GOJI v. BANU (2022)

GOJI v. BANU

(2022)LCN/16741(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, July 21, 2022

CA/YL/158/2017

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

HON. JUSTICE M. B. GOJI (RTD) APPELANT(S)

And

UMARA K. BANU RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL COURT HAS JURISDICTION TO DETERMINE AN ISSUE RAISED BY AN APPELLANT WHERE THERE IS NO VALID RECORD OF APPEAL

With no valid record of appeal it follows that there is no jurisdiction or platform upon which the Court can stand, and determine the issues as raised by the said appellant, or even the rest of the issues as raised by the respondent in this appeal. My stance is emboldened by the decision of the apex Court in the case of Dr. Okey Ikechukwu vs. FRN. & Ors (2015) 7 NWLR (Pt. 1457) 1, per Nweze, JSC. where at p. 21, paras. B-G and P. 22, para. C, he enjoined that: As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent’s Preliminary Objection to the competence of the Appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal. PER AKINBAMI, J.C.A.

WHETHER OR NOT AN INCOMPETENT PROCESS CAN BIRTH A COMPETENT PROCESS

This principle of law was given judicial imprimatur in the case of IFETETO VENTURES LTD & ANOR V. ENTERPRISE BANK LTD (2014) LPELR-23103(CA), wherein this Honourable Court aptly held thus:
“It is a fundamental principle of law, the application of which has become trite, that an incompetent process cannot birth a competent process. The colloquial legal phrase is you cannot place something on nothing and expect it to stand.” (Refers Macfoy v. UAC (1962) AC 152 at 160). PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Adamawa State High Court sitting in Yola, in Suit No. ADSV/120/2010 between the Appellant as the Defendant and the Respondent as the Plaintiff, delivered by Hon. Justice Nathan Musa on the 19th day of June, 2017 wherein judgment was entered in favour of the Respondent.

STATEMENT OF FACTS
The Respondent as the Plaintiff at the trial Court claimed against the Appellant who was the Defendant vide a Writ of Summons and the Statement of Claim dated 6th day of October, 2010 as follows:
a) An order of the Hon. Court directing the Defendant to pull down the wall erected by the Defendant on the Plaintiff’s land.
b) Perpetual Injunction restraining the Defendant by himself, his agents, privies and servants from any act of trespass or further act of trespass on the Plaintiff’s land.
c) Two Million Naira damages against the Defendant for trespass to the Plaintiff’s land.

The Appellant as the Defendant filed a Statement of Defense on the 27th day of January, 2011.

The case was struck out for want of diligent prosecution on the 9th day of November, 2016 and relisted on the 11th day of January, 2017 upon application by the Respondent’s Counsel.

Upon the death of Late Hon. Justice B. P. Lawi, the trial Judge assigned the case to himself when he was the acting Chief Judge.

The Respondent as the Appellant, applied through his Counsel that the trial Judge who has assigned the case to himself, should disqualify himself for real likelihood of bias but the application was not granted.

On 05/04/2017, when the case came up for hearing, Counsel for both parties was absent and the case was adjourned to 26/04/2017.

Defendant’s Counsel met the Registrar of the Court the following day i.e. 06/04/2017 and inquired as to when the case and other two (2) sister cases were adjourned to, and he was erroneously informed by the Registrar that the cases were adjourned to 27/04/2017. He recorded same in his case diary.

Learned Counsel for the Defendant, was later informed that the three (3) cases including this case came up on 26/04/2017 and evidence was taken and the cases for the Plaintiff and the Defendant closed.

By a Motion dated and filed on 11/05/2017, the Appellant as Defendant brought an application to open his defense in the case but, the application was not heard despite the fact that its pendency was brought to the notice of the trial Court Judge four days, after the case was adjourned for judgment.

The trial Court delivered its judgment on 19/06/2017, and granted all the reliefs sought by the Plaintiff.

Dissatisfied with the judgment, the Appellant filed his Original Notice of Appeal dated 30th June, 2017, which was later Amended, and was Further Amended dated 11th January, 2021 and was deemed as properly served on the 9th March, 2021 challenging the judgment of the trial Court delivered on 19/06/2017 in Suit No. ADSY/120/2010.

Aggrieved, the Appellant filed his Notice of Appeal, wherein he complained and appealed on four grounds.

The reliefs sought from this court are:
1. ORDER allowing this appeal.
2. AN ORDER dismissing the Claim of the Respondent in the Court below.

The Appellant’s brief settled by Evaristus Paul Esq. was adopted by the learned counsel for the Appellant along with the Reply brief. The learned counsel urged the Court to dismiss the preliminary objection and hear the substantive appeal. He then urged the Court to allow the appeal.

At the hearing of this appeal on the 10th May, 2022, J.A Oguche Esq. Learned counsel for the Respondent drew this Court’s attention to their Notice of Objection duly filed in the Registry of this Court. The Respondent raised objection to the competence of the present appeal on the following Grounds, to wit:
1. The appeal is incompetent in law, in that it has no competent and/or valid Record of Proceedings to sustain it.
2. The appeal is incompetent in law, in that there is no relief whatsoever touching on the judgment being appealed against.
3. Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.
4. Grounds 1, 2, 4 &. 7 of the Grounds of Appeal, as well as Issues 1, 2,4 &. 7 distilled there from which all are complaints against interlocutory decisions of the trial Court are incompetent in law, in that they were filed outside the 14 days period prescribed by Section 24(2)(a) of the Court of Appeal Act.
5. Grounds 1, 2, 4 &. 7 of the Grounds of Appeal as well as Issues 1, 2, 4 &. 7 distilled therefrom are incompetent as they do not arise from the judgment of the trial Court being appealed against.
6. Ground 5 of the Grounds of Appeal as well as Issue 5 distilled therefrom are incompetent, in that they are complaints against an obiter dictum of the learned trial Judge rather than the ratio decidendi of the judgment of the trial Court.
7. Ground 6 of the Grounds of Appeal as well as Issue 6 distilled therefrom are incompetent as they are complaints against the admissibility of documents that are ordinarily admissible in law.

