CYPRIAN ONWUJEKWE v. EMEKA OKOYE & ANOR (2019)

CYPRIAN ONWUJEKWE v. EMEKA OKOYE & ANOR

(2019)LCN/12931(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/E/556/2014

RATIO

SIGNING OF PROCESSES TO BE FILED IN COURT: WHO MUST SIGN THESE PROCESSES

The law is now settled that a process to be filed in Court must be signed by the litigating party or a legal practitioner on his behalf. See FIRST BANK OF NIGERIA PLC V. ALHAJI SALMONU MAIWADA (2013) 5 NWLR (PT. 1348) 448.PER ABUBAKAR SADIQ UMAR, J.C.A.

SIGNING OF PROCESSES: HOW THEY SHOULD BE SIGNED

The Supreme court, Per Rhodes-Vivour, J.S.C in BANK OF INDUSTRY LTD. V. AWOJUGBAGBE LIGHT INDUSTRIES LTD. (2018) 6 NWLR (PT. 1615) 220 AT 231 held thus:
Where a legal practitioner prepared a process filed in a Court of law, it has been recommended that the process should be signed as follows: ”All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm. See also SLB CONSORTIUM LTD. V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (PT. 1252) 307 AT 337-338.

It is also settled law that the mere typing of a person ‘s name on a process does not mean that the process has been signed by that person. See KEYSTONE BANK LIMITED V. J.O. ADEBIYI & SONS LTD (PT. 1439) 98 AT 110-112.
I have taken a look at the Amended claim at pages 108-110 of the record and it is crystal clear that same was not signed.PER ABUBAKAR SADIQ UMAR, J.C.A.

A FUNDAMENTALLY DEFECTIVE AND INCOMPETENT ORIGINATING PROCESS WILL LEAD TO A NULL TRIAL

The law is settled that where an originating process is fundamentally defective and incompetent, as in this case, any trial based on such invalid originating process is a nullity. See CHUKWUDI NNALIMUO & 3 ORS. V. SUNDAY ELODUMUO & 2 ORS (UNREPORTED APPEAL NO. SC. 278/2005 DELIVERED ON 12/01/2018) PER AUGIE, JSC. IN THE CASE OF BASHIR GIDAN KANAWA V. ALHAJI SANI MAIKASET (2007) 10 NWLR (PT. 1042) 283 AT 297, PER ARIWOOLA, JCA (as he then was), stated, inter alia, as follows:
It is trite that where a Court takes upon itself to exercise a jurisdiction which it does not possess its decision amounts to nothing.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

CYPRIAN ONWUJEKWE Appellant(s)

AND

1. EMEKA OKOYE
2. PHILIP ONUORAH Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A.(Delivering the Leading Judgment): This appeal is against the ruling of the Anambra State High Court, Awka Judicial Division, delivered by J.C. Iguh J. on the 24th day of March, 2014 wherein the judgment of the Magistrate Court, Awka Magisterial Division, delivered by C.O. Ezekwere on the 30th day of May, 2008 was set aside and the Respondent?s appeal upheld.

BRIEF FACTS OF THE CASE
The facts that culminated into the instant Appeal are that the Appellant was a tenant to the 1st Respondent at stall NO. M/1 lock up stall Eke, Amawbia. The case of the Appellant as could be gleaned from the records was that the 1st Respondent contrary to Article 15 of the constitution of the Amawbia Amalgamated Traders Association (AMATA) sold the aforesaid shop to the 2nd Respondent. According to the Appellant, Article 15 of the constitution of AMATA provides that anyone who wants to sell his shop must first give the existing tenant an option to purchase unless the said tenant is not interested in purchasing same before the owner sells to a third party.

