SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR v. DANIEL PESSU (2014)

SHELL PETROLEUM DEVELOPMENT COMPANY & ANOR v. DANIEL PESSU

(2014)LCN/7372(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/B/356/2006

RATIO

APPEAL: A REPLY BRIEF; THE IMPLICATION OF THE FAILURE OF AN APPELLANT TO FILE A REPLY BRIEF WHEN IT IS NECESSARY, WHEN DOES IT BECOME ABSOLUTELY NECESSARY TO FILE A REPLY BRIEF

The law seems to be settled that where an appellant fails to file a Reply Brief, when it is necessary to do so, he will be deemed to have conceded the points in the Respondent’s Brief: OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 D – E and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518. In DADA vs. DOSUNMU (2006) LPELR (909) 1 at 19, Onnoghen, JSC stated as follows: “Failure to file a reply brief to a respondent’s brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent and relevant in law.” See also MINILODGE LTD vs. NGEI (2009) LPELR (1877) 1 at 48.
However, it becomes absolutely necessary to file a Reply Brief where the Respondent incorporates a preliminary objection in the Respondent’s Brief of Argument. Where a Reply brief is not filed in such circumstances, the appellant will be taken as having conceded the point raised in the preliminary objection. See ALAYA vs. ISAAC (2012) LPELR (9301) 1 at 67 – 68, DAIRO vs. UNION BANK (2008) WRN 1 at 8 – 9 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. Howbeit, let me hasten to add that even though the law presumes that the points on issues so raised by the respondent have been conceded, the law in its wisdom recognizes that the preliminary objection is not thereby automatically upheld by the court. The court is still obligated to consider whether the preliminary objection is sustainable in law. See AGBABIAKA vs. OKOJIE (2004) 15 NWLR (PT 897) 503 at 522 and MACHIKA vs. IMAM (2010) LPELR (4448) 1 at 25 – 26. It is premised on this legal position that I will now proceed to consider the preliminary objection to see if it is sustainable in law. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

APPEAL: GROUNDS OF APPEAL; WHETHER THE GROUNDS OF APPEAL MUST RELATE TO THE DECISION APPEALED AGAINST IN ORDER TO BE COMPETENT

The law is now firmly established beyond peradventure that in order to be competent, the grounds of appeal must relate to the decision appealed against NDULUE vs. OJIAKOR (2013) LPELR (1989) 1 at 15, SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 and KALU vs. ODILI (1992) 5 (PT 240) 130. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING

It is settled law that an issue of jurisdiction is a fundamental issue and can be raised at any stage of the case and indeed even on appeal and the Court can even raise the issue suo motu. See IJEBU-ODE LOCAL GOVT. vs. BALOGUN & CO. LTD (1991) LPELR (1463) 1 at 27 and OLUTOLA vs. UNILORIN (2004) LPELR (2632) 1 at 10. In PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICAL COMPANY LIMITED (1992) LPELR (2915) 1 at 23-24, Belgore, JSC (as he then was) stated:
“This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raised viva voce as in this case.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT; JURISDICTION; THE CONSEQUENCE OF THE LACK OF JURISDICTION BY THE COURT

The law remains that where a court acts where it does not have jurisdiction or is otherwise incompetent, the entire proceedings are a nullity and liable to be set aside, no matter how well conducted: See MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13 and CHACHAROS vs. EKIMPEX LIMITED (1988) LPELR (840) 1 at 20. I am therefore unable to agree with the Respondent that Grounds 3 and 4 of the Grounds of Appeal are irrelevant and incompetent. The said grounds which involve issues of jurisdiction are highly relevant and competent. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT: JURISDICTION; THE JURISDICTION OF THE HIGH COURT OF A STATE