ARGUMENT ON GROUND 1 OF THE OBJECTION:
Learned counsel for the Respondent on ground one contended that this appeal is incompetent in law, in that it has no competent valid Record of Appeal to sustain it.

In that, the Record of Appeal would clearly and undeniably show that, same was compiled and transmitted to this Court on the 12th day of July, 2021 by the Appellant with respect to SUIT NO: ADSY/117M/2016. Learned counsel referred this Court to the cover page, the Index page, the Schedule of fees page as well as the Appellant’s Statement page. That a cursory look at the Further Amended Notice of Appeal, however undoubtedly reveal that, same was filed by the Appellant against the judgment delivered in SUIT NO: ADSY/120/2010. See paragraph 2, of page 1 of the said Further Amended Notice of Appeal, wherein the Appellant SPECIFICALLY states as follows:
“PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: the whole decision of Hon. Justice Nathan Musa delivered on the 19th day of June, 2017, in Suit No. ADSY/120/2010 between Umara K. Banu Vs Hon. Justice M.B. Goji.”

It is submitted that the purported Record of Appeal which was compiled and transmitted to this Court by the Appellant on the 12th day of July, 2021 is incompetent in law, and therefore incapable of sustaining APPEAL NO: CA/YL/158/2017 in that it is in respect of Suit No ADSY/117m/ 2016. The net effect therefore is that APPEAL NO: CA/YL/158/2017 is incompetent in law, as it has no competent or valid Record of Appeal to sustain it. This is so because the law is well settled beyond equivocation that, an incompetent Record of Appeal cannot sustain an appeal. See the case of TOTAL E & P (NIG) LTD VS. JONATHAN &. ANOR (2018) LPELR-44691(CA), PAGES 12-13, PARAGRAPH C.

It is for this reason therefore that counsel urged this Court to strike out APPEAL NO: CA/YL/158/2017, for incompetence, as the Record of Appeal upon which it is premised is incompetent in law. The law is trite that, you cannot place something on nothing, and expect it to stand. It must collapse. This much is illustrated by the latin maxim: ex nihilo nihil fit, meaning “Out of nothing, Nothing comes”.

This principle of law was given judicial imprimatur in the case of IFETETO VENTURES LTD & ANOR V. ENTERPRISE BANK LTD (2014) LPELR- 23103 (CA), wherein this Honourable Court aptly held thus:
“It is a fundamental principle of law, the application of which has become trite, that an incompetent process cannot birth a competent process. The colloquial legal phrase is you cannot place something on nothing and expect it to stand. See Macfoy v UAC (1962) AC 152 @ 160).”

On the strength of the above judicial authorities, counsel urged this Court to uphold Ground 1 of the Respondent’s objection and strike out APPEAL NO: CA/YL/158/2017for being grossly incompetent.

ARGUMENT OF GROUND 2 OF THE OBJECTION
It is submitted that, the appeal is incompetent in law, in that there is no relief whatsoever touching on the judgment being appealed against.

At the sixth page, of the Further Amended Notice of Appeal (which the Appellant mistakenly numbered as page 12), only two reliefs are embossed thereon, thus:
“RELIEFS SOUGHT
1. AN ORDER allowing the Appeal.
2. AN ORDER dismissing the Claim of the Respondent in the Court below. “

Indeed, a cursory glance at the above quoted reliefs will show that, there is no relief whatsoever in the Further Amended Notice of Appeal, touching on the judgment being appealed against. In other words, the Appellant is not seeking for any order with respect to the judgment being questioned or challenged. This fundamental flaw/defect, is fatal, thus vitiating the appeal. See the case of FAYEMI & ANOR VS. ONI & ORS (2010) LPELR- 4145(CA), PAGES 99-100, PARAGRAPH G
“It is trite and elementary to state that a notice of appeal/cross-appeal is akin to a writ of summons which is an originating process. It is the relief sought on such process that determines the nature of the claim or cause of action and also its competence. It follows without saying therefore that in the absence of a relief there cannot be any cause of action upon which the Court is to adjudicate. In other words, a Court’s jurisdiction is exercisable where there is clear and identifiable relief upon which the action is anchored.”

The decision in FAYEMI & ANOR VS. ONI & ORS (SUPRA) was followed by this Honourable Court in the latter case of ABUBAKAR VS. DANKWAMBO & ORS (2015) LPELR-40623(CA), PAGE 2, PARAGRAPH C, wherein it was emphatically held as follows:
“It is trite law that the relief in a Notice of Appeal is founded on the grounds of appeal couched: ANAMMCO VS. FIRST MARINA TRUST LTD (1999) LPELR (5341) 1 AT 13. It is rudimentary and handbook law that a Notice of Appeal is akin to a writ of summons and the relief sought therein determines the competence of the Court to adjudicate. See FAYEMI VS ONI (2010) LPELR (4145) 1 at 99.”

It is submitted that the incongruity of the Further Amended Notice of Appeal, not containing a relief touching on the judgment being appealed against is such that, assuming without conceding that the appeal succeeds, this Honourable Court will be UNABLE to make any order regarding or concerning the judgment being complained against because there is no relief to that effect in the Further Amended Notice of Appeal. This is so because this Honourable Court will not grant a relief not sought for by the Appellant. See the case of U. O. O (NIG) PlC VS. OKAFOR & ORS (2016) LPELR-41507(CA), PAGES 34-37, PARAGRAPH F. It is on the strength of these judicial authorities that counsel urged this Court to uphold Ground 2 of the Respondent’s objection and strike out APPEAL NO: CA/YL/158/2017 for being grossly incompetent. See AFRICAN SONGS & ANOR V. KING SUNNY ADE (2018) LPELR-46184 (CA).