?It was in the spirit of asserting his rights that the Appellant,

as Plaintiff in the Magistrate Court, Awka, Anambra State, instituted the instant suit against the Respondents, as Defendants vide a claim dated 5th May, 2004 and filed on the same date wherein he claimed against the Respondents for the following reliefs:
? A declaration that the purported sale of M/1 lock up store by the 1st defendant to the 2nd defendant is illegal, unlawful and contrary to the constitution of Amawbia Market Amalgamated Traders Association (AMATA).
? An order of the Court directing the 1st defendant to refund the purchase money to the 2nd defendant.
? A perpetual injunction to restrain the defendants and that servants agents from any sale, lease of all or any part of the M/1 lock up store without the consent and agreement of the plaintiff.

On the 19th August, 2004, Counsel for the Plaintiff now Appellant sought and obtained an order of the Court to amend his original claim. The amended claim dated 27th August, 2004 and filed on the same date was served on the Defendants, now Respondents and trial proceeded.

After the close of trial and address of counsel, the trial Magistrate Court on the 30th May, 2005

delivered its judgment and granted all the Appellants claims as follows:
? The 1st defendant is hereby ordered to refund forthwith to the 2nd defendant the purchase money paid by the 2nd defendant in respects of shop M/1 situate at Eke Amawbia and
? The defendants and their servants, agents are hereby restrained from any sale, lease of all or any of the M/1 store without first of all notifying the Plaintiff in line with Article 15(?N?) of the Amawbia Market Amalgamated Association.?
See page 104 of the records.

Dissatisfied with the decision of the Magistrate Court, the Defendants as Appellants appealed against same in the Anambra High Court, sitting in Awka. The High Court sitting in its appellate jurisdiction delivered its judgment on the 24th day of March, 2014 wherein the appeal was allowed and the Court found in favour of the Appellants.

Aggrieved by decision of the High Court, the Appellant in turn exercised his right of appeal to this Court vide an original notice of appeal dated 2nd day of May, 2014. By an order of this Honourable Court granted on the 31st day of October, 2017, the Appellants filed an Amended

Notice of appeal dated 16th March, 2016. The Grounds of Appeal without their particulars are:
?GROUND ONE?
ERROR IN LAW
The lower Court erred in law when it held that the trial Court lacked jurisdiction to entertain the claim of the Plaintiff on the ground that the amended claim of the Plaintiff/Appellant was not signed.
?GROUND TWO?
ERROR IN LAW
The lower Court erred in law when it entertained the issue of unsigned claim raised by the defendants/Appellants.
?GROUND THREE?
ERROR IN LAW
The lower Court erred in law when it entertained the appeal of the Defendant/Appellant when the time for filing of Record of Appeal has elapsed.
?GROUND FOUR?
ERROR IN LAW
The lower Court erred in law when it entertained the appeal of the Defendant/Appellant when the Record of Appeal is incomplete.
?GROUND FIVE?
ERROR IN LAW
The lower Court erred in law when it acted upon the Record of Appeal of the Defendant Appellant Respondent (sic)?

?The Appellant, in order to prosecute this appeal, on the 22nd day of February, 2017 filed an

Appellant?s brief of argument dated the 22nd day of February, 2017. A Reply Brief dated 23rd January, 2018 and filed on the same date. Both Briefs were deemed properly filed and served by an Order of this Honourable Court granted on the 31st day of October, 2017. The said briefs were settled by CHIEF EMMA ODIM, who identified two issues for the determination of this appeal as:
? Whether the lower Court was right when it struck out the suit of the Plaintiff and set aside the judgment of the lower Court on the ground that the amended claim was not signed.
? Whether the Court ought to have entertained the appeal of the Respondent at the lower Court when the record of appeal is incompetent.

The Respondents on the 6th day of December, 2017 filed its Respondents? Brief dated same 6th day of December, 2017. The said brief was settled by EMEKA NWANKWO ESQ., who also identified two issues for determination which are:
? Whether the lower Court was right when it struck out the suit of the Appellant and set aside the judgment of the lower Court on the ground that the amended claim of the Plaintiff was not signed?<br< p=””

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? Whether the Court ought to have entertained the appeal of the Respondent at the lower Court when the record of appeal is alleged to be incompetent?