By Section 272(1) of the 1999 Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue, subject only to the enumerated jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution. The Federal High Court has been held to be a court of enumerated jurisdiction, a court whose jurisdiction is not delimited by statue, but whose jurisdiction is delineated in relation only to the subject matters enumerated therein. See OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (supra) at 585 per Nweze, JCA. So unlike the Federal High Court, the High Court of a State has the widest jurisdiction: (See NATIONAL UNION OF ELECTRICITY EMPLOYEES vs. BUREAU OF PUBLIC ENTERPRISES (2010) 7 NWLR (PT 1194) 538 at 571 D – E) to hear and determine any civil proceedings subject only to the enumerated jurisdiction of the Federal High Court. The rule of jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court except that which specially appear to be so. See ANAKWENZE vs. ANEKE (1985) 16 NSCC (PT 2) 798 at 803 or (1985) 1 NWLR (PT 4) 771 and MOBIL PRODUCING UNLIMITED vs. LASEPA (2003) 1 MJSC 112 at 127 B- C. It is for this reason that every superior court of record guards its jurisdiction jealously and before a court declines jurisdiction, it must be patently clear that the court indeed has no jurisdiction. See NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688 at 715 and A-G FEDERATION vs. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT 618) 187 at 223. So the only thing which will be outside the jurisdiction of a State High Court will be a cause of action in respect of those eighteen major items enumerated in Section 251(1) of the 1999 Constitution where exclusive jurisdiction has been vested in the Federal High Court: OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (supra). per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRACTICE AND PROCEDURE: PARTIES TO A LAW SUIT; WHO IS COMPETENT TO SUE AND BE SUED BEFORE ANY LAW COURT

The contention of the Appellants is that the Defendants sued are not juristic persons and that in the absence of competent defendants the court has no jurisdiction to entertain the action.
In ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA vs. EKE-SPIFF (2009) LPELR (3152) 1 at 50, Mahmud Mohammed JSC stated:
“As a general rule, only natural persons, that is to say, human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law court. In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given expressly or impliedly or by common law either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. See Fawehinmi vs. Nigerian Bar Association (No. 2) (1989) 2 N.W.L.R. (Pt. 105) 558 at 595. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRACTICE AND PROCEDURE: PARTIES TO A PARTY; WHETHER THE NAME OF A COMPETENT PARTY TO A SUIT MUST BE THE REAL NAME BY WHICH HE IS KNOWN IN THE CASE OF A NATURAL PERSON, AND, ITS CORPORATE NAME IN THE CASE OF A NON-NATURAL LEGAL PERSONALITY

PRACTICE AND PROCEDURE; COURT PROCESS; WHETHER A PARTY CANNOT AMEND OR EFFECT A CORRECTION IN A COURT PROCESS BY REPLACING OR SUBSTITUTING A NON-JURISTIC PERSON WITH ONE WITH JURISTIC CAPACITY TO SUE OR BE SUED

The law remains that a party cannot amend or effect a correction in a court process by replacing or substituting a non-juristic person with one with juristic capacity to sue or be sued since there was initially no party that could be replaced or substituted: OLU OF WARRI vs. ESI (1958) SCNLR 385, OKECHUKWU vs. NDAH (1967) NMLR 368, EHIDIMHEN vs. MUSA (2000) 8 NWLR (PT 669) 540 or (2000) LPELR (1051) 1 and USUAH vs. G.O.C. NIG LTD (supra) at 16. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT: JURISDICTION; WHEN IS A COURT COMPETENT AND THE EFFECT OF A DEFECT IN THE COMPETENCE OF AN ACTION ON THE JURISDICTION OF THE COURT

Jurisdiction is a crucial question of competence extrinsic to the adjudication on the merits. Lack of jurisdiction cannot be waived by one or both parties as it is a hard matter of law clearly beyond the compromise of the parties. The law on the point is picturesquely represented by the oft-quoted dictum of Bairamian, FJ in MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 at 595 as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
A defect in the competence of an action has a negative effect on the jurisdiction of the Court and snuffs out the life of adjudication from the Court. This is because jurisdiction is the fons et origo and threshold of judicial power and judicialism: the very lifeline and livewire of all proceedings in a court or tribunal without which the entire proceedings are a nullity however brilliantly they must have been conducted. See ROSSEK vs. ACB LIMITED (1993) 8 NWLR (PT 312) 382 at 437 C – G and 487 G – B, OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508, OKE vs. OKE (2006) 17 NWLR (PT 1008) 224, OKOLO vs. UNION BANK OF NIGERIA LIMITED (2004) 3 NWLR (PT 859) 87 and FGN vs. OSHIOMHOLE (2004) 3 NWLR (PT 860) 305 at 319 amongst a host of other cases. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. SHELL PETROLEUM DEVELOPMENT COMPANY
2. THE COMMANDING OFFICER NPF (SPY)
SHELL POLICE COMMAND, WESTERN DIVISION, OGUNU-WARRI Appellant(s)