ARGUMENT OF GROUND 3 OF THE OBJECTION
On Ground 3 of the objection, learned counsel contended that Grounds 1, 2, 4 &. 7 of the Grounds of Appeal as well as Issues 1, 2, 4 &. 7 distilled therefrom are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.
It is submitted that, at paragraphs 1 & 2, of page 1 of the Further Amended Notice of Appeal, the Appellant SPECIFICALLY CIRCUMSCRIBED the limit of his appeal thus:
“1. TAKE NOTICE that the Appellant being dissatisfied with the final decision of the High Court of Justice Adamawa State delivered on 19/06/2017, do hereby appeal to the Court of Appeal upon Grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4. AND THE APPELLANT FURTHER states that the names and addresses of the persons directly affected by the Appeal are set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: the whole decision of Hon. Justice Nathan Musa delivered on the 19th day of June 2017 in Suit No. ADSY/120/2010 between Umara K. Banu Vs Hon. Justice M.B. Goji.

It is submitted that by virtue of the above explicitly quoted wordings of paragraph 2 of the Further Amended Notice of Appeal, the Appellant has UNDENIABLY and UNQUESTIONABLY limited the scope of his appeal to just the decision of 19th day of June, 2017. And a careful perusal of the Further Amended Notice of Appeal, would show irrefutably that Grounds 1, 2, 4 & 7 of the Grounds of Appeal, as well as Issues 1, 2, 4 & 7 distilled therefrom are complaining against issues outside the judgment of 19th day of June, 2017, which is being purportedly appealed against, thereby taking them outside the scope/purview of the Further Amended Notice of Appeal and thus rendering them incompetent in law. This Court is urged to so hold

In the case of ECOBANK VS. UPRIGHT INCON LTD (2020) LPELR- 49768(CA), PAGES 6-9, PARAGRAPH F, this Honourable Court aptly stated as follows:
“The amended notice of appeal clearly states the part of the judgment of the trial Court that is complained against in this appeal in keeping with Order 7 Rule 2(1) which provides thus- 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 such parties. “…..The part of the judgment that granted relief 1 of the counterclaim and failed to grant relief 2 of the counter-claim, is not part of the judgment the notice of appeal indicated this appeal is complaining against. By indicating the specific parts of the judgment the appeal complains against, the appellant gave notice that it is not complaining against the whole judgment, and that it accepts as correct, conclusive and binding the parts of the judgment outside the parts the appeal complains against. Therefore, any ground of appeal or issue for determination that complains against any part of the judgment of the trial Court outside the part listed in the notice of appeal as the part complained against by the appeal is incompetent.”

Similarly, in the case of AKAMNONU & ANOR VS. IBENYE (2016) LPELR- 41023 (CA) PAGE 7) PARAGRAPH D, this Honourable Court also held quite beautifully thus:
“It is trite law that in an appeal, a party cannot argue against any part of the judgment that is not appealed against. See Awote & Ors v. Owodunni & Anor (1987)5 SCI and Sparkling Breweries Ltd & Ors. v. UBN Ltd (2001) 7 SC (pt. 11) 146.”

It is on the strength of these judicial authorities that, counsel urged this Court to uphold Ground 3 of the Respondent’s objection and strike out Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom for being grossly incompetent.

ARGUMENT OF GROUND 4 OF THE OBJECTION
Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom which all are complaints against interlocutory decisions of the trial Court are incompetent in law, in that they were filed outside the 14 days period prescribed by Section 24(2)(a) of the Court of Appeal Act.
Learned counsel submitted that Grounds 1, 2, 4 & 7 of Appellant’s Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom are not complaints against the judgment of the trial Court delivered on the 19th day of June, 2017 but undeniably complaints against interlocutory decisions of the trial Court.

It is submitted that, the law has now become well settled beyond equivocation that, an appeal or a complaint against interlocutory an interlocutory decision of a High Court (the trial Court), can only be competently filed within 14 days, of the delivery of the said interlocutory decision. See Section 24(2)(a) of the Court of Appeal Act, which expressly provides thus:
“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

It is submitted that it is abundantly clear that Grounds 1, 2, 4 & 7 of the Appellant’s Grounds of Appeal, are complaints against the interlocutory decisions of the trial Court, which appeal ought to have been filed within 14 days of the delivery of the said decisions, the simple question therefore is whether the said Grounds 1, 2, 4 & 7 are competent in law, same having been filed outside the statutorily prescribed period of 14 days, without either LEAVE of this Honourable Court or that of the trial High Court? The answer to this poser, counsel submitted is a resounding No. See NWAOLISAH VS. NWABUFOH (2011) 199 LRCN 21 AT 26, the Supreme Court held among other things thus:
” …. Leave of Court, where it is required, is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court.”

See ABDUL VS. CPC & ORS. (2013) 220 LRCN (PT. 1) 1 AT 9 RATIO 4, the Supreme Court further re-iterated this principle when it held thus:
“Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter.”

In AJOBENA VS. MUJAKPERUO & ORS (2014) LPELR-23209(CA), this Honourable Court had this to say:
“Doubtless, a party can include in one appeal, appeals against a ruling and judgment in one exercise in order to avoid unnecessary delay by appealing separately, provided that where such appeals are out of time, the proper procedure is complied with in order to meet the unavoidable technicalities involved. See OGIGIE vs. OBIYAN (1997) 10 SCNJl at 15 and UBA PLC vs. OSULA (2002) LPELR -7176 (CA) 1 at 13.
So technically, the learned Counsel for the Appellant is on a strong wicket when he submitted that he was at liberty to complain against any earlier decision/order made in the course of proceedings before the final judgment. I am however quick to add that in order for such complaint to be validly taken along with the appeal against the final judgment, such an appeal against the earlier decision must have been made in a timely manner and upon due compliance with all the requirements attendant thereto, including getting leave of Court to appeal out of time, if necessary.
On the peculiar facts of this matter, the decision of the lower Court of 26th June, 2006 striking out the Appellant’s motion filed on 23rd June, 2006 is an interlocutory decision. By Section 24 (2) (a) of the Court of Appeal Act, an appeal against an interlocutory decision is to be brought within fourteen days. The notice of appeal in this matter was filed on 17th August, 2006, more than fourteen days after the decision of the lower Court of 26th June, 2006 and there was no order for extension of time granted to the Appellant in that regard. The proper procedure was therefore not followed in order to meet the unavoidable technicalities involved: UBA PLC vs. OSULA (supra). The law is that for a ground of appeal to be competent, it must arise from the judgment or decision appealed against. See NGIGE vs. OBI (2006) 14 NWLR (PT 999) 1 at 240 and EZE SUNDAY vs. ONYEZE (2010) LPELR – 4985 (CA) 1 at 12 – 13. Since grounds 5 and 6 of the Grounds of Appeal do not arise from the decision of 3rd August, 2006, which is the decision appealed against as expressed in the Notice of Appeal, the said grounds of appeal are incompetent and must be struck out. Accordingly, the preliminary objection of the 1st – 7th Respondents succeeds in part and grounds 5 and 6 of the grounds of appeal are hereby struck out for being incompetent.”

Premised on these judicial authorities therefore, counsel urged this Court to uphold Ground 4 of the Objection and strike out Grounds 1, 2, 4 & 7 of the Grounds of Appeal for being grossly incompetent.

Learned counsel noted that at page 3, of his Brief of Argument, the Appellant formulated seven issues for determination, wherein he distilled Issue 1, from Ground 1, Issue 2 from Ground 2, Issue 4 from Ground 4 and Issue 7 from Ground 7, respectively.

It is submitted that Appellant’s Issues 1, 2, 4 & 7 are distilled by him from Grounds 1, 2, 4 & 7 of the Grounds of Appeal, it therefore stands to reason that, the incompetence of the said Grounds 1, 2, 4 & 7 has automatically vitiated Issues 1, 2, 4 & 7 distilled therefrom. He urged this Court to so hold.

It is for this reason therefore that counsel urged this Court to strike out the said Issues 1, 2, 4 & 7 of the Issues for determination for being incompetent.

ARGUMENT OF GROUND 5 OF THE OBJECTION
Grounds 1, 2, 4 & 7 of the grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom are incompetent as they do not arise from the judgment of the trial Court being appealed against.

It is submitted that Grounds 1, 2, 4 & 7 of the Grounds of Appeal are, incompetent in law, as they do not arise or flow from the judgment of the trial High Court contained at pages 247-251 of the Record of Appeal.

The law is well settled beyond equivocation that in an appeal before an appellate Court (as in the case at hand), the parties and the appellate Court are strictly bound by the record of appeal. See the case of IDRIS VS. ABUBAKAR (2011) ALL FWLR (PT. 557) 733 AT 738 RATIO 7. As can be seen, a comparative analysis of Grounds 1, 2, 4 & 7 and the judgment of the trial Court at pages 247-251 of the Record of Appeal would show irrefutably that the said Grounds 1, 2, 4 & 7 of the Grounds of Appeal do not arise or flow from the judgment of the trial High Court being appealed against.
In ETIEMONE V. APINA (2019) LPELR-47258(CA), this Court held as follows:
“I have gone through the decision of the trial Court under challenge, I cannot find any part of the decision where illegality relating to the interest claimed was raised and determined by the learned trial Judge. The law is trite that an appeal can only lie against what was decided by the lower Court. An appeal against a judgment on a matter not decided in the judgment appealed against is incompetent and not valid for consideration by the appellate Court. See FCMB V. Benbok Ltd (2014) LPELR 23505 and Onyia V. Mbiko & Anor (2014) LPELR 23028. In the light of the above, arguments of counsel in support of an issue for determination must as of necessity relate to the issue and the decision appealed against. A counsel is not permitted in his argument on an issue to delve into matters of fact or law that were never considered by the trial Court. Counsel ought to restrict himself in matters in controversy that formed the ratio of the trial Court’s decision. The issue of illegality of the interest charged was an issue raised and canvassed at the trial Court, but it did not form part of the Court’s decision and as such ought not be strenuously argued by counsel as he did in this case.”

It is submitted that having successfully established that Grounds 1, 2, 4 & 7 of the Grounds of Appeal are incompetent for having not arisen from the judgment being appealed against, therefore Issues 1, 2, 4 & 7 of the Issues for determination are, incompetent in law and liable to be struck out, same having been distilled from the incompetent Grounds 1, 2, 4 & 7 of the Grounds of Appeal. This Court is urged to so hold.

The law is well settled that, an issue for determination which is distilled from the ground of appeal, which does not flow or arise from the judgment or ruling being appealed against, is incompetent since the ground from which it is distilled is incompetent ab initio. See the case of ABDULLAHI & 2 OTHERS VS. THE STATE (2013) 224 LRCN (PT. 2) 151 AT 156 RATIO 1, wherein the Supreme Court held thus:
“The principle must be restated at this stage that an Issue for determination in an appeal must relate to a Ground of Appeal which challenges the validity of the ratio of the decision being appealed against. Where the Ground of Appeal issue which purports to have been distilled therefrom do not arise from the decision appealed against both are incompetent.
Put differently, an appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point there cannot, therefore, possibly be an appeal against what has not been decided.”