The Appeal was taken on 17th January, 2019 when the counsel for the parties adopted their respective briefs of argument and made adumbrations on the issues and arguments in support of their positions in the appeal.

APPELLANT?S ARGUMENTS
With respect to the first issue distilled by the Appellant, counsel submitted that the suit originated from the Magistrate Court which is a Court of summary trial where pleadings are unknown and that the summons which initiated the suit was duly signed by counsel. He referred this Honourable Court to pages 105-107 of the Record of Appeal.

It is also the submission of Counsel that non signing of the Amended claim by the Plaintiff or by counsel cannot vitiate the whole suit rather it may render the said Amended claim incompetent. Counsel submitted further that a process either claim or statement of claim when amended, dates back to the day the original process was filed.

?Counsel submitted that if nothing was amended or that the

amendment was incompetent the Court ought to fall back on the earlier claim filed as the said claim was not and has not been amended. He referred this Honourable Court to the case ofMOTOH VS. MOTOH (2011) ALL FWLR (PT. 584) P. 75 AT P. 105, PARAS D – E.

Counsel submitted that the lower Court ought not to have struck out the suit but would have considered the suit based on the claim and know whether the claim supported the judgment of the trial Court. He referred this Court to pages 105-107 of the record of appeal and submitted that the claim of the plaintiff supported the judgment of the trial Court and that if the lower Court considered the original claim of the Plaintiff, the Court would have arrived at the same decision arrived by the trial Magistrate Court.

?Counsel further submitted that the name on the said Amended claim meets up into the requirement of the law as regards to documents filed by legal practitioner and that the name Nelson Uzoegbu Esq. boldly written on top of the words ?Plaintiff Counsel? suffices to validate the Amended Claim. Counsel made heavy reliance on SECTION 2(1) AND SECTION 24 OF THE LEGAL PRACTITIONER ACT

CAP 207 LAW OF THE FEDERATION 1990 and the case of SLB CONSORTUM LTD VS. NNPC (2011) ALL FWLR PT. (583) (1902) AT PAGE 1911 PARAS O-E?.

Counsel contend that once a legal Practitioner?s name is on the processes or document, that amounts to sufficient signature and going by the virtue of the fact that Nelson Uzogbu Esq. is a person called to Bar and licensed to practice in the Supreme Court of Nigeria or any other Court, his name on a document suffices as his signature.

Counsel contend that it will be a matter of technicality to throw away a document with a known maker particularly a document prepared by a legal Practitioner in his name and in a suit he is conducting in an application he made for an amendment.

Finally on this issue, Counsel urged this Court to resolve this issue in favour of the Appellant and hold that the Amended claim with the name of the counsel on it is competent.

Going to the second issue submitted by learned counsel to the Appellant for the determination of this appeal, he submitted that the lower Court was gravely in error when it acted upon the record of Appeal before it. His contention is premised on

the alleged fact that the said record of appeal was compiled out of time and no enlargement of time was sought and obtained before or after the compilation of same.

Counsel submitted further that the judgment of the lower Court was delivered on 30th day of June 2008 and the Record of Appeal was compiled in the year 2011 without any enlargement of time by the lower Court. By reason of the foregoing, counsel submitted further that it is a fundamental defect for a Court to rely on a Record of Appeal which was not proper before it.

On the whole, he finally urged this Honourable Court to allow this appeal, set aside the decision of the Anambra State High Court presided over by Hon. Justice J.C. Iguh and uphold the judgment of the Magistrate Court.

RESPONDENTS? ARGUMENTS
The learned counsel to the Respondents on the other hand submitted that on 19/8/2004, counsel for the Appellant sought and obtained an order from the trial Court to amend his original claim and that the Amended claim dated 27/8/2004 and filed on the same date was served on the Respondents with trial proceeding on the Amended claim.