AND

DANIEL PESSU Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Delta State in Suit No. W/402/2000 delivered on the 11th day of November 2005. At the Warri Judicial Division of the High Court of Delta State, the Respondent herein, as Plaintiff before the lower court claimed the following reliefs against the Defendant vide paragraph 14 of the Further Amended Statement of Claim
“14. WHEREOF the plaintiff claims against the defendant as follows:-
i. A Declaration that the purported discharge and for [sic] dismissal from service of the plaintiffs by the defendants is illegal, unlawful null and void and of no legal effect whatsoever.
ii. A Declaration that the plaintiff is still in the service and still in the employment of the 1st defendant.
iii. Payment of all the plaintiff salaries and all entitlements by plaintiff [sic] from September 2000 till date,
iv. The sum of N100,000,000.00 (One Hundred Thousand Million [sic] Naira) for the unlawful, illegal and wrongful detention of the plaintiff by the defendants from 28/8/200 [sic] to 30/8/2000.” (See page 31 of the Records).

The parties filed and exchanged pleadings and the action was contested on the pleadings as filed. The Respondent testified for himself in proof of his case and did not call any other witness while one witness testified for the Appellants in defence of the action. The brief facts leading on to the action are that the Respondent was a supernumerary police officer working at the Nigeria Police (SPY) Shell Police Command Ogunu Warri. He was posted to work on night shift at one of the 1st Respondent’s Offices on 27th August 2000. At the close of his beat that night he went home but upon returning to the office on 28th August 2000 to collect his keys which he forget, he was arrested on the allegation that there was an attempt to break into one of the offices the previous night that he was on duty. He was eventually released on 30th August 2000 after an orderly room trial which recommended his dismissal. Peeved by the turn of events, the Respondent instituted proceedings claiming the reliefs which I have already set out.

In its judgment which is at pages 58 -77 of the Records the lower Court entered judgment in favour of the Respondent as follows:
(1) A declaration is hereby made that the purported discharge and dismissal of Plaintiff from services of the Defendants is illegal, null and void and of no legal effect whatsoever.
(2) I hereby award the sum of N85,000,000.00 (Eighty Five Million Naira only) to the Plaintiff, as damages for his unlawful, illegal and wrongful detention by the Defendants from 28/8/2000 to 30/8/2000.

The Appellant being dissatisfied with part of the judgment lodged an appeal against the same. The original notice of appeal is at pages 78-80 of the records. Pursuant to the order of this court made on 13th March 2011, the Appellants filed their Amended Notice of Appeal on 23rd March 2011. The Records of Appeal having been transmitted, the parties filed and exchanged briefs of argument which were later amended. The Appellants’ Amended Brief of Argument is dated 1st April 2013, filed on 4th November 2013 and deemed as properly filed and served on 5th March 2014. The Respondent’s Amended Brief of Argument is dated 24th February, 2014 and was filed on 6th March 2014 pursuant to the order of court made on 5th March 2014.

The Appellants distilled three issues as arising for determination in their brief of argument, namely:
i. Whether on the face of the pleadings and evidence before the honourable Court, the trial State High Court has jurisdiction to entertain and indeed enter judgment in the Respondent’s claim before it which arose from action of members of the Nigeria Police Force, an agency of the Federal Government of Nigeria and the nature of the parties sued. (Ground 3 and 4 of Grounds of Appeal.)
ii. Whether the learned trial judge was right in awarding against the 1st Appellant the sum of N85,000.000.00 {Eighty-Five Million Naira} as damages for illegal arrest and detention of the Respondent when there was no pleading or evidence that the arrest and detention of the Respondent was at the instance of the 1st Appellant. (Ground 1 of Grounds of Appeal).
iii. Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment? (Ground 2 of Grounds of Appeal).

