GOVERNMENT OF AKWA IBOM STATE v. IME UMANAH JNR (2019)

GOVERNMENT OF AKWA IBOM STATE v. IME UMANAH JNR

(2019)LCN/12831(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of March, 2019

CA/C/46/2014

RATIO

APPEAL: THE GROUNG OF APPEAL IS THE FOCUS OF AN APPEAL

“Indisputably, a ground of appeal is the focus of an appeal. It denotes the totality of the reasons why a decision complained of is considered wrong by an appealing party, see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145; Ngere v. Okuruket ?XIV? (2017) 5 NWLR (Pt. 1559) 440; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457. It binds the Courts and parties, see Udom v. Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179. Its essence is to notify an opponent, usually a respondent, the nature of the adversary’s, invariably an appellant’s, complaints against a decision, see Abe v. Unilorin (supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253; Lagga v. Sarhuna (2009) All FWLR (Pt. 455) 1617.” PER OBANDE FESTUS OGBUINYA, J.C.A.

APPEAL: PARTICULARS OF ERROR

“In the sight of the law, particulars of error are meant to throw light on the ground/complaint against the judgment under attack. In practice, they are set out independently after each ground of appeal. They can, also, be buried in the body of the ground without any injury to the law. A ground of appeal does not require an army of particulars. One particular is potent enough to sustain an appeal. Indeed, they may be dispensed with once the grounds are clear, lucid and precise. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 537; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 154; Adekeye v. Adesina (2010) 18 NWLR (Pt. 1225) 449; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; Abe v. Unilorin (supra); Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332. It is settled law, that particulars of a ground appeal must relate to it. Put starkly, the particulars ought not to be at variance/antithetical to the ground, see FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 111; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Asimi v. State (2016) 12 NWLR (Pt. 1527) 414; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219; Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 173.” PER OBANDE FESTUS OGBUINYA, J.C.A.

INTERPRETATION: RATIO DECIDENDI/OBITER DICTUM

“…In the wide realm of jurisprudence, there is a wide dichotomy between the terms ratio decidendi and obiter dictum though both owe their etymological descent to the Latin language. A ratio decidendi denotes the legal principle which is important in the determination of the issues raised in a case, id est, the binding portion of the decision, the reason behind a decision. Contrariwise, an obiter dictum signifies a passing remark made by a Judex in a decision which is not necessary for it. While the former is submissive to appeal, the latter does not. Whereas, a ratio decidendi in a case is binding on a lower Court, qua similarity of facts, on the footing of the hallowed doctrine of stare decisis, an obiter dictum is stripped of such authority save it is adopted as a ratio in a later case, see Afro Continental v. Ayantuyi (1995) 12 SCNJ 1/(1995) 9 NWLR (Pt. 420) 411; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1059) 99; Osakue v. FCF, Asaba (2010) 10 NWLR (pt. 1201) 1; Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404; NDP v. INEC (2013) 6 NWLR (Pt. 1350) 392; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228; Adelekan v. Ecu ? Line NV (2006) 12 NWLR (Pt. 993) 333; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; PDP v. Sylva (2017) 5 NWLR (Pt. 1557) 74; Atanda v. Comm., L. & H., Kwara State (2018) 1 NWLR (Pt. 1599) 32.” PER OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

GOVERNMENT OF AKWA IBOM STATE Appellant(s)

AND

IME UMANAH JNR
(Substituted by Order of Court dated 12th November, 2015) Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment):

This appeal probes into the correctness of the decision of the High Court of Akwa Ibom State, holden at Abak (hereinafter addressed as ?the lower Court?), coram judice: Joseph E. Ekanem, J., in Suit No. HA/118/2011, delivered on 28th October, 2013. Before the lower Court, the appellant and the respondent were the defendant and the claimant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. Sometime in November, 2008, there was a concluded contract between the respondent and appellant. In the contract, the respondent sold outrightly his three mega-size multi-purpose warehouses at Abak Industrial Area in Abak Local Government Area of Akwa Ibom State for the sum of N1.8 billion. The appellant paid the respondent the sum of N1.5 billion in two tranches of N1 billion and N500 million. The respondent alleged that the appellant refused to pay the balance of N300 million despite repeated demands from him. Sequel to the non-payment, the respondent, by dint of a writ of summons under the undefended list procedure, filed on 19th February, 2011, beseeched the lower Court and tabled against the appellant a claim for the payment of the balance of the N300 million and N5 million costs. The appellant duly filed a notice of intention to defend the action and affidavit in support of it. The lower Court, after an examination of the notice of intention to defend, let in the appellant to defend the matter and transferred it to the general cause list for determination. In the statement of claim, filed on 9th March, 2012, under the general cause list, the respondent tabled against the appellant the following reliefs:

(a) The sum of N300,000,000.00 (Three Million Naira) being the outstanding sum owed the Claimant by the Defendant on the contracted price for acquisition of the Claimant?s three large warehouses on Abak-Ekparakwa-Ikot Abasi High Way, Abak Industrial Lay Out, by the Defendant.

(b) Interest on the sum at 10% from date of judgment till full liquidation.

In reaction, the appellant joined issue with the respondent and denied liability. In its statement of defence, it asserted that the agreed sum of N1.8 billion was renegotiated down to N1.5 billion paid to the respondent.

Following the denials and rival claims, the lower Court had a full-scale determination of the action. In proof of the case, the respondent called two witnesses, PW1 and PW2, and tendered eight documents, Exhibits 1-8. In disproof of the case, the appellant fielded three witnesses, DW1-DW3, and tendered two documents: exhibits 10 and 11. At the closure of evidence, the parties, through counsel, addressed the lower Court. In a considered judgment, delivered on 28th October, 2013, found at pages 272 – 294 of the record, the lower Court granted the respondent’s claim.