Counsel submitted further that it is a common ground between the parties that the said Amended claim was neither signed by the Appellant nor his counsel.

Flowing from the foregoing, counsel argued that it is an elementary principle of law that amendment of any Court process, once done and granted by the competent Court takes a retrospective effect, i.e. the process so amended dates back to the date when the original process was filed, he cited the case ofSHUAIBU VS. MUAZU (2014) 8 NWLR (PT. 1409) PAGE 227, AT RATIO 15.
Counsel submitted that the Appellant Amended Claim is the Extant claim before the trial Magistrate as the original claim has been discarded and the Court cannot fall back to it under any circumstance.

Counsel submitted that it is a misconception for counsel to the Appellant to contend that since the Amended claim is incompetent, the lower Court ought to fall back to the earlier claim filed and treat such as if it was never amended. He submitted further that the original claim so amended no longer forms part of the processes to be considered by the Court. More so, the trial Court according to the submission of counsel, its judgment relied on the Amended claim.

He referred this Court to pages 102-103 of the record of appeal.

On the effect of the unsigned amended claim dated 27/8/2004, counsel for the Respondents argued that it has been long settled that an unsigned document evinces no probate value and is useless as means of proving the claim of its content(s). He referred this Court to EZENWA VS. K.S.H.S.M.B (2011) 9 NWLR (PT. 11251) PG 96, RATIO 3, KEYSTONE BANK LTD VS. J.O.A & S (NIG) LTD (2015) 1 NWLR (PT. 1439) PG 101, RATIO 5, AND FIRST GUARANTEE PENSION LTD VS. NPC (2016) 10 NWLR (PT. 1519) PG 43 RATIO 5.

Counsel argued that it is the requirement of the law that every Court processes which include originating claim and subsequent amended claim as in the instant case must be signed goes to the issue of jurisdiction and failure to sign the same is not a mere irregularity that can be waived by the Court and the respondents, he referred to Makinde Vs. Orion Engr. Services (U.K) Ltd (2014)11 NWLR (Pt. 1417) Pg 1 Ratio 5 and First Guarantee Pension Ltd Vs. NPC (2016) 10 NWLR (Pt. 1519) Pg 39 Ratio 5.

On a final note, Counsel urged this Court to resolve this issue in favour of the Respondents.

On issue two, which is distilled from Ground 4 of the grounds of appeal, counsel for the Respondents submitted that the Anambra State High Court (Civil Procedure) Rules 2006 being the extant rule guiding the proceedings of the lower Court, made provision as to the time within which the record of appeal will be compiled and transmitted to the lower Court from the trial Magistrate Court.

Counsel argued that even if the record of appeal was compiled and transmitted out of time, it was an irregularity which had been waived by the Appellant who actively participated in all the proceedings before the lower Court, being aware of same but never complained. Counsel submitted that such irregularity could not have negatively affected the outcome of the case. He referred this Honourable Court to ORDER 5, RULE (2) OF THE HIGH COURT OF ANAMBRA STATE CIVIL PROCEDURE) RULES 2006 AND SHUAIBU VS. MUAZU (SUPRA) PG 221 RATIO 5 and submitted that the Appellant was duty bound to act timeously and before taking any further steps in the proceedings, otherwise he will be deemed to have waived his right.

?He argued that the Appellant raised the issue of compiling

and transmitting record out of time in his written address, after he became aware of the alleged irregularity and that the Appellant fully participated in all the proceeding before the trial Court.

On a final note, counsel submitted that the appellant has failed to show the injustice he suffered as a result of the alleged failure to compile and transmit the record of appeal within the time before the lower Court. He cited the case of SHUAIBU VS. MUAZU (SUPRA) PG. 221 RATIO 6 and urge the Court to resolve this issue in favour of the respondents.

APPELLANTS? REPLY BRIEF
Learned counsel to the Appellant in his reply brief submitted that the case of SHUAIBU VS MUAZU (SUPRA) cited by the Respondents’ counsel supports the case of the Appellant and urged this Court to hold so.