In arguing issue number one, the Appellants presented their postulations in two facets, viz., absence of jurisdiction on account of the action being against the Nigeria Police Force which is an agency of the Federal Government and lack of jurisdiction on account of the Appellants as sued not being juristic persons. In the Respondent’s Amended Brief of Argument, a preliminary objection was incorporated challenging some of the grounds of appeal and issues for determination distilled by the Appellant with respect to the substantive appeal. The Respondent formulated three issues for determination as follows:
1. Whether or not the learned trial judge had the jurisdiction to entertain and determine the suit of the Respondent. (Grounds 3 and 4)
2. Whether or not there was a contract of employment between the 1st Appellant and the Respondent. (Ground 2)
3. Whether or not the learned trial judge was right in law to have granted reliefs 1 and 4 in favour of the Respondent. (Ground 1).

At the hearing of the appeal, the learned counsel for the Respondent drew the attention of the court to his preliminary objection. Onome Egbon, Esq., learned counsel for the Appellants adopted the submissions in the Appellants’ brief and he urged the court to allow the appeal. He further stated that the Appellants did not file any reply to the Respondent’s preliminary objection. On his part, Efeosa lmade, Esq., of counsel for the Respondent adopted the submissions in respect of the preliminary objection and he urged the court to uphold the objection. With respect to the substantive appeal, learned counsel equally adopted the submissions in the Respondent’s Brief in respect thereof and he urged the court to dismiss the appeal and affirm the judgment of the lower court.

PRELIMINARY OBJECTION
The Respondent argued his preliminary objection in paragraph 3.00 on pages 4 to 6 of the Respondent’s Amended Brief of Argument. It is the Respondent’s contention that the Appellant only appealed against that part of the judgment where N85 million was awarded as damages for unlawful detention and the part where it was held that the Respondent was a staff of the 1st Appellant, in consequence of which the grounds of appeal must be accordingly circumscribed. It was posited that Grounds 3 and 4 which were outside the part of the judgment appealed against were irrelevant and incompetent. The cases of OSEYOMON vs. OJO (1993) 6 NWLR (PT 299) 344 at 361 and NIGER CONSTRUCTION LTD vs. OKUGBENI (1987) NSCC Vol. 18 (PT 1) 1259 at 1264 were relied upon.

It is the further contention of the Respondent that issue number three distilled by the Appellants does not relate to Ground 2 of the Amended Notice of Appeal and that being at variance, the said issue number three is incompetent and should be struck out. The case of UNITY BANK PLC vs. BOUARI (2008) 7 NWLR (PT 1086) 372 at 400 and S.P.D.C.N. LTD vs. AMADI (2010) 13 NWLR (PT 1210) 82 at 119 – 120 were cited in support.

With respect to issue number one distilled by the Appellants, the Respondent contended that the said issue does not arise from Grounds 3 and 4 of the Amended Notice of Appeal. That while the grounds complain about exercise of jurisdiction against the 2nd Appellant which is a non-juristic person and against the 2nd Appellant as an agency of the Federal Government, the issue raised and argued includes argument on the legal capacity of the 1st Appellant to sue and be sued in the matter. It was thus argued that the said issue not being covered by the grounds of appeal is irrelevant to the appeal and should be struck out. The case of OSINUPEBI vs. SAIBU (1982) 7 SC 104 was referred to.