The appellant was dissatisfied with the judgment. Hence, on 15th November, 2013, it lodged a 2-ground notice of appeal copied at pages 295-297 of the record. Again, on 13th January, 2014, it filed an 8-ground notice of appeal seen at pages 298-306 of the printed record. Subsequently, the appellant, with the leave of this Court, filed an amended notice of appeal on 18th May, 2016 and deemed properly filed on 19th May, 2016, hosting nine (9) grounds, wherein it prayed this Court as follows:

1. To allow this appeal

2. Set aside the judgment of the trial Court entered on the 28th October, 2013 against the Appellant.

3. And enter judgment in favour of the Appellant by dismissing the case of the Respondent.

Thereafter, the parties filed and exchanged their briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 23rd January, 2019.

Consideration of the respondent’s application.

By a motion on notice, dated and filed on 6th February, 2017, the respondent prayed this Court for:

1. AN ORDER striking out Grounds 1, 2, 3, 4, 5, 6, 7 and 8 in the Amended Notice of Appeal dated 16th May, 2016, same being incompetent.

2. AND FOR SUCH FURTHER ORDERS as the Honourable Court may deem fit to make in the circumstances.

The application was predicated on four (4) grounds and supported by an 8-paragraph affidavit. The arguments in support of it were incorporated in the amended respondent?s brief of argument, filed on 8th January, 2019, at pages 4-9 thereof.

Arguments on the application

Learned counsel for the respondent, C.O.P Emeka, Esq., submitted that ground 1 of the notice of appeal was predicated on an obiter dictum, rather than ratio decidendi, of the decision and so incompetent. He added that some of the particulars of the ground did not support it and some based on obiter dictum of the decision. He urged the Court to strike it out. He relied on FHA v. Kalejaiye (2010) 9 NWLR (Pt. 1226) 147; Eyo v. Okpa (2010) 6 NWLR (Pt. 1191)611). He advanced the same argument, failure to attack the ratio of the decision on Exhibit 9, against ground 2. He added that it was vague, general in terms and failed to disclose reasonable ground of appeal contrary to Order 7 Rule 3 of the Court of Appeal Rules, 2016.

He posited that ground 3 was contrary to Order 7 Rule 3 of the Court of Appeal Rules, 2016 as it was vague, and disclosed no reasonable ground. He noted that it was at variance with its particulars. He cited Iyen v. FRN (2010) 2 NWLR (Pt. 1177) 1; FHA v. Kalejaiye (supra). He reasoned that ground 4 was contrary to Order 7 Rule 3 of the Court of Appeal Rules, 2016 in that it disclosed no reasonable ground of appeal.

He contended that ground 5 did not attack the ratio of the decision and was vague, general and disclosed no reasonable ground of appeal. He asserted that ground 6 did not attack the ratio and disclosed no reasonable ground of appeal. He referred to Order 7 Rule 3 of the Court of Appeal Rules, 2016. He alleged that ground 7 failed to challenge the ratio of the decision and disclose reasonable ground of appeal. He relied onRossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382; Order 7 Rule 3 of the Court of Appeal Rules, 2016. He reasoned that ground 8 had the same defects with ground 2 and adopted his submissions on the latter. He citedFHA v. Kalejaiye (supra); Iyen v. FRN (supra). He urged the Court to strike out those grounds and as a corollary strike out issues 1-7, tied to them, as incompetent. He relied on Yaro v. Arewa Construction (2007) 17 NWLR (Pt. 1063) 333.

On behalf of the appellant, learned counsel, Bassey J. Ekanem, Esq., submitted based on the appellant’s reply brief of 14th January, 2019, that the respondent?s counsel did not show how those grounds attacked obiter dicta so that he abandoned that ground of attack and same should be struck out. He relied on Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 131. He contended, per contra, that those grounds, 1-8, challenged the ratio of the decision of the lower Court. He explained what grounds 1, 2 and 5 attacked in decision. He reasoned that a ground of appeal could be predicated on obiter where it related to a ratio decidendi. He cited Wema Bank Plc. v. Brastem-Sterr Nig. Ltd. (2010) LPELR 9166 (CA); Saude v. Abdullahi (1989) 3 NWLR (Pt. 116) 387. He observed, in the alternative, that the obiter dicta, were intertwined with the ratio decidendi and the former radically influenced the latter. He referred to Saude v. Abdullahi (supra); Wema Bank Plc. v. Brastem-Sterr Nig. Ltd. (supra).

Learned counsel argued that grounds 3, 4, 6 and 7 were not vague, general and disclosed reasonable ground of appeal. He described when a ground of appeal could be said to be vague as noted in CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48/(2002) 3 SC 99; Oduah v. FRN (2012) LPELR ? 9220 (CA). He insisted that those grounds of appeal were not vague.

He disclosed when a ground could be said to be reasonable as noted in Labour Party v. INEC (2013) LPELR ? 21960; NIIT Zaria v. Dange (2008) LPELR ? 8666; Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183/(2013) All FWLR (Pt. 697) 682. He maintained that those grounds of appeal disclosed reasonable grounds of appeal. He concluded that Courts would now do substantial justice than technical justice. He referred to Abe v. Unilorin (supra); Nwosu v. Imo State Environmental Sanitation Agency (1990) 2 NWLR (Pt. 135).

Ruling on the application.

It admits of no argument, that the respondent, by dint of the application, has greeted the appellant’s grounds 1-8 with a stiff opposition on the footing of their being an affront to the law. The application spared only ground 9. It is now trite, that motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR 7812 (SC)/(2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175. I will attend to the application first in order to determine the fate of those grounds 1-8 in the amended notice of appeal.

The kernel of the respondent’s objection seeks to terminate, in limine, the appellant’s grounds 1-8 on two major vitriolic grounds. Due to their kingly position in the appeal and being the cynosure of the application, it is imperative to pluck them out, ipissima verba, where they are domiciled/ingrained in the amended notice of appeal. The said grounds 1-8, derobed of their particulars, read:

1. The learned trial judge erred in law when he failed to dismiss the claim, having, in effect, rejected the Respondent’s evidence that he was given only the signature page of the deed of assignment to sign.