He then urged this Honourable Court to distinguish the cases ofEZENWA V K.S.H.S.M.B (supra); FIRST GUARANTEE PENSION LTD V N.P.C (2016) 10 NWLR (PART 1519); MAKINDE V ORION ENFR. SERVICES (U.K) LTD (2014) 11 NWLR (1417) as the cases are not on all fours with the case at hand.

Counsel finally cited the case of DALHATU VS. DIKKO (2003) ALL FWLR (PT.242) PAGE 494 PARAS B ? C

to support his position that signature is the writing or otherwise affixing a person?s name or mark to represent name by himself or by his authority. He referred this Honourable Court to IDU GODWIN EMEKA VS. HON. LYNDA CHUBA IKPEAZU (2017) 15 NWLR (PT. 1589) PG 345 AT PG 386 PARA B ? C.

RESOLUTION
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered.

A close perusal at the issues formulated by both counsel would revealed that the counsel to the Respondents has only adopted the issues distilled by counsel to the Appellant for the determination of this appeal. In the light of the foregoing, I am of the considered opinion that both issues are apt and sufficient for the just determination of the crucial issues in this appeal.

In effect of the above, I consider the issue stated below as being apt and germane for the determination of the instant appeal.

ISSUES FOR DETERMINATION
1. Whether the lower Court was right when it struck out the suit of the Appellant and set aside the judgment of the lower Court on the ground that the amended claim of the Plaintiff was not signed?
2. Whether the Court ought to have entertained the appeal of the Respondent at the lower Court when the record of appeal is alleged to be incompetent?

Permit to quote extensively, the decision of the learned Magistrate Court when he held at pages 102-103 of the records that:
”Before considering this based on the above promise, I will pause a while to consider a pertinent question raised by the learned counsel of the defendant in the course of his address. It was agreed in favour of the defendant and rightly also to the extent that an amended statement of claims supersedes the original statement of claims once it is filed, however there is no law that says that a statement of claim must be signed before it become valid, I am of the humble view that once such a claim has the name of the claimant/Sir Sohulu on the document such named suffix, moreso this Court is a Court of summary jurisdiction where issues of technicalities should not

be allowed to defeat the course of justice therefore such oversight should be ready. In other words it is not the intention of this Court to allow the issues technicalities to override the necessity of ensuring that a substantive justice is done in this case. For matter to be determined on its merit.” (Underlining mine).

I shall seek to do a legal x-ray of the above pronouncement of the learned Magistrate vis-a-vis the position of the law. Let me be quick to add that from the above pronouncement, it is not in doubt that the Plaintiff now Appellant in the instant appeal amended his claim at the Magistrate trial Court. See Page 108 of the Record of Appeal. It is also crystal clear that the learned trial Magistrate conducted the case and relied on the unsigned amended claim in its judgment.
Now, whether or not the above pronouncement accords with the dictates of our legal jurisprudence is another thing to be considered by this Honourable Court.
The law is now settled that a process to be filed in Court must be signed by the litigating party or a legal practitioner on his behalf. See FIRST BANK OF NIGERIA PLC V. ALHAJI SALMONU MAIWADA (2013) 5 NWLR (PT. 1348) 448.

The Supreme court, Per Rhodes-Vivour, J.S.C in BANK OF INDUSTRY LTD. V. AWOJUGBAGBE LIGHT INDUSTRIES LTD. (2018) 6 NWLR (PT. 1615) 220 AT 231 held thus:
?Where a legal practitioner prepared a process filed in a Court of law, it has been recommended that the process should be signed as follows: ”All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of legal firm.? See also SLB CONSORTIUM LTD. V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (PT. 1252) 307 AT 337-338.
It is also settled law that the mere typing of a person ‘s name on a process does not mean that the process has been signed by that person. See KEYSTONE BANK LIMITED V. J.O. ADEBIYI & SONS LTD (PT. 1439) 98 AT 110-112.
I have taken a look at the Amended claim at pages 108-110 of the record and it is crystal clear that same was not signed. Flowing from the above judicial pronouncements, I do not agree with the submission of counsel for the appellant that signature