RESOLUTION OF THE PRELIMINARY OBJECTION
As already stated, the Appellants’ counsel in arguing the appeal stated that he did not file any Reply brief. The law seems to be settled that where an appellant fails to file a Reply Brief, when it is necessary to do so, he will be deemed to have conceded the points in the Respondent’s Brief: OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 D – E and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518. In DADA vs. DOSUNMU (2006) LPELR (909) 1 at 19, Onnoghen, JSC stated as follows:
“Failure to file a reply brief to a respondent’s brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent and relevant in law.”
See also MINILODGE LTD vs. NGEI (2009) LPELR (1877) 1 at 48.
However, it becomes absolutely necessary to file a Reply Brief where the Respondent incorporates a preliminary objection in the Respondent’s Brief of Argument. Where a Reply brief is not filed in such circumstances, the appellant will be taken as having conceded the point raised in the preliminary objection. See ALAYA vs. ISAAC (2012) LPELR (9301) 1 at 67 – 68, DAIRO vs. UNION BANK (2008) WRN 1 at 8 – 9 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. Howbeit, let me hasten to add that even though the law presumes that the points on issues so raised by the respondent have been conceded, the law in its wisdom recognizes that the preliminary objection is not thereby automatically upheld by the court. The court is still obligated to consider whether the preliminary objection is sustainable in law. See AGBABIAKA vs. OKOJIE (2004) 15 NWLR (PT 897) 503 at 522 and MACHIKA vs. IMAM (2010) LPELR (4448) 1 at 25 – 26. It is premised on this legal position that I will now proceed to consider the preliminary objection to see if it is sustainable in law.

CHALLENGE ON COMPETENCE OF GROUNDS 3 AND 4 OF THE GROUNDS OF APPEAL
In the Notice of Appeal, the Appellants stated the “Part of the Judgment Appealed Against” to be:
“The part where the learned trial Judge awarded the sum of N85,000,000.00 (Eighty-Five Million Naira) to the Plaintiff against the Defendants as damages for unlawful detention and the part where it was held that the Plaintiff was a staff of 1st Defendant.”

It is clear from the foregoing that the Appellants grouse against the judgment of the lower Court is as it relates to the award of N85 million as damages and the decision that the Respondent was a staff of the 1st defendant. The law is now firmly established beyond peradventure that in order to be competent, the grounds of appeal must relate to the decision appealed against NDULUE vs. OJIAKOR (2013) LPELR (1989) 1 at 15, SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 and KALU vs. ODILI (1992) 5 (PT 240) 130.

Shorn of their particulars, Grounds 3 and 4 of the Amended Notice of Appeal read as follows:
“3. The learned trial Judge erred in law in entertaining this suit of the Plaintiff as it concerns the 2nd Defendant”
“4. The learned Honourable Court erred in law and on the facts in failing to hold that in the circumstance of this case and the parties therein the High Court of Delta State has no jurisdiction to entertain and enter judgment in the Respondent’s claim.”

Doubtless, it is as clear as crystal that the above grounds of appeal have absolutely nothing to do with the award of N85 million as damages or the decision that the Respondent is a staff of the 1st Appellant which are the issues that the Appellants have stated that they are dissatisfied with in the judgment of the lower court and which they appealed against. In the circumstances the said Grounds 3 and 4 are ordinarily irrelevant and incompetent NIGER CONSTRUCTION LTD vs. OKUGBENI (1987) LPELR (1993) 1 at 14 – 15, and they ought to be struck out. But there is a very vital issue involved in the said Grounds 3 and 4. The said grounds raise jurisdictional questions as to the competence of the court to entertain the action in the first place based on the fact that juristic persons were not before the Court as well as the contention that the parties are not those in respect of which a State High Court can exercise jurisdiction over.

Accordingly, even though on the face of it, Grounds 3 and 4 would seem not to relate to the part of the judgment appealed against as stated in the Notice of Appeal, the fact that they raise the question of jurisdiction necessarily connotes that they are valid grounds which can be taken since the success of the issue of jurisdiction will dispose of the entire matter, including of course the damages awarded and all findings and decisions reached. The law remains that where a court acts where it does not have jurisdiction or is otherwise incompetent, the entire proceedings are a nullity and liable to be set aside, no matter how well conducted: See MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13 and CHACHAROS vs. EKIMPEX LIMITED (1988) LPELR (840) 1 at 20. I am therefore unable to agree with the Respondent that Grounds 3 and 4 of the Grounds of Appeal are irrelevant and incompetent. The said grounds which involve issues of jurisdiction are highly relevant and competent.

CHALLENGE ON COMPETENCE OF ISSUE NUMBER THREE
The submission of the Respondent is that Issue number three distilled by the Appellants is at variance with Ground 2 from which the said issue is said to have been distilled. The Appellants Issue number three reads:
“Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment? (Ground 2 of Grounds of Appeal).”
The decision of the lower court appealed against as already set out in this judgment and contained in page 77 of the Records is as follows:
(1) A declaration is hereby made that the purported discharge and dismissal of Plaintiff from services of the Defendants is illegal, null and void and of no legal effect whatsoever.
(2) I hereby award the sum of N85,000,000.00 (Eighty Five Million Naira only) to the Plaintiff, as damages for his unlawful, illegal and wrongful detention by the Defendants from 28/8/2000 to 30/8/2000.

So this Issue number three as distilled questions whether the Respondent proved his case in order to have had judgment entered for him by the lower court. Now Ground 2 from which Issue number three has been distilled without its particulars is as follows:
“2. The learned trial Judge erred in law when he held that the Plaintiff was an employee of the 1st Defendant.”

Now, the judgment entered for the Respondent that the purported discharge and dismissal of the Plaintiff from the services of the Defendants is illegal, null and void and of no legal effect whatsoever necessarily connotes that the lower court considered the Respondent to be an employee of the 1st Defendant, 1st Appellant herein, otherwise there would have been no basis to declare the purported discharge and dismissal of the Plaintiff from the services of the Defendants illegal, null and void and of no legal effect whatsoever. It seems to me therefore that Issue number three which questions whether the respondent proved his case effectively questions whether the Respondent proved that he is an employee of the 1st Appellant which is the complaint in Ground 2 of the grounds of appeal.

There is now a shift in the emphasis of the courts from technical justice to doing substantial justice such that once the complaint in a ground of appeal is clear, such a ground; and I daresay, the issues distilled therefrom cannot be said to be incompetent. See AIGHOBAHI vs. AIFUWA (2006) 6 NWLR (PT 976) 270 or (2006) LPELR (267) 1 at 17 and DAKOLO vs. REWANE-DAKOLO (2011) LPELR (915) 1 at 43.

In the light of the foregoing, in so far as Issue number three distilled by the Appellants raises the question of whether the Respondent proved his case in order to entitled to judgment, it cannot be at variance with Ground 2 of the Grounds of Appeal from which it is distilled, which complains of the lower court having erred by holding that the Respondent was an employee of the 1st Appellant since it is on the basis of that holding that the declaration was made in favour of the Respondent that his discharge and dismissal from the services of the Appellants is illegal, null and void and of no effect whatsoever. I so hold.

CHALLENGE ON ISSUE NUMBER ONE
The Respondent’s submission is that Issue number one is not covered by any ground of appeal, I have earlier set out the said Issue number one stating that the Appellants approached the issue on two fronts, namely, that the action being also against an agency of the Federal Government, the State High Court does not have jurisdiction and secondly, that the Appellants as sued are not juristic persons.

Issue number one is said to have been distilled from Grounds 3 and 4 of the Grounds of Appeal. In my consideration of the challenge on the competence of the said grounds of appeal in this preliminary objection, I stated that the grounds raise the question of jurisdiction which can be raised at anytime. Be that as it may the first part of Issue number one which deals with the court exercising jurisdiction over agencies of the Federal Government is clearly covered by the said Grounds 3 and 4. It is only the second part of the said Issue number one on the juristic capacity of the 1st Appellant that has not been specifically covered by any of Grounds 3 and 4. However, since the question of the juristic personality of the 1st Appellant involves the competence of the court, since the court cannot exercise jurisdiction over jural units that are not legal persons, it involves an issue of jurisdiction which can be raised at anytime, indeed even viva voce, as evident in the case of PETROJESSICA ENTERPