4/2017. Suffice it to say that the lower Court granted the order nisi sought by the Respondent on 30/11/2017; and upon the matter coming up before the said Court on 15/1/2018, ordered as follows: –
“1. The garnishee order nisi dated 30th November, 2017 is hereby made absolute against Union Bank of Nigeria Plc.
2. That Union Bank of Nigeria Plc shall release forthwith the attached judgment sum and accrued interest in the sum of N88,354,000.00 (Eighty eight million, three hundred and fifty four thousand Naira) to the judgment creditor through her counsel on record.
3. Guaranty Trust Bank Plc is hereby discharged from the garnishee proceedings.”

The Appellant initiated the instant appeal by lodging at the registry of the lower Court on 20/5/2019, a notice of appeal dated 17/5/2019. The notice of appeal in question was filed sequel to the order of this

Court made on 14/5/2019, granting the Appellant an extension of time within which to file his notice of appeal. The Appellant was given 14 days with effect from the said 14/5/2019, to file the notice of appeal. The notice of appeal filed by the Appellant contains only one ground of appeal. The said ground of appeal with its particulars read: –
“GROUND OF APPEAL
The Honourable Court erred in law when he failed to critically examine the processes before it and if possible raised suo motu (sic) the issue of proper party before the Court which goes to the jurisdiction of the Court.
Particulars:
1. It is trite law that it is only when proper parties are before the Court that the Court will be competent to adjudicate on the suit.
2. The Appellant is a statutory person within the meaning of the law who is indemnified by the enabling Act of the National Assembly when in operation within the meaning of Section 239 of the Armed Forces Act Cap A 2004.
3. The Appellant was at time of arrest of the vessel or boat was within Section 1 (4) (a) (i-iv) of the Act establishing Armed Forces of Nigeria.”

The appeal was entertained on 3/6/2020. The Appellant though served with hearing notice in respect of the hearing date of the appeal by phone call and SMS on 26/5/2020, was absent in Court and was not represented by counsel. Consequently, the appeal was deemed as having been argued on the briefs of argument of the parties in the Court’s file. The brief of argument of the Appellant is dated 5/7/2019 and filed on 16/7/2019. Appellant’s reply brief of argument is dated 8/10/2019 and filed on 11/10/2019. The briefs filed by the Appellant were settled by P.E. Okohue, Esq.

Respondent’s brief of argument is dated 5/8/2019, and filed on the same date. The brief of argument was settled by Jonathan Ekperusi, Esq. who argued the appeal for the Respondent.

It is however pertinent to state that prior to deeming the appeal as having been heard on the briefs of arguments of the parties that have been identified hereinbefore, the Respondent called the attention of the Court to the fact that he brought a preliminary objection to the hearing of the appeal and that the same had been argued in her brief of argument.

The issue for the determination of the appeal as

formulated in the brief of argument of the Appellant is: –
“Whether the Appellant as a statutory creation under the Armed Forces Act and by virtue of Sections 1(4) and 239 of the same Act, the Appellant was a proper party in the suit at the Court below.”

The issue for the determination of the appeal as formulated by the Respondent in her brief of argument reads: –
“Whether the Appellant was/is a proper party in this matter.”

I will first consider and resolve the preliminary objection (hereafter to be simply referred to as “P.O.”) to the hearing of the instant appeal brought by the Respondent. The Respondent is by her P.O. challenging the competence of the instant appeal. The grounds on which the objection is based are: –
“i. The sole ground of appeal contained in the notice of appeal is incompetent for being vague, imprecise and expressed in general terms thus discloses no reasonable ground of appeal.
ii. The sole ground of appeal contained in the notice of appeal does not attack the decision of the lower Court appealed against.
iii. The above defects render the notice and ground of appeal

incompetent and liable to be struck out.

In arguing the P.O., the Respondent having re-produced the ground of appeal submitted to the effect that the said ground of appeal offends the provision of Order 7, Rules 2(1) and 3 of the Court of Appeal Rules 2016 (hereafter to be simply referred to as the “CAR, 2016”). It is the stance of the Respondent that where a ground of appeal offends Order 7, Rule 3 of the Rules of this Court, same is liable to be struck out. It is also the stance of the Respondent that the sole ground of appeal contained in the notice of appeal is vague and too general in terms, thereby offending Order 7, Rule 3 of the CAR, 2016 and this Court was urged to so hold and to strike out the ground of appeal. Cases dealing with situations where grounds of appeal have been considered to be vague or imprecise, considered to be relevant were cited. Furthermore, the Respondent having stated that a ground of appeal is vague or imprecise where it fails to address a specific issue of law or fact but is rather expressed in general terms of both law and fact, submitted that the sole ground of appeal in the instant appeal is expressed in

very wide terms, without attacking any specific decision of the lower Court or referring to any specific process which the lower Court ought to have critically examined, or the specific issue of proper party contemplated by the complaint of the Appellant. Cases in respect of what a ground of appeal should deal with considered relevant, were cited by the Respondent.

It is the stance of the Respondent that it is settled that once the ground(s) of appeal is/are incompetent, the appeal is liable to be struck out. That if the sole ground of appeal in the instant appeal is struck out for its defectiveness as should be the case, the implication is that there being no other ground of appeal to sustain the appeal, the appeal is liable to be struck out in its entirety and this Court was urged to so hold.

The Appellant responded to the P.O. brought by the Respondent in his reply brief of argument. The Appellant in the main argued that his sole ground of appeal was not vague, imprecise and was not expressed in general terms. Consequently, that it is a reasonable ground of appeal. It is the stance of the Appellant that the problem the Respondent has is that she

has tried to merge the juristic personality canvassed at the lower Court with the statutory protection created by virtue of Section 239 of the Armed Forces Act Cap A20 2004. He stated that while it is true that the juristic personality of the Chief of Naval Staff (hereinafter to be simply referred to as “CNS”) was canvassed at the lower Court, the statutory protection of the CNS was not in issue between parties. That the statutory protection of the CNS is now in issue because parties and lower Court were under an obligation to raise the point of law in question. That it cannot therefore be strictly said that it was not an issue at the lower Court or was not a subject of pronouncement at the lower Court. It is the stance of the Appellant that the lower Court failed to critically examine the processes before it and raise suo motu the issue of statutory proper party. That the sole ground of appeal in the notice of appeal shows that the lower Court has the responsibility to raise “the issue of statutory proper party” on its own without being prompted and without asking either of the parties before it to address it on the said issue. That it is clear

that lower Court did not avert its mind to the point. The Appellant submitted that therefore, the issue in question is a proper one that this Court should make a pronouncement on.
(Bold and underline supplied by me for emphasis).

Dwelling on the provisions of Order 7 Rule 2(1) and 3 of the CAR, 2016; the Appellant submitted that the Respondent did not completely read and appreciate the issue in contention. That the rules of this Court are not meant to completely address the whole procedure of the Court but meant to assist it, subject to the discretionary power of the Court as donated to it by Section 6(6) of the Constitution of the Federal Republic of Nigeria as amended. That as it has been stated the parties did not raise the issue at the lower Court and that this is what Order 7(2)(1) is all about; and only that it did not go further to cover when the Court itself is under obligation to raise the issue suo motu. That if parties were to raise the issue but failed, that would have been the decision complained of but where the Court in itself is also under obligation to raise it, the rules of the Court (which in any case is merely advisory) cannot be

taken too far to excuse the hearing of a case of this nature. That the ground of appeal has raised a novel issue and this Court was urged to hear the instant appeal.
(Bold and underline supplied by me for emphasis).

I have hereinbefore “bold and underline” some aspects of the submissions of the Appellant which I consider not to be very consistent and/or consider to be concessions. As I consider most of the other submissions made by the Appellant to be somehow muddled up and as I do not intend to do any more surgery as it were, on the arguments he has presented in his reply brief of argument on the P.O., I will now re-produce what is contained therein. It is stated in the reply brief of argument thus: –
“2.08. My Lords, if we look at the submission within the frame work in paragraph 2.07 above the rules in contention will be clearer. The issue is that the Court (not the party) failed to raise the issue suo motu which is a fact. Would that not be enough ground to determine this appeal?
2.09. Our ground was that of the failure of the lower Court in its inherent power and in the particulars of the failure, the Appellant cited

the provision of the law the lower Court would have relied on to raise the issue suo motu. They were properly tied together to make no room to think otherwise. We submit that the ground of appeal tied up with the particulars explaining the grounds are clear enough to give room to no ambiguity. It is clear and urge the Court to so hold.
2.10. Finally on this issue my Lords, the Respondent cited the case of Olonade vs. Sowemimo (2014) 48 WRN 1 at 20 where it was held inter alia that:
“it is a settled principle of law that a ground of appeal must arise, flow from or relate to the Judgment of the Court and that any complaint that does not flow from the decision appealed against cannot legitimately be entertained by the Court.
We say that a proper reading and digestion of the ratio will show that though this appeal did not arise from the Judgment from the Court below, it certainly flow from the Judgement of the Court in that the lower Court has concurrent duty to raise the issue in the absence of the parties raising it. It is a settled principle and a question of case law the lower Court could take judicial notice of.

The writ of summons by which the instant action was commenced by the Respondent as Plaintiff, against the Appellant as Defendant, issued on 9/3/2010. The endorsement on the said writ of summons as contained on page 3 of the records reads: –
“The Plaintiff’s claim against the Defendant is for the value and loss of earnings of the flat top Barge christened ALBO-3, measuring 28.55 metres in length, 9.00 metres in breadth and 3.00 metres in depth, belonging to the Plaintiff’s father, late Chief Badidi. The Defendant wrongfully detained and kept the said Barge at NNS Pathfinder, Naval Base, Port Harcourt since September 22, 2004 on the unfounded suspicion that it was used for illegal bunkering, which suspicion the Defendant has since abandoned. The Defendant had requested the Plaintiff come for the release of the said Barge, upon which the Plaintiff approached the Defendant and met all the requirements for the release of same, but the Defendant has failed, refused and/or neglected to release and hand-over the said Barge to the Plaintiff, whereof the Plaintiff claims against the Defendant as follows:
1. The sum of N35,000,000.00 (Thirty-five million Naira) only being

the value of the flat top Barge christened ALBO-3, measuring 28.55 metres in length, 9.00 metres in breadth and 3.00 metres in depth, belonging to late Chief Lagos Badidi, the deceased father of the Plaintiff.
2. The sum of N45,000.00 (Forty-five thousand Naira) only daily, representing the daily earnings from the said Barge ALBO-3, from February 8, 2010 till Relief 1 above is fully complied with.
3. The sum of N231,000.00 (Two hundred and thirty-one thousand Naira) only being the money expended on transportation, charter of speed boat and hiring of diver by the Plaintiff in trying to collect the Barge ALBO-3 from the Defendant.
4. An order directing the Defendant to pay the sums of money in Reliefs 1, 2 and 3 above, into the Registry of this Honourable Court for the benefit of the Plaintiff within thirty (30) days from the date of judgment in this suit.
5. Interest on the total judgment sum at the rate of ten percent (10%) per annum from the date of judgment until the total judgment debt is fully liquidated.”

Suffice it to say that the claims of the Respondent as endorsed on the writ of summons as re-produced hereinbefore, and

those set out in paragraph 20(a)-(e) of the statement of claim are substantially the same in their wording and purport.

The lower Court as earlier stated entered judgment in the Respondent’s favour in the manner earlier re-produced hereinbefore in this judgment. The position of the law has always been that it is the plaintiff who has brought an action that nominates the issues for decision in the case. See the cases of NKUMA V. ODILI (2006) All FWLR (Pt.313) 24 and ORJIEKWE V. ORJIEKWE (2012) LPELR-20448(CA).

It is also a settled position of the law that a Court is not to make a case for a party; it should look at what is pleaded and the relief sought in order to determine the issues involved in the case. See the cases of F.A.A.N. V. GREENSTONE LTD. (2009) All FWLR (Pt.500) 741; BANK OF THE NORTH LTD. V. GANA (2000) All FWLR (Pt.296) 862; as well as ORJIEKWE V. ORJIEKWE (supra).

It is glaring from the judgment of the lower Court that there is nothing relating to “proper parties” that called for resolution in the instant case in which the Appellant in any case never filed any statement of defence to the statement of claim of the

Respondent. Similarly, the Appellant did not file any counter affidavit in opposition to the motion for judgment brought by the Respondent and pursuant to which the lower Court entered judgment in favour of the Respondent on 13/4/2017. I am of the considered view that it is glaring that the issue of “proper parties” was not on the table as it were, for the lower Court to consider in its judgment or did not arise for resolution in the case placed before the said lower Court for resolution and determination. Therefore, the issue of “proper parties” based on a contrived ground of appeal that raised it as a jurisdictional issue, cannot be said to flow from the decision of the lower Court on appeal. Indeed, the Appellant would appear to have recognised or conceded that a ground of appeal has to flow from the judgment appealed against when he stated in his reply brief that: –
“We say that a proper reading and digestion of the ratio will show that though this appeal did not arise from the Judgment from the Court below, it certainly flow from the Judgment of the Court in that the lower Court has concurrent duty to raise the issue

in the absence of the parties raising it. It is a settled principle and a question of case law the lower Court could take judicial notice of.”
I am in no doubt that the somehow seeming double talk the Appellant engaged in, in the submission re-produced above is clearly based on his misconceived notion of what an appeal founded on a ground of jurisdiction entails. Though it is now settled law that there is no mandatory leave of Court required to raise the issue of jurisdiction as a fresh issue in an appeal, (see the cases of APC V. NDUUL (2017) LPELR-42415(SC) and APGA V. OYE (2018) LPELR-45196(SC) amongst many other), the law has never been that a contrived issue of jurisdiction should be accepted by the Courts as a jurisdictional issue. In this regard, see the case of AGBITI V. NIGERIAN NAVY (2011) LPELR-2944(SC) wherein the Supreme Court some years ago has stated thus: –
“Where an appellant in his issues for determination raised question of jurisdiction, they are undisputedly questions of law. An appellant can raise such issues afresh in an appellate Court. Such questions are not only competent but are also expedient in the interest of justice

for an appellate Court to entertain the questions. xxxxxx
An appellant is allowed to raise the question of jurisdiction on appeal without leave of Court whereas ordinarily a fresh issue can only be raised on appeal with leave of Court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. The issue of jurisdiction or competence when raised must be one which must be capable of being disposed of without the need to call additional evidence. The issue of jurisdiction being radically fundamental to adjudication in the Nigerian legal system must be properly raised before the Court can rightly entertain that point. Where the question involves substantial point of law, substantive or procedural and is apparent that it will not be necessary to open up further evidence which would affect the decision, the Court has a duty to allow the question to be raised and points taken so as to prevent an

obvious miscarriage of justice. xxxx
Numerous decisions of this Court referred to jurisdiction of a Court as the basis, foundation and life wire of access to Court in adjudication under Nigerian civil process. Jurisdiction has been defined as a term of comprehensive import embracing every kind of judicial action. It has different meanings in different contexts. It is therefore a radical and crucial question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well-conducted and brilliantly decided they might otherwise have been, as a defect in competence is not intrinsic but extrinsic to the adjudication.”
The CAR, 2016 make provisions in respect of notice and grounds of civil appeal in Order 7 Rules 1- 8. Of particular relevance having regard to the P.O. of the Respondent are the following provisions: –
“Order 7 Rule 2(1)
All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below

which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
Rule 2(2)
Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
Rule 2(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.
Rule 3
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 on application by the

Respondent.
Rule 6
The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
The sole ground of appeal in the notice of appeal filed in the instant appeal as couched by the Appellant has been set out hereinbefore in this judgment. Without embarking on any extensive construction or interpretation of the said sole ground of appeal, it is in my considered view glaringly that it falls short of what the provision of Order 7 Rule 3, quoted above permits as a good ground of appeal. Ex-facie it is not only very fluid or most imprecise in nature; but the complaints or grouses of the Appellant as expressed therein, are fused. This is apart from the fact that the said sole ground alleges an infraction by the lower Court of a principle of law that has not been shown to have any origin in any legislation or case law. The principle of law in question is that a Court commits an infraction in the discharge of its adjudicatory duty, when it does not raise suo motu an issue that has no bearing whatsoever on the issues nominated by a plaintiff for the determination of his case. I am

of the considered view that the Appellant came up with the alleged violation or infraction of the non-existence principle of law that a Court must as it were, raise suo motu any issue that has no bearing on the case before it, particularly when the said Court has no reservations that the case it is entertaining, can be properly determined by it as constituted, in terms of parties before it, complaint and reliefs sought, simply to enable it ride rough shod on the issue of jurisdiction. This in my considered view clearly makes the sole ground of appeal upon which the instant appeal is erected to be a contrived and or frivolous “issue of jurisdiction”. Such a ground of appeal should not be permitted by this Court and will not be accepted by this Court as a valid ground of appeal, in the instant appeal.
Flowing from all that has been said above, is that the P.O. of the Respondent succeeds and the sole ground of appeal in the instant appeal must be and is hereby struck out for being glaringly incompetent. There being no other ground of appeal in the notice of appeal to sustain the said appeal, it also follows that the appeal must be struck out as

it is now lacking in a valid notice of appeal. The Appellant in my considered view is very lucky that the Respondent had not kept quiet and proceeded to attack the appeal on the issue formulated for its resolution by the Appellant and which if found to be properly grounded would have resulted in the dismissal of the appeal. I say no more on this.

In the final analysis, the P.O. of the Respondent to the hearing of the instant appeal succeeds and is upheld. The appeal is accordingly struck out leaving the judgment of the lower Court intact.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I am in agreement with my Lord, Ayobode O. Lokulo-Sodipe, JCA that this appeal hinged on the incompetent sole ground of Appeal and Issue must be struck out upon the success of the preliminary objection raised. The Ground of Appeal was vague and imprecise. The issue did not arise. I will not therefore prejudice the merits of the facts if any; and good enough it was not addressed in the circumstance and thus not pushing the Court into an academic exercise, which is not its function.
The Appeal being incompetent, I agree that this Court’s only duty is to strike same out.

I concur, in so doing.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA, and I am in agreement with the judgment.

I am in agreement that the sole ground of appeal is vague and not tied or hinged to any established law allegedly breached by the lower Court. It must therefore fail, the preliminary objection of the Respondent has merit and succeeds and its upheld.
In absence of a valid ground of appeal, the appeal is struck out.

Appearances:

Appellant absent and not represented by counsel For Appellant(s)

Jonathan Ekpeusi For Respondent(s)