includes a mere typed name of a legal practitioner on the amended claim amount to signature without more. Without any hesitation, I hold that this argument has no basis in law and logic.
The signing of the Amended claim by the Plaintiff or his counsel is to authenticate the reliefs specified therein. Without the signature of the Plaintiff or his counsel on the Amended Claim, nobody can legally be attached with the responsibility for the claim or relief endorsed therein. Therefore, the Amended claim, without an authentication by the Plaintiff or his counsel, is worthless and void ab initio. It is settled law that the content of a document can only be authenticated by its maker signing it. It is also trite that an unsigned document has no efficacy in law and it is valueless. OMEGA BANK (NIGERIA) PLC V. O.B.C LIMITED (2005) 8 NWLR (PT. 928) 547.
It is thus the law that an initiating process whether writ of summons, originating summons, notice of appeal or the Amended Claim as in the instant suit must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute thus an Amended claim not signed

by a Plaintiff or his counsel is invalid as there is no stamp of authority or authentication. The trial magistrate Court erred in law when it held that there is no law that says that a statement of claim must be signed before it comes valid.
As a matter of fact, the trial magistrate Court had no jurisdiction to grant the reliefs of the Plaintiff in the suit since there was no valid originating process, that is, the Amended claim before it. The law is settled that where an originating process is fundamentally defective and incompetent, as in this case, any trial based on such invalid originating process is a nullity. See CHUKWUDI NNALIMUO & 3 ORS. V. SUNDAY ELODUMUO & 2 ORS (UNREPORTED APPEAL NO. SC. 278/2005 DELIVERED ON 12/01/2018) PER AUGIE, JSC. IN THE CASE OF BASHIR GIDAN KANAWA V. ALHAJI SANI MAIKASET (2007) 10 NWLR (PT. 1042) 283 AT 297, PER ARIWOOLA, JCA (as he then was), stated, inter alia, as follows:
?It is trite that where a Court takes upon itself to exercise a jurisdiction which it does not possess its decision amounts to nothing.?

On the strength of the foregoing, I therefore resolve issue one (1) in favour of the Respondents and against the appellant.

The final issue for consideration is whether the Court ought to have entertained the appeal of the Respondent at the lower Court when the record of appeal is incompetent.

It is still good law that it is the duty of an Appellant to ensure that the record of appeal reaches the appellate Court on time. A record of appeal compiled and transmitted to an appellate Court out of time in the absence of an order of the Court extending the time within which that should have been carried out is patently incompetent transiting into absence of valid record of appeal before the Court. TOTAL E & P (NIG) LTD v. JONATHAN & ANOR (2018) LPELR-44691(CA)

Learned counsel to the Appellant submitted that the record of appeal before the Court below sitting in its appellate jurisdiction, having been compiled in the year 2011 when the judgment of the magistrate trial Court was delivered on the 30th day of June, 2011 was incompetent and fundamentally defective having not compiled and transmitted within time, hence same could have not been validly relied on by the Court.
?I am of the considered opinion that it is not enough for

counsel to the Appellant to state in the passing that record of appeal in the immediate Court below was compiled out of time without no extension of time sought before such compilation without more.
Counsel to the Appellant in his both briefs did not state when the records ought to have been compiled as provided in the extant rules of the Anambra State High Court. Learned counsel to the Respondents raised a crucial issue in paragraph 5.01 of his brief of argument stating that the High Court of Anambra State (Civil Procedure) Rules, 2006 made no provision as to the time within which the record of appeal should be compiled and transmitted to the High Court from the magistrate Court.
With the right to Reply on points of law with respect to the aforementioned crucial point, it only accords with the dictates of common sense and due diligence for counsel to the Appellant to provide the relevant rules of the High Court of Anambra State (Civil Procedure) Rules, 2006 providing the time within which the records of appeal should be compiled and transmitted to the immediate Court below. I do not know whether it the expectation of counsel that this Court will

embark on a voyage of discovery on this issue. If that was his expectation, I humbly decline to embark on such. Be that as it may, even if it appeared that the said record was truly compiled out of time, I am surprised that learned counsel to the Appellant glossed over this crucial issue by failing to have come before the immediate Court below by way of preliminary objection challenging same.
I am of the considered opinion that it seems too late in the day for counsel to raise such issue of non-compilation of records within time after it is undoubtedly clear that he took fresh steps which could be interpreted as a waiver. Equity aids the vigilant and not the indolent and going by the popular saying that if you sleep on your rights, your rights slips away from you.
In the case ofARIORI & ORS. V. ELEMO & ORS. REFERRED TO IN THE CASE OF ODU’A INVESTMENT CO. LTD. V. TALABI (1997)10 NWLR (PT.523) 1; (1997)7 SCNJ. 600, IDIGBE, JSC. AT PAGE 22 of the NSCC Report, defining the word waiver, had this to say:-
“By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it

therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.” “Per Ogbuagu, J.S.C. (P.84, Paras.C-F)?
To further buttress the above judicial principle, the Supreme Court in the case of SAUDE V. ABDULLAHI (1989) LPELR-3017 (SC) AT G4 (C-E) held as follows:
?The Courts have consistently held in several decided cases that an objection to a procedural irregularity in an action, to be countenanced, must be taken at the commencement of the proceedings or at the time when the irregularity arises. After the party raising and relying on the irregularity to set aside the action had taken steps in the proceedings aware of the irregularity, it will be too late and against the interest of justice to raise and rely on the objection.?
It is the law that where a party is aware of a non-compliance with the applicable rules of Court, such a party is duly bound to act timeously and before taking any further step in the proceedings, that party has waived his right of complain.
?Looking at this issue from another judicial telescope, even if

it was true that the records were compiled out of time without the leave of the lower Court to regularize same, the question I ask myself is that, what injustice has the Appellant suffered from this procedural defect? If the Appellant’s complain was centered on the fact that the appeal before the lower Court was decided on the basis of an incomplete records, maybe I would have been inclined to buy his submissions.
I am of the considered opinion that the Appellant had the right to have raised an objection challenging the record before the Court. Instead of doing this, he took fresh steps which to me seems like a waiver. To add to the woes of the Appellant, he has not placed before this Court that he has suffered an injustice as a result of the records compiled out of time.

On the strength of the foregoing, I hereby discountenance this issue and resolve same in favour of the Respondents.
On the whole, this appeal lacks merit and it is hereby accordingly dismissed. The judgment of J.C. Iguh J. in Suit No. A/3A/2011 delivered on 24th March 2014 is hereby affirmed. No order as to cost.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead

Judgment prepared by my learned brother, ABUBAKAR SADIQ UMAR, JCA dismissing this as lacking in merit.

The Courts are not allowed to assume jurisdiction where the originating process possesses disabling features in law.

Further, where is not apparent on the face of a process, i.e. ex-facie, the party who alleges incompetence has the duty to assemble and present to the Court, the facts which render the process incompetent. These principles have been well-fortified by decisions of the Court cited in the lead Judgment. I need not repeat them here. I adopt the lead judgment as mine and I too hereby dismiss the appeal.
No order was made as to cost in the lead Judgment. I too make no such order.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal lacks merit and is hereby dismissed. I abide by the consequential orders made therein.

Appearances:

Chief Emma Obum with him, J.O. J. Ugoh, Esq.For Appellant(s)

Emeka Nwankwo, Esq.For Respondent(s)

Appearances

Chief Emma Obum with him, J.O. J. Ugoh, Esq.For Appellant

AND

Emeka Nwankwo, Esq.For Respondent