2. The learned trial judge erred in law when he expunged from the records a photocopy of the Certified True Copy of the Deed of Assignment entered into between the Appellant and the Respondent which he had earlier admitted and marked as Exhibit 9 on the ground that it was a photocopy of a Certified True Copy of a Public Document.

3. The learned trial judge erred in law when he held that the Appellant had failed to prove that the price of the warehouse had been renegotiated.

4. The learned trial judge erred in law when he failed to evaluate at all or sufficiently relevant and crucial evidence of some of the witnesses’ evidence which if properly evaluated would certainly have led to the dismissal of the Respondent’s claim.

5. The learned trial judge erred in law when he failed to dismiss the action in the face of clear testimony by the Respondent himself that the property did not belong to him personally but belonged to three companies one of which was named as A-Z Plastics Ltd.

6. The learned trial judge erred in law when he awarded interest arbitrarily.

7. The learned trial judge erred in law in refusing to follow the decision of the Supreme Court in Magaji vs. Nigerian Army (2004) 16 NWLR (Pt. 899) 222 at 240 which decided that a photocopy of certified true copy of a public document is admissible in evidence, on the ground that the opinion was expressed in a supporting judgment and the issue was not raised in the Supreme Court.

8. The learned trial judge erred in law when he expunged Exhibit 9 and refused to give effect to it on the ground that it was inadmissible.

Indisputably, a ground of appeal is the focus of an appeal. It denotes the totality of the reasons why a decision complained of is considered wrong by an appealing party, see Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 113) 278; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 145; Ngere v. Okuruket ?XIV? (2017) 5 NWLR (Pt. 1559) 440; Ifaramoye v. State (2017) 8 NWLR (Pt. 1568) 457. It binds the Courts and parties, see Udom v. Umana (No. 1) 2016) 12 NWLR (Pt. 1526) 179.

Its essence is to notify an opponent, usually a respondent, the nature of the adversary’s, invariably an appellant’s, complaints against a decision, see Abe v. Unilorin (supra); Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253; Lagga v. Sarhuna (2009) All FWLR (Pt. 455) 1617; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 94; PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219; GTB Plc. v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181;Nweke v. Unizik, Awka (2017) 18 NWLR (Pt. 1598) 454; Atanda v. Comm., L & H., Kwara State (2018) 1 NWLR (Pt. 1599) 32.

Now, one of the respondent’s grievances, indeed the foremost, is that the appellant’s grounds 1, 2, 5, 6, 7 and 8, derived their roots from the obiter dicta, not the ratio decidendi, of the lower Court’s decision sought to be impugned. To begin with, the complaint calls for an elucidation of the imports of ratio decidendi and obiter dictum in adjudication. In the wide realm of jurisprudence, there is a wide dichotomy between the terms ratio decidendi and obiter dictum though both owe their etymological descent to the Latin language. A ratio decidendi denotes the legal principle which is important in the determination of the issues raised in a case, id est, the binding portion of the decision, the reason behind a decision. Contrariwise, an obiter dictum signifies a passing remark made by a Judex in a decision which is not necessary for it. While the former is submissive to appeal, the latter does not. Whereas, a ratio decidendi in a case is binding on a lower Court, qua similarity of facts, on the footing of the hallowed doctrine of stare decisis, an obiter dictum is stripped of such authority save it is adopted as a ratio in a later case, see Afro Continental v. Ayantuyi (1995) 12 SCNJ 1/(1995) 9 NWLR (Pt. 420) 411; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1059) 99; Osakue v. FCF, Asaba (2010) 10 NWLR (pt. 1201) 1; Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404; NDP v. INEC (2013) 6 NWLR (Pt. 1350) 392; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228; Adelekan v. Ecu ? Line NV (2006) 12 NWLR (Pt. 993) 333; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; PDP v. Sylva (2017) 5 NWLR (Pt. 1557) 74; Atanda v. Comm., L. & H., Kwara State (2018) 1 NWLR (Pt. 1599) 32.

It is now settled, beyond any peradventure of doubt, that a ground of appeal, which is the nucleus of every appeal, must attack and disclose nexus with a decision that is the subject of an appeal. A ground of appeal must be linked to and question a ratio decidendi, not an obiter dictum, of a judgment. Any ground of appeal formulated in nubibus runs foul of this cardinal rule of law and risks being struck out on account of incompetence, see Adelekan v. ECU-Line NV (2006) 12 NWLR (Pt. 993) 333; Balonwu v. Governor of Anambra State (2008) 16 NWLR (Pt. 1113) 236; Lawrence V. A.-G; Fed. (2008) 6 NWLR (Pt. 1084) 484; Okonobor V. D.E & S.T. Co. Ltd (2010) 17 NWLR (Pt. 1221) 181; Odunukwe v. Ofomata (supra); FBN Plc. v. TSA Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247; D.T.T. Ent. (Nig.) Co. Ltd v. Busari (2011) 8 NWLR (Pt. 1249) 387; Garuba v. Omokhodion (2011) 15 NWLR (Pt. 1269) 145; Abe v. Unilorin (supra); Oleksandr v. Lonestar Drilling Co. Ltd. (2015) 9 NWLR (Pt. 1464) 337; Ngere v. Okuruket ‘XIV’ (supra); Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 175; Isaac v. Imasuen (2016) 7 NWLR (Pt. 1511) 250; Okafor v. Abumofuani (2016) 12 NWLR (Pt. 1525) 117; Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179.

I have, in consonance with the expectation of the law, married those grounds of appeal, alongside the decision of the lower Court, which colonizes pages 272 – 294 of the record, with the inelastic positions of the law displayed above. The raison d’etre for the juxtaposition is simple. It is to ascertain if those grounds insulted the law vis-a-vis the lower Court’s decision which is in the heat of decimation. I have given a clinical examination to those grounds and the judgment which are obedient to clarity. A communal reading of grounds 1, 2, 7 and 8, clearly, reveals that they are interwoven and share a common target: to puncture the lower Court?s declaration of Exhibit 9, the deed of assignment, as inadmissible. The lower Court?s reason, inter alia, for the finding is that it is a photocopy of a certified copy of a public document. The lower Court?s ostracization of Exhibit 9, is one of the critical rationes in the judgment.

Undeniably, in law, a case is entitled to possess more than one ratio or rationes decidendi, see Adetoun Oladeji (Nig.) Ltd. v. N.B. Plc. (2007) 5 NWLR (Pt. 1027) 415. Thus, grounds 1, 2, 7 and 8 seek to deflate the finding and restore Exhibit 9 to the case. In other words, they strike at one of the rationes decidendi of the lower Court’s decision. In essence, they have not, in the least, fractured the law as to be tainted with incompetence.

Ground 3 chastises the lower Court?s finding that the appellant failed to prove renegotiation of the consideration for the warehouses from N1.8 Billion to N1.5 billion. An indepth study of the case, amply, demonstrates that it is hedged on the non-existence or existence of renegotiation of the purchase price of the warehouses. Put simply, renegotiation or otherwise formed the casus belli of the case. The lower Court, based on Exhibits 3 and 4, after expunction of Exhibit 9, found that there was no renegotiation which led to the success of the claim. The object of ground 3 is to perforate the lower Court’s unfavourable reason on renegotiation. In sum, it attacks the ratio on the point and, ipso facto, not plagued by any incompetence.

An intimate reading of grounds 4, 5 and 6, clearly, showcases that they are intertwined and centre on the evaluation of evidence. They accuse the lower Court’s judgment of improper evaluation of the evidence presented before it. A careful look at the judgment shows that the lower Court assessed rightly or wrongly, the evidence, both viva voce and documentary, offered by the feuding parties. It offered reasons, rightly or wrongly, for believing or attaching probative value to them or otherwise. Those grounds 4, 5 and 6 are geared towards displacing the lower Court’s reasons in relation to the evidence. Put differently, they have direct nexus with the ratio decidendi in relation to evaluation of evidence.

In the light of this brief legal anatomy, grounds 1-8 trace their paternity to the rationes decidendi, not the obiter dicta, of the decision of the lower Court. In effect, they are not, in the least, guilty of the respondent’s charge of want of connection with the decision. On this score, I decline the respondent’s enticing invitation to crucify them on the undeserved shrine of lack of affinity with the ratio decidendi of the lower Court’s decision.

The respondent’s second grouse is pegged on the provision of Order 7 Rule 2(3) of the Court of Appeal Rules, 2016. It provides:

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.

The provision, which is comprehension-friendly, expels vague, generic and unseasonable grounds from the province of notice of appeal, see Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Abe v. Unilorin (supra); Akpamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1466) 124; Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 175. In Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 at 471 and 472, Tobi, JSC, incisively, intoned:
A ground of appeal is vague if it is allusive, ambiguous, broad, debatable, disputable, evasive and inexact. A ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague. A ground of appeal which clearly complains about the decision of the Court in terms of live issues cannot be said to be vague; but one which complains about matters peripheral to the live issues are. See also Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 175.

It is decipherable from learned respondent’s counsel’s submission, that the respondent’s coup de main here is against the appellant’s grounds 2-8. I have, in due allegiance to the desire of the law, situated those grounds, sought to be annihilated, with the negative elements of the provision of Order 7 Rule 2(3) of the Court of Appeal Rules, 2016. In the first place, I had just found, that those grounds disclosed direct attack and linkage with the rationes decidendi of the lower Court?s decision. The solemn finding, which was reached after due consultation with the law, to all intents and purposes, drowns the respondent?s charge of vagueness against them.

Besides, I have given merciless scrutiny to those grounds. They are, to my mind, disobedient to equivocation, rebellious to ambiguity, imprecision, illusion, coherence and woolliness. In other words, they are cathy, clear, unarguable, succinct, unequivocal, precise and submissive to easy appreciation. They are well-founded and totally divorced from being generic in that they relate to the live issues germinating from the decision of the lower Court. In essence, those grounds are not, in the least, caught in the intractable web of vagueness and genericness as to be smeared with incompetence. It follows that those grounds have not violated/eroded the provision of Order 7 Rule 2(3) of the Court of Appeal Rules, 2016. In all, this ground of objection, contrived by the appellant, is impotent to castrate the validity and viability of the appellant?s grounds 2-8 in the notice of appeal.

Lastly, the respondent derided grounds 1 and 3 in the amended notice of appeal on account of inconsistent particulars. In this wise, the provision of Order 7 Rule 2(2) of the Court of Appeal Rules 2016 comes in handy for the consideration of the stubborn point. It reads:

(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.

In the sight of the law, particulars of error are meant to throw light on the ground/complaint against the judgment under attack. In practice, they are set out independently after each ground of appeal. They can, also, be buried in the body of the ground without any injury to the law. A ground of appeal does not require an army of particulars. One particular is potent enough to sustain an appeal. Indeed, they may be dispensed with once the grounds are clear, lucid and precise. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 537; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 154; Adekeye v. Adesina (2010) 18 NWLR (Pt. 1225) 449; Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95; Abe v. Unilorin (supra); Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1388) 332.

It is settled law, that particulars of a ground appeal must relate to it. Put starkly, the particulars ought not to be at variance/antithetical to the ground, see FHA v. Kalejaiye (2010) 19 NWLR (Pt. 1226) 111; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Asimi v. State (2016) 12 NWLR (Pt. 1527) 414; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219; Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 173.
I have, out of necessity, revisited the amended notice of appeal. Ground 1 parades an army of particulars: (a) -(h). Ground 3 has an avalanche of particulars: (a)-(f). I have gone through these galaxy of particulars. Incidentally, I am unable to find, even with the eagle eye of Court, where and how those particulars disclosed enmity and incompatibility with their grounds. Put the other way round, those litany of particulars, duly, performed their function of explanation of the complaints in grounds 1 and 3 which, to a large extent, are canalised within the orbit of the lower Court?s expulsion of Exhibit 9. Having discharged their duty, expatiation of the complaints in the grounds, I am not armed with any legal justification to label them as being diametrically opposed to the grounds. This ground of objection, like its predecessors, is idle to emasculate grounds 1 and 3. For the sake of completeness, the appellant?s grounds 1-8, sought to be jettisoned, have

conveyed, with sufficient notice and information to the respondent and this Court, the crux of the appellant?s complaints against the lower Court?s decision. The reasons, for the appeal are wrapped in them. Thus, the enabling and relevant provisions of the Court of Appeal Rules, 2016 have been fulfilled. The law does not compel the courts to brand ground(s) of appeal incompetent on the slightest infraction of the rules of Courts. It is not the intent and spirit of the rules of Court, which are designed to ensure fairness to litigating parties, to shut out an appellant from ventilating his complaints in an appeal, see Mil. Admin. Benue State v. Ulegede (2001) 17 NWLR (Pt. 731) 194; Aderounmu v. Olowu (supra); Abe v. Unilorin (supra); The Minister of Petroleum & Min. Resources v. Expo Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261. The respondent, in his infinite wisdom, starved this Court on how he was misled by the appellant?s ground 1-8 on grounds of want of correlation with the decision, vagueness and irreconcilable particulars. This constitutes a serious coup de grace in the respondent?s application.

In the interest of clarity, having found the appellant?s grounds 1-8 competent, the respondent?s supplication against the issues peter into insignificance. In the presence of the competence of the grounds, the appellant?s issues 1-7 cannot be proclaimed as orphans for want of legal parentage. On the contrary, I declare the issues, like their progenitors, as competent and worthy of consideration by this Court.
Against the back drop of these legal expositions, the application, evolved by the respondent, to snuff life out of the appellant?s grounds 1-8, at their infancy, is bereft of any merit and deserves the penalty of dismissal. Consequently, I dismiss the application.

Consideration of the appeal.
During the hearing of the appeal, on 23rd January, 2019, learned counsel for the appellant, Bassey J. Ekanem, Esq., adopted the amended appellant’s brief of argument, filed on 7th June, 2016, and the appellant’s reply brief, filed on 14th January, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, C.O.P. Emeka, Esq., adopted the amended respondent’s brief of argument, filed on 8th January, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the amended appellant’s brief of argument, learned counsel distilled eight (8) issues for determination to wit:

1. Whether it was proper for the Respondent to commence the action in his own name and for the learned trial judge to award to him the sum claimed in spite of the fact that:

(a) The Respondent himself testified that the property did not belong to him but to three companies one of which was named an A-Z PLASTICS LTD.

(b) The subject matter of the deed was lawfully registered in the name of the company to which it belonged and the attempt at transferring the title to the government had failed because the Respondent had no authority to effect the transfer of titles.

(c) There are no evidence that the company had authorized the Respondent either to sell the properties on its behalf or to collect the sum claimed on its behalf.

(d) There was no evidence that the company had authorized the Respondent to sue on its behalf.

(e) The award made by the learned trial judge was not to the companies admitted by the Respondent himself as the owners of the properties.

(f) There was no evidence that the Respondent was the alter-ego of the companies and even then the law distinguishes between the alter-ego of a company and the company itself.

2. Whether a photocopy of a certified public document is inadmissible in evidence under all circumstances, and in particular, given the facts of the instant case, whether the learned trial judge was right when he expunged Exhibit 9 from the records as inadmissible in spite of the fact that the document had earlier been admitted without objection by the Respondent and in spite of the fact that the Respondent had referred to it extensively in the course of making his case.

3. Whether the Learned trial judge erred in law and violated the rules of judicial discipline, otherwise known as the rules of precedent, when he refused to follow the decision of the Supreme court in Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338 at 396 that a copy of a certified true copy of a public document is admissible in evidence.

4. Whether the learned trial judge erred in law when he failed to evaluate at all or sufficiently relevant and crucial evidence of some of the witnesses’ evidence which if properly evaluated would certainly have led to the dismissal of the Respondent’s claim.

5. Whether the learned trial judge erred in law when awarded interest arbitrarily on the judgment sum at the rate of 5% until the judgment sum is fully liquidated without any justification whatsoever and without stating the process of reasoning by which he came to the decision to award 5% and not the 10% claimed by the Respondent.

6. Whether the learned trial judge erred in law when he held that the Appellant had failed to prove that the price of the warehouses had been renegotiated in spite of the fact that the evidence of the Respondent as to the agreed price was open to all sorts of doubts having regard to the fact in particular that the Respondent failed to tender the Deed of Assignment which, on his own admission, had entered into with the Appellant.

7. Whether the learned trial judge erred in law when he failed to dismiss the Respondent’s claim, having, in effect, rejected the Respondent’s evidence that he was given only the signature page of the Deed of Assignment to sigh and upon his failure to produce the Deed that he so signed.

8. Whether the learned trial judge had jurisdiction to have entertained and determined Suit No. HA/118/2011: DR. IME SAMPSON UMANAH v. THE GOVERNMENT OF AKWA IBOM STATE, which judgement was delivered on 28th day of October, 2013, even when none of the Writs of Summons filed on 19/12/2011 and 24th January, 2012 respectively was signed by either the Plaintiff himself or Counsel on his behalf.

In the amended respondent’s brief of argument, learned counsel crafted five (5) issues for determination viz:

1. Whether the Respondent has Locus Standi to bring this action against the Appellant?

2. Whether Lower Court was right to expunge Exhibit 9 from the Record as inadmissible evidence, being a photocopy of a certified true copy of a public document?

3. Whether the Lower Court was right to uphold the Respondent’s claim for the outstanding sum on the contracted price for the sale of the warehouses subject-matter of the suit.

4. Whether the Lower Court rightly awarded 5% per annum as post-judgment interest to the Respondent?

5. Whether by a combined reading of Order 6 Rules 1, 2 and 3 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009, the Writ of Summons in this suit, which stated the name of the Legal Practitioner who prepared it, is null and void in the light of Sections 2 and 24 of the Legal Practitioners Act, for allegedly not having been ‘signed and stamped’ by the Claimant or his Legal Practitioner.

A close look at the two sets of verbose issues shows that they are identical in substance. In fact, the respondent’s issues can be, conveniently, subsumed under the appellant’s. In view of this sameness, I will decide the appeal on the issues formulated by the appellant: the undoubted owner of the appeal. For reasons that will unfold anon, I will begin with issue 8.

Arguments on issue 8

Learned counsel for the appellant explained when a Court would be competent to hear a matter as noted inMadukolu v. Nkemdilim (1962) NSCC 374. He submitted that the lower Court had no jurisdiction to hear the suit because the writs of summons (the originating processes) were not signed by the respondent or his lawyer as required by Order 6 Rule 2(3) of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 (hereunder abridged to the High Court Rules). He observed that the provision used the word ?shall? which signified command. He relied on ACN v. INEC (2014) All FWLR (Pt. 716) 460; Onochie v. Odogwu (2006) All FWLR (Pt. 317) 544. He posited that the unsigned writs of summons would make the suit incompetent and denied the lower Court of the jurisdiction to hear it. He cited Nweke v. Okafor (2007) 10 NWLR (Pt. 1043) 521; SLB Consortium Ltd. v. NNPC (2011) All FWLR (Pt. 583) 1902; Solidarity Intl. Ventures Ltd. v. Afro-shelters Ltd. (2009) 11 NWLR 126; Ministry of Works and Transport, Adamawa State v. Yakubu (2013) All FWLR (Pt. 694) 23; Kida v. Ogunmola (2006) all FWLR (Pt. 327) 402; Oyewopo v. Arasiola (2014) All FWLR (Pt. 719) 1192; Keystone Bank Ltd. v. J.O. Adebiyi & Sons (Nig.) Ltd. (2015) 1 NWLR (Pt. 1439) 98.

For the respondent, learned counsel enumerated the modes of commencement of action, under Order 3 Rule 1 of the High Court Rules, which included writ of summons. He reproduced the relevant portion of Order 6 of the High Court Rules. He reasoned that the duty of the respondent was to present the writ while the registrar should sign when the provision of Order 6 is read communally. He cited Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546; Okajie v. A.-G., Lagos State (1981) 2 NCLR 337. He asserted, in the alternative, that the failure to sign the writ should be treated as a mere irregularity particularly as the issue was not raised within a reasonable time. He referred to Order 5 of the High Court Rules. He stated that the appellant was never confused as the respondent and his lawyer’s name were endorsed in the writ. He described the issue as technicality which the Court would not allow. He relied on Broad Bank v. Olayiwola (2005) 3 NWLR (Pt. 912) 434. He took the view that the appellant lately raised the objection and was deemed to have waived the non-compliance. He cited O?dua Investment Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1. He postulated that the law that a writ of summons must disclose that it was prepared by a legal practitioner on the roll, pursuant to Sections 2 and 24 of the Legal Practitioner’s Act, did not relate to the signing of the writ.

Learned counsel made a thorough analysis of the decisions in the following cases: Okafor v. Nweke (supra); Auto Engineering Sales & Services Ltd. v. Mercantile Bank of Nigeria Plc (2016) LPELR 41185 (CA); Ministry of Works and Transport, Adamawa State v. Yakubu (supra); FBN Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; SLB Consortium Ltd. v. NNPC (supra); Kida v. Ogunmola (supra); Keystone Bank Ltd. v. Adebiyi (2015) 1 NWLR (Pt. 1439) 98; Solidarity International Ventures Ltd. v. Afro-shelters Ltd (supra); Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt. 1549) 282; Registered Trustees of Apostolic Church v. Rahonan Akindele (1967) 5 NSCC 11; Okwuosa v. Gomwalk (2017) 9 NWLR (Pt. 1570) 259; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; GTB Plc v. Innoson (Nig.) Ltd. (2017) 16 NWLR (Pt. 1591) 181; Bassey v. Edem (2016) LPELR 42054 (CA). He insisted that the facts of those cases were distinguishable from those of the case on appeal. He urged the Court not to declare the writ of summons void.

Resolution of the issue.

In due loyalty to the dictate of the law, I will attend to issue eight first. The reason is located in the meat of the issue which is plain. It centres on the jurisdiction of the lower Court to hear the suit which metamorphosed into this appeal. The law compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will pay total allegiance to this legal commandment so as not to insult the law.

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1;Ndaeyo v. Ogunaya (1977) 1 IMSLR 300;Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175.

A Court of law is invested with jurisdiction to hear a matter when: 1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and

2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, see Madukolu v. Nkemdilim (2006) 2 LC 208 (1962) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81;Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar?Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. These three ingredients must co-exist in order to vest jurisdiction in a Court.

Now, the appellant’s chief grievance is that the respondent’s writ of summons was not signed by a legal practitioner which impinged on the jurisdiction of the lower Court to entertain it. The appellants hinged his grouse on the provision of Order 6 Rule 2(3) of the High Court Rules.

It is settled law, that an originating process, like writ of summons, originating summons and notice of appeal, must be signed by a legal practitioner, who franked it, or a litigant in order to infuse validity into it. The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to ‘the Act’). In other words, an originating process not signed by a legal practitioner, as ordained by the above provisions of the Act and the rules of Court, is infested with incompetence with the attendant liability of expunction.

The incompetence divests the Court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church, v. Akindele (1967) NWLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Const. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1;FBN Plc. v. Maiwada (supra)/(2013) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220.

I have, in due allegiance to the law, inspected the record, the bedrock of the appeal, particularly at the residence of the writ of summons, sought to be jettisoned, which colonizes pages 2 and 3 and 150 and 151 of the mountainous record. It must be placed on record, pronto, that the writ of summons parented the respondent?s suit. I have given a microscopic examination to it. It was issued by C.O.P. Emeka, Esq of Auxano Law Consult of No. 1 Faramobi Ajike Street, Anthony village, Lagos. Nevertheless, I am unable to find, even with judicial lens, where the respondent’s counsel, C.O.P Emeka, Esq., who prepared it, signed it in due obedience to the provision of Order 6 Rule 2(3) of the High Court Rules which States that: (3) Each copy [originating process] shall be signed . by the Legal Practitioner or by the plaintiff or a claimant? The draftsman of the provision of Order 6 Rule 2(3) of the High Court Rules employed the word ‘shall’ which, in this con, implies compulsion/mandatoriness, see Okonkwo v. UBA Plc. (supra); Ugwuanyi v. NICON Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546; Adeosun v. Gov., Ekiti State (2012) 4 NWLR (Pt. 1291) 581; Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 175; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 502; BPS Constr. & Engr. Co. Ltd v. F.C.D.A (2017) 10 NWLR (Pt. 1572) 1.

Unarguably, the writ of summons, which is under attack of banishment, is a classic exemplification of an originating process: a process issued at the beginning of a judicial process to kick start an action. Since the writ of summons was not endorsed by a legal practitioner, who authored and issued it, it is tainted with an indelible incompetence.
In a spirited bid to arrest and amputate the long arm of this cardinal principle of, that an originating process must be endorsed by a legal practitioner to be valid, the respondent weaved a galaxy of defences.

The foremost one is that it is an irregularity as enshrined in the provision of Order 5 of the High Court Rules. Admittedly, the provision is a quintessence of an inbuilt safeguard to render non-conformity/compliance with the provisions of the High Court Rules as an irregularity which is incapable of nullifying any proceedings, see Famfa Oil Ltd. v. A.-G., Fed. (2003) 18 NWLR (Pt. 852) 453; MMA Inc. v. NMA (2012) 18 NWLR (Pt. 1333) 506; Udo v. R.T.B.C. & S (2013) 14 NWLR (Pt. 1375) 488; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134; NBC Plc. v. Ubani (2014) 4 NWLR (Pt. 1398) 421. Be that as it may, the provision is that of the rules of Court, a subsidiary instrument. One of the notable qualities of rules of Court is that, even though they are meant to be obeyed, they bow to the superiority of a statutory provision whenever there is a conflict between them, see Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; Katto v. CBN (1991) 9 NWLR (Pt. 214) 216; Nasir v. C.S.C., Kano State (2010) 5 NWLR (Pt. 1190) 253; SLB Consortium v. NNPC (supra); Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt. 1346) 1; Alawiye v. Ogunsanya (supra).

The provisions of Sections 2(1) and 24 of the Act are statutory provisions. In keeping with this law, the provision of Order 5 of the High Court Rules must take to flight on confrontation with them. This second fiddle principle tames as well as demolishes this defence. Another defence, raked up by the respondent, is that the issue amounted to worshiping technicality on the altar of substantial justice. Indisputably, nowadays, the Courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice. The ?spirit of justice does not reside in form and formalities, nor in technicalities,? see Bello v. A. ?G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbsola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. In the process of the juridical duel, however, the case law, rightly intervened and slaughtered technicality and buried it deeply under the temple of substantial justice. However, due compliance with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act ‘is not a mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal process. see Oketade v. Adewunmi (Supra), at 74, per Tobi, JSC; FBN Plc. v. Maiwada (supra); SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (supra). Besides, lack of endorsement of a writ of summons by counsel is ‘a fundamental irregularity that goes to the roots’, see Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420 at 434, per Eko, JSC. These, with due reverence, expose the poverty of the respondent’s defence on the point. It is disabled and cannot fly.

Again, the respondent set up the defence of waiver against the appellant by contending that the point was raised belatedly. As already noted, at the dawn of this resolution, with the aid of ex cathedra authorities, the issue of an unsigned writ of summons, in the eyes of law, renders it incompetent which borders on the jurisdiction of the Court. It admits of no argument, that parties cannot by consent, acquiescence, connivance, collusion, compromise, indolence, waiver or any guise bestow jurisdiction on a Court where none exists nor oust it of jurisdiction in the presence of one, see Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Okolo v. UBN (2004) 3 NWLR (Pt. 859) 87; Ukpong v. Comm. for Finance (2006) 9 NWLR (Pt. 1013) 187; Gafar v. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375; Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Oni v. Cadbury Nig. Plc (2016) 9 NWLR (Pt. 1516) 80; Kawawu v. PDP (2017) 3 NWLR (Pt. 1553) 420; Customary Court of Appeal, Edo State v. Aguele (2008) 3 NWLR (Pt. 1607) 369; FRN v. Solomon (2018) 7 NWLR (Pt. 1618) 201.

Moreover, the law has rightly declared the provisions of Sections 2(1) and 24 of the Act as ‘matters of substantive law which cannot be waived’, see SLB Consortium Ltd. v. NNPC (supra), at 332, per Onnoghen, JSC; Braithwaite v. Skye Bank Plc. (supra); FBN Plc. v. Maiwada (supra); Ndayako v. Santoro (2004) 13 NWLR (Pt. 889) 187. In effect, jurisdiction as a matter of substantive law is not amenable to waiver so as to avail the respondent. In sum, the doctrine of waiver, erected by the respondents, is impotent to infuse validity into the unsigned writ of summons.

I have, in due consultation with the law, demolished all the defences invented by the respondent. It will smell of judicial sacrilege to crown the respondent’s unsigned writ of summons with the toga of validity. Contrariwise, I declare it as smeared with incompetence and invalid.

It cannot be gainsaid that a writ of summons, an originating process, is the spinal cord of a suit. It is the foundation upon which all other processes and proceedings are anchored on in a matter. In other words, all other processes and proceedings owe their origin and validity to an originating process. It follows, that the writ of summons, which is under attack of expulsion, gave birth to all the other processes filed by the respondent and the proceedings in the action which transfigured into the appeal. Given this relationship, the incompetence of the writ of summons pollutes the purity of the other processes and proceedings and, ipso facto, render them incompetent. The reason is obvious. They have no substratum to perch and command any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513.

The legal consequences, which follow the incompetent writ of summons, are far-reaching. The respondents’ suit was not initiated by due process of law and the condition precedent for its institution was not satisfied as required by law. In the view of the law, a condition precedent is: ‘the one that delays the vesting of a right until the happening of an event’, seeAtolagbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. The result is that the lower Court was drained of the requisite jurisdiction to entertain the action ab initio.

It therefore with utmost respect, defiled the law when it heard the matter. Where a Court is not clothed with the jurisdiction to entertain a matter, the proceedings sprouting from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable nest of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).

In the eyes of the law, nullity denotes: ‘Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect’, see Lasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is dismissal. If a decision or proceeding is smeared with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Furthermore, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.

The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. Since the lower Court?s decision is offensive to the law, it must be mowed down by the unbiased judicial sword of this Court. In the end, I have no choice than to resolve the issue eight in favour of the appellants and against the respondents.

For the avoidance of doubt, the outcome of issue one renders the need to deal with the other issues otiose, see Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282. Where the jurisdiction of a Court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481. That will be the fate of the respondents’ suit which journeyed with the measured speed of Court processes, to this Court.

Before the last verdict, let me observe, by way of obiter, that this case, like all other such cases touching on this stubborn and recurring issue, craves for the meticulosity of lawyers in the management and control of matters from cradle to berth in the temple of justice. A lawyer ought not to treat any matter, or any aspect of it, with levity. The subsequent aftermath of such laxity may be caustic and catastrophic. A laissez-faire attitude, in handling briefs, has the potential to reverse the fate of a good case to a misfortune.

At once, it diminishes the gargantuan confidence the litigants usually repose in lawyers even as they (litigants) bear the unexpected and unfriendly brunt. It must be discouraged!

On the whole, having resolved the foremost issue eight in favour of the appellant, the destiny of the appeal is plain. It is imbued with merit. The appeal is allowed only on ground of want of jurisdiction of the lower Court to hear the suit. Consequently, Suit No. HA/118/2011, filed by the respondent, is struck out for being incompetent. The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful appeal.

Consideration of the cross-appeal.

Paradoxically, the respondent, who earned the favour of the lower Court, registered his protest with the decision by dint of a cross-appeal. The portion of the decision under contest is the lower Court’s sustenance of the statements on oath of the cross-respondent’s DW1 and DW2 after it had struck out the defendant’s counter-reply, upon which they were based, as a void process.

During the hearing of the cross-appeal, on 23rd January, 2019, learned counsel for the cross – appellant, C.O.P. Emeka, Esq., adopted the amended cross-appellant?s brief, filed on 15th February, 2017, as representing his arguments for the cross-appeal. He urged the Court to allow it. In the same vein, learned counsel for the cross-respondent, Bassey J. Ekanem, Esq., adopted the amended cross-respondent?s brief of arguments filed on 31st March, 2017, as forming his arguments against the cross-appeal. He urged the Court to dismiss it. Also, the cross-respondent filed an application, on 31st March, 2017, challenging the cross-appeal and the cross-appellant?s brief of argument.

Resolution of the cross-appeal.

Flowing from the outcome of the appeal, the cross-appeal falls, squarely, within the constricted four walls of an academic suit. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346 at 419, Tobi, JSC, incisively, explained the term, thus:

A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.

It is trite law that a Court is divested of the necessary jurisdiction to adjudicate over academic disputes. Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts. This is so even if their determination will enrich the jurisprudential content of the law, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442)103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.

In the glaring presence of this inelastic position of the law, the cross-appeal, to all intents and purposes, is rendered idle and spent. Its consideration and resolution in favour of the cross-appellant or the cross-respondent will not advance the cross-appellant?s chances of success nor deplete those of the cross-respondent in the appeal. Put the other way round, a resolution of the cross-appeal, either way, will be of no judicial utilitarian value to either of them premised on the result of the appeal. In contestably, Courts of law are not clothed with the jurisdiction to entertain academic suits. In view of these and in total loyalty to the dictate of the law, I strike out the cross-appeal for want of legal justification to treat it. The parties shall bear their costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA. I totally agree with the resolution of the preliminary objection and the jurisdictional issue. My Lord, in his characteristic manner eloquently resolved the issues leaving no room for any addition.

I join him to allow the appeal on the ground of jurisdiction by striking out Suit No. HA/118/2011 filed by the Respondent for being incompetent. To also say that the cross appeal becomes academic and of no value and therefore liable to be struck out. I abide by the other orders made therein.

MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, OBANDE F. OGBUINYA, JCA obliged me with a draft of the judgment just delivered. I agree with the reasoning and conclusion reached, which I adopt as mine.

I agree that there is merit in the appeal. Failure to endorse a Writ of Summons by counsel is a fundamental defect in the proceedings and fatal to a case. Therefore, a Writ of Summon not signed in accordance with Sections 2 (1) and 24 of the Legal Practitioners Act is incompetent ab initio. I too strike out the Suit at the lower Court for being incompetent. The cross-appeal is also struck out for being a moot point of academic character.

Appearances:

Bassey J. Ekanem, Esq. (DCL) with him, Samson Ogundele, Esq. (Pupil SC, Ministry of Justice, Akwa Ibom State)For Appellant(s)

C.O.P. Emeka, Esq. with him, D.A. Okey, Esq.For Respondent(s)