ARGUMENT OF GROUND 6 OF THE OBJECTION
Ground 5 of the Grounds of Appeal as well as Issue 5 distilled therefrom are incompetent, in that they are complaints against an obiter dictum of the learned trial Judge rather than the ratio decidendi of the judgment of the trial Court.
It is submitted that, the comment of the learned trial Judge, which is being complained about by the Appellant in Ground 5, of his Grounds of Appeal, is a mere comment MADE BY THE WAY by the learned trial Judge, which to all intents and purposes, amounts to nothing more than an obiter dictum. This fact is made more manifest by the deliberate choice of words of the learned trial Judge in making the said obiter dictum. He ended the comment by saying “It is trite law that a plaintiff must succeed on the strength of his case and not on the weakness of the defence. Therefore the fact that defendant did not file a statement of defence, or call evidence, the plaintiff still has the onus to prove his claim in order to warrant judgment in his favour. The maxim “he who asserts must prove is still applicable in our jurisprudence. I shall now consider the evidence adduced by the plaintiff with a view to seeing whether he has proved his claim, on preponderance of evidence or on balance of probability as required by law.“ See page 249 lines 14-21 of the Record of Appeal.

Learned counsel submitted that from a careful reading of the above quoted statement, it is inarguable that the said statement over which the Appellant has so much dwelt on, and made a Ground of Appeal (i.e. Ground 5) is obviously a mere obiter dictum of the trial Court. He urged this Court to so hold.

It is therefore apposite to ask this pertinent question; Is the Appellant permitted in law to make the said obiter dictum Ground 5 of the Grounds of Appeal and further distill Issue 5 therefrom? The answer to this poser, is a resounding No. This is because the law has become well established that a ground of appeal, should represent the complaint of an Appellant against the ratio decidendum or decidendi of the judgment appealed against, and not the obiter dictum or dicta of such judgment. See the case of NGIGE V. OBI (2006) 14 NWLR (PT.999) 1 at 164 PARAGRAPHS A-C, wherein it was held thus: “A comment or statement of the Court, which is not necessary for the determination of the issues joined in the parties pleadings, is an obiter. It has no binding authority and cannot be the subject of an appeal.”

In the case of GABARI VS. ILORI (2002) VOL. 47 WRN 55 AT 58 RATIO 4, it was held thus: “A ground or grounds of appeal, must relate to the decision of the Court, and should be a challenge to or an attack on the validity of the ratio decidendi in the judgment…. It is settled that appeal or more specifically grounds of appeal must relate to the decision or ruling or judgment of the Court…. The grounds should not be drafted in nubibus.”

The Supreme Court in OLEKSANDR &. ORS VS. LONESTAR DRILLING CO. LTO &. ANOR (2015) LPELR-24614 (SC), PAGES 69-70, PARAGRAPH E, stated as follows:
“It has become trite that, an obiter dictum is not covered within the ambit of Section 233(2) and (3), of the Constitution as those appealable areas for the consideration of an appellate Court. See Obatoyinbo v. Oshatoba (1996) 15 NWLR (pt.450) 531 or 549; Oni v. Fayemi (2008) 8 NWLR (pt.1089) 400 at 427. The law is indeed well settled that the reasoning of a Judge while on the journey in getting to the destination of a judgment or ruling could make some remarks along the way assisting him on a smooth sail, taking into his stride the peculiar style of the particular Judge, these accessories remain what they are tools to propel a process and never the substantive basis of the decision and so cannot be ground for appeal upon which an issue for determination would be anchored.”

Learned counsel submitted that, having successfully established that Ground 5 of the Grounds of Appeal, is incompetent for being a complaint against a mere obiter dictum of the learned trial Judge, it therefore goes without saying that Issue 5, of the Issues for determination is, incompetent in law, and liable to be struck out, same having been distilled from an incompetent Ground 5 of the Grounds of Appeal. This Court is urged to so hold.

This is so because the law has now become well settled that an issue for determination which is distilled from the ground of appeal which does not flow, or arise from the judgment or ruling being appealed against, is incompetent since the ground from which it is distilled is incompetent ab initio. See the case of ABDULLAH I & 2 OTHERS VS. THE STATE (SUPRA).

ARGUMENT OF GROUND 7 OF THE OBJECTION
Ground 6 of the Grounds of Appeal as well as Issue 6 distilled therefrom are incompetent as they are complaints against the admissibility of documents that are ordinarily admissible in law.
It is submitted that, it is not in doubt whatsoever that Ground 6 of the Grounds of Appeal, is a complaint against the admissibility of Exhibits A, B & C, on the ground that they were not frontloaded by the Respondent. It is not also in doubt that the said Exhibits A, B & C are ordinarily admissible in law, but according to the Appellant, they are admissible upon the fulfillment of the condition of being frontloaded. In response to Appellant’s argument, learned counsel for Respondent submitted that, since Exhibits A, B & C are ordinarily admissible in law, the Appellant is by law barred from raising a Ground of Appeal challenging them. To that end therefore, Ground 6 of Appellant’s Ground of Appeal is incompetent in law and therefore liable to be struck out. This Court is urged to so hold. In the case of MICHAEL v. ACCESS BANK (2017) LPELR- 41981(CA), this Court aptly held as follows:
“I thought I must point it out at once that in law whether’ a complaint against inadmissible evidence being admitted by a trial Court should be raised on appeal or not will depend on whether the evidence so admitted by the trial Court was one admissible on proper foundation and no such foundation was laid or one which is rendered inadmissible by law and thus not admissible in evidence in any event. Where the evidence is of the former category and admitted in evidence without proper foundation but without any objection, it will be too late in the day for a party who had not objected to its admissibility to do so for the first time on appeal. Where however, the evidence belongs to the latter category of being inadmissible in any event or rendered inadmissible by law, an objection can validly be taken against its admissibility for the first time on appeal even where it was not objected to at the trial. This is so because in law a Court of law is under a duty to act only on admissible evidence in deciding matters before it. See Olukade V. Alade (1976) 1 SC 83. See also Esso West African Incorporated v. Alii (1968) NMLR 414; Ajayi v, Fisher 1 FSC 97; Ugbala v. Okorie (1975) 12 SC 13; Yassin v. Barclays Bank (1968) 1 ALL NLR 171; Kessen Nig. Ltd V. Savanah Bank Nig. Ltd (1995) 9 NWLR (PT. 421) 1.”

In GOODWILL & TRUST INVESTMENT LTD. & ANOR v. WITT & BUSH LTD (2011) LPELR-1333(SC), PAGE 22, PARAGRAPH B, the Supreme Court laid the matter to rest in these beautiful words:
“…..In a trial by a Judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions. In the former class of cases, the evidence cannot be acted upon even if parties admitted it by consent, and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the lower Court (although the evidence was admitted in the lower Court without objection), in the latter class of cases; if the evidence was admitted in the lower Court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial Court to act on it, and the Court of Appeal will not entertain any complaint on the admissibility of such evidence.”

Learned counsel submitted that having successfully proven that Ground 6, of the Grounds of Appeal, is incompetent in law, it therefore goes without saying that, Issue 6, of the Issues for determination is incompetent in law, and liable to be struck out, same having been distilled from an incompetent Ground 6 of the Grounds of Appeal. This Court is urged to so hold. See the case of ABDULLAHI &. 2 OTHERS VS. THE STATE (SUPRA).

On the whole, counsel urged this Court to uphold the Seven Grounds of Objection, and hold that the present appeal is incompetent in law and thus liable to be struck out.

The Appellant responded to the seven grounds of appeal thus:
GROUND ONE
That the appeal is incompetent in law, in that it has no competent or valid Record of Proceedings to sustain it.
Learned counsel submitted that, there is a valid Record of Proceedings transmitted to this Honourable Court on 12th July 2021, and was certified by the trial Court Registry on 1st April 2021, by one Babangida Mohammed.

It is not in doubt that the suit No of the case transmitted is suit No. ADSV/117M/2016. Originally on page 3 of the Record of Proceedings as transmitted, the number of the suit in the Court below is suit No. ADSY/120/2010, this suit number was struck out on 9th November 2016, see page 229 of the Record of Proceedings when this suit number was struck out.

However, at page 25, of the Record of Proceedings, the Respondent by its Motion dated 14th November 2016 sought for re-listment of the suit as Suit No. ADSV/120/2010 and ADSV/117M /2016. On page 234 of the Record of Proceedings, the Court below referred to this particular suit in its ruling delivered on 24th February 2017, as Suit No. ADSY/117M/2010.

Furthermore, at page 241, in its ruling delivered on 14th March 2017, the lower Court referred to the case as Suit No. ADSY/117M/2010.

It is submitted that by Notice of appeal filed by the Appellant in this case, on page 257 of the Record of Proceedings, the Appellant filed this appeal against Suit No. ADSY/117M/2016. It is therefore clear that this appeal is against suit No. ADSY/120/2010 as could be found on the Writ of Summons on page 3, of the Record of Proceedings or Suit No. ADSY/117M/2016. Learned counsel contended that the fact that, the Court below used Suit No. ADSY/120/2010, Suit No. ADSY/117M/2016 or Suit No. ADSY/117M/2010, at various stages of proceedings, does not change the substance of this appeal. It is the Respondent’s duty to prosecute its case in the Court below on a single suit number and not the Appellant. The Appellant only used one of the suit numbers which the Respondent used below to prosecute this appeal and not all the suit numbers used by the Respondent in the Court below.

Furthermore, it is not the responsibility of the Appellant to ascribe suit numbers to cases before the trial Court in which he was the Defendant. It is the responsibility of the Respondent to prosecute its case on a single suit number as a Plaintiff in the trial Court and not that of the Appellant as a Defendant in the trial Court.

Therefore, if at all this suit is to be struck out for not using a valid suit number, it should be visited on the Respondent who has failed in the Court below to use a single suit number to prosecute its case.

This Court was urged to determine this appeal on its merits and not on technicality of suit numbers as used by the Court below. This Court is urged to hold that suit No. ADSY/117M/2016 as used to transmit the Record of Proceedings of the trial Court to this Honourable Court to be the valid suit number in this appeal.

GROUND TWO
That the appeal is incompetent in law, in that there is no relief whatsoever touching on the judgment being appealed against.
On this ground, it is submitted that the Appellant has in his original grounds of appeal, and Further Amended Grounds of Appeal, as well as in its Brief of Arguments sought for reliefs from this Honourable Court. See the Further Amended Notice of Appeal dated 11th January 2021, and filed 11th January 2021 as well as Appellant’s Brief of Argument dated 2nd February 2022 and filed 2nd February 2022 wherein the Appellant sought for the reliefs for an order allowing the appeal, and also an order dismissing the claim of the Respondent in the Court below. And striking out the suit in the Court below as prayed for in the Appellant’s brief of argument.

Therefore, the claim by the Respondent that the Appellant never prayed for any reliefs from this Honourable Court should be regarded as misleading the Court.

GROUND THREE
That Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.

Learned counsel submitted that Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom are competent in law as contained in the Further Amended Notice of Appeal, this is because issues 1, 2, 4 & 7 as formulated from the Further Amended Notice of Appeal are derived from Grounds 1, 2, 4 & 7 of the Grounds of Appeal.

Ground 1, is in respect of the denial of the trial Court to allow the Appellant, to move his Motion on Notice filed on 3rd May 2017, to allow the Appellant file his Statement on Oath and List of Documents as provided by Order (1) Rule (2), (1) (c) (d) of the High Court. Civil Procedure Rule, and also ordered by the Honourable Court in 2016 for parties to comply with the new Rules of the High Court.

It is submitted that Ground 2, also relates to issue of fair hearing, which the Appellant was denied throughout the proceedings of the case, since the Appellant was not allowed to take a date to cross-examine the only witness called by the Respondent. See pages 244 to 246 of the Record of Proceedings where the trial Court conducted the proceedings of 26th April 2017 without mentioning the Appellant’s Counsel or his whereabouts. See page 247, of the Record of Proceedings, where the presence of Counsel was not taken on the day of judgment delivered on 19th June 2017, and the Motion of the Appellant to file his Statement on Oath and documents to rely was still pending before the Court.

On Ground 4 raised, it is submitted that Ground 4, was competent, and the issue derived from is also competent since on the Record of Proceedings PW1, who was called by the Respondent was heard as contained on pages 244 – 246 of the Record of Proceedings, but the Appellants Counsel was not given the opportunity to cross-examine the said witness, or the Court did not indicate whether the Appellant was present or not to do the cross-examination of the Respondent’s witness, as was conducted in the proceedings of 26th April 2017, contained pages 244 – 246 of the Record of Proceedings.

Learned counsel surmised that, Ground 4 and the issue derived from there in the Appellant’s Further Amended Grounds of Appeal is valid.

It is further submitted that Ground 7, and the issue 7 derived from there are equally valid in law, in that the trial Court Judge has been opposed by the Appellant, for the trial of this case right from 2016. See pages 135 – 136 of the Record of Proceedings, a letter dated 25th July 2016 which the Appellant wrote to the trial Court Judge opposing the Judge to try the case, and also the Motion on Notice dated 24th January 2017 at pages 32 – 33 of the Record of Proceedings, where the Appellant filed a Motion to disqualify himself from trying this case, yet the Judge still insisted to try the matter without giving the Appellant the right of fair hearing.

Learned counsel contended that it is right, for the Appellant to challenge the persistent failure of the trial Court Judge, to decline sitting over this matter up to the date of his judgment.
This Court is urged to disregard the Preliminary issue three raised by the Respondent’s Counsel.

GROUND FOUR
That Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, 4 & 7 distilled therefrom which all are complaints against interlocutory decisions of the trial Court are incompetent in law, in that they were filed outside the 14 days period prescribed by Section 24(2)(a) of the Court of Appeal Act.
It is submitted that Grounds 1, 2, 4 & 7 of the Grounds of appeal, as well as Issues 1, 2, 4 & 7 distilled therefrom, are competent before this Honourable Court, this is because Grounds 1, 2, 4 & 7 and issues formulated therefrom are issues relating to fair hearing, which goes to the jurisdiction of trial Court to try the matter, and issues of jurisdiction can be raised at any stage of the proceedings even before this Honourable Court or even at the Supreme Court. Issue of fair hearing is fundamental and goes to the root of any proceedings. Therefore, it could be raised in this Honourable Court at any stage.

Furthermore, the issue for the denial of the Appellant to file his Statement of Defense in the trial Court out of time, was denied by the trial Court up to the day of the judgment whereby his application before the Court was denied to be heard and the judgment delivered during the pendency of the application. See Aliko Nig Ltd Vs ACCMU Ltd (2004) AFWLR Pt. 210. It is a trite law that no matter how stupid an application is, a trial Court must hear and determine that application before the judgment.

Therefore, the denial of fair hearing to the Appellant by the trial Court started from the date of relistment of this suit on 11th January 2017, to the date of judgment which is 19th June 2017.

Therefore, the Appellant never ran out of time at all to complain of lack of hearing which has characterized the entire proceedings.

See ORUGBO & ORS. V. BULARA UNA & ORS. (2002) 11 NSCQR PAGE 537 AT 540 RATIO 3. Therefore, if a trial Court conducted itself throughout the proceedings of a case, the injured party is at liberty at any stage of the proceedings, to appeal against the lack of fair hearing which was even denied on the day of judgment at trial Court by failing to allow the Appellant to move his application pending before the Court before its judgment.

GROUND FIVE
Grounds 1, 2, 4 & 7 of the Grounds of Appeal as well as Issues 1, 2, & 7 distilled therefrom are incompetent as they do not arise from the judgment of the trial Court being appealed against.
It is submitted that Grounds 1, 2, 4 & 7 of the Grounds of Appeal, and Issues 1, 2, 4 & 7 distilled therefrom are competent, because the issues raised there on are issues relating to fair hearing, which touches the jurisdiction of the trial Court, and as submitted on issue four above, issue of jurisdiction are fundamental and can be raised at any point in the proceedings.

Furthermore, the issue for the denial of the Appellant to file his Statement of Defense at the trial Court, was denied on the Day of Judgment, and therefore was incorporated in the substantive appeal.

Learned counsel urged this Court to disregard this issue of Preliminary Objection and hold that Grounds 1, 2, 4 & 7 and issues 1, 2, 4 &7 distilled therefrom are competent.

Moreover, Grounds of Appeal are not only restricted to the judgment of a trial Court, but are applicable to the entire proceedings of the trial Court, therefore, the Appellant needs no leave of the trial Court, to appeal against lack of fair hearing on the date of judgment.

Therefore, Grounds 1, 2, 4 & 7 are competent Grounds of Appeal, and issues distilled from them are also competent.
This Court is urged to disregard this line of Preliminary Objection.

GROUND SIX
Ground 5 of the Grounds of Appeal, as well as issue 5 distilled therefrom are incompetent, in that they are complaints against an obiter dictum of the learned trial Judge, rather than the ratio decidendi of the judgment of the trial Court.
Learned counsel submitted that, Ground 5 of the Grounds of Appeal, as well as issue 5 derived from are competent and the assertion by the trial Court Judge that the Appellant did not file its Statement of Defense in its judgment is not an obiter dictum, but it is a ratio decidendi because the Court below gave judgment against the Appellant on grounds that the Appellant never filed its Statement of Defense, while there was a pending Motion before the trial Court, for the filing of the Statement of Defense, including the front-loaded Witness Statement of Oath and documents as provided by the new High Court Rules, before the trial Judge disregarded the Motion and went ahead to deliver his judgment on 19th June 2017.

Therefore, the above referred to statement of the trial Court Judge, cannot be said to be an obiter, but it is the reason why he gave the judgment against the Appellant without hearing from the Appellant’s side.

This Court is urged your to disregard this issue of Preliminary Objection and to hold that Ground 5 and the issue 5 derived are competent.

GROUND SEVEN
Grounds 6 of the Grounds of Appeal as well as issue 6 distilled therefrom are incompetent as they are complaints against the admissibility of documents that are ordinarily admissible in law.
It is submitted that Ground 6, of the Grounds of Appeal and issue 6 derived from, are competent in that the trial Court disregarded the Rules of procedure provided by the High Court Rules, of Adamawa State 2013, counsel noted that, when this suit was originally filed in 2010, the issue of front loading Witness Statement on Oath, and documents to be relied on by a party was not applicable.

However, in 2013 it was introduced by the High Court Rules of Adamawa State. This suit was relisted for a trial de novo by the Court below on 11th January 2017, after the High Court Rules have been introduced. Therefore, the Respondent was duty bound to frontload its witness statement on oath, as well as its documents of title as provided by the High Court Rules in 2013.

This is more of the reason why the Appellant has to file the Motion dated 11th May 2017, to file his Witness Statement of Oath, as well as its frontloaded documents. Furthermore, Order (1) Rule (2),(1) (c) (d) has enjoined aII parties to file their Witness Statement on Oath and documents to be relied upon through frontloading.

It is submitted that trial Court Judge had earlier in 2016, ordered that all parties in this suit and other sister cases which are on appeal in this Honourable Court should comply with the new High Court Rules as regards to frontloading Witnesses Statement on Oath and documents to be relied upon at trial. It is trite that the rules of Court must be obeyed because they are part of the machinery of doing justice.

Therefore, Ground 6 and issue 6 raised by the Appellant are competent since the Appellant has the right to challenge the violation of the High Court Rules by the Respondent and even against the order of the same Judge who ordered for the compliance to the frontloading of documents and Witnesses Statement on Oath.

This Court is, urged to disregard all the Preliminary Objections raised by the Respondent’s Counsel in his Notice of Preliminary Objection.

Resolution of Preliminary Objection.
I have carefully studied the record of appeal transmitted to this Court on the 12th July, 2021 deemed properly complied and transmitted on the 25th January, 22, l cannot find where on page 229, the number of the Suit No ADSY/120/2010 was struck out on 9th November, 2016.

Respondent’s counsel in my view rightly pointed out in Ground One, the fact that the record of appeal compiled and transmitted to this Court on the 12th day of July, 2021 by the Appellant is in respect to Suit No: ADSY/117M/2016. Whilst the Appellant in his Further Amended Notice of Appeal, referred to his dissatisfaction with the final decision of the High Court of Justice Adamawa State, delivered on 19/06/2017 in Suit No. ADSY/120/2010 between Umaru K. Banu v Hon. Justice M.B.Goji.

The Appellant’s counsel in my view does not realize, that there is a difference between the Number 117 and 120. It is immaterial that the lower Court at various stages of its proceedings used Suit No ADSY/120/2010 or Suit No ADSY/117M/2016. The Appellant must in his Notice of Appeal state correctly the Number of the suit he is appealing against as well as the parties. The argument of Appellant’s counsel that, there is a valid record of proceeding to sustain this appeal is not tenable. The record of appeal transmitted to this Court on the 12th July, 2021 pursuant to Appellant’s Further Amended Notice of Appeal, deemed properly compiled and transmitted to this Court on the 9th March, 2021, is very clear that it is in respect Suit No: ADSY/117M/2016. Whereas in the Further Amended Notice of Appeal in No 2, Appellant was very categorical that the suit he is appealing against is Suit No: ADSY/120/2010. The Respondent correctly pointed out the fact that, the purported Record of Appeal which was complied and transmitted to this Court by the Appellant on the 12th day of July, 2021 is incompetent in law, therefore incapable of sustaining Appeal No: CA/YL/158/2017. The Respondent stated the correct position of the law, that Appeal No: CA/YL/158/2017 is incompetent in law, as it has no competent valid record of appeal to sustain it.
This is to stay that the Appellant is not properly before this Court having failed to satisfy the necessary pre-condition for him to be before us. This appeal cannot in the circumstances stand given the absence of a valid record of appeal. With no valid record of appeal, it follows that there is no jurisdiction or platform upon which the Court can stand, and determine the issues as raised by the said Appellant or even the rest of the issues as raised by the Respondent in this appeal. My stance is emboldened by the decision of the apex Court in the case of Dr. Okey Ikechukwu vs. FRN. & Ors. (2015) 7 NWLR (Pt. 1457) 1, per Nweze, JSC. where at p. 21, paras. B-G and P. 22, para. C, he enjoined that:
As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent’s Preliminary Objection to the competence of the Appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal.

It is in the wake of the foregoing superior authority that I steer clear of the rest of the issues raised for determination in this appeal. The preliminary objection as raised by the Respondent against the hearing of the appeal is well founded and therefore succeeds. Accordingly, the appeal being incompetent for want of the requisite jurisdiction is hereby struck out.

Costs assessed and fixed at N60,000.00 is awarded in favour of the Respondent and against the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I read in advance, the draft judgment delivered by my learned brother FATIMA OMORO AKINBAMI, JCA. I agree with his reasoning and conclusion arrived at in upholding the preliminary objection and striking out the appeal for being incompetent.

I abide by the Order made by my learned brother as to costs in the leading judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother FATIMA OMORO AKINBAMI, JCA afforded me the privilege to read in advance the lead judgment just delivered. I am in agreement that the appeal is incompetent and should be struck out.

The appeal is hereby struck out by me with nothing further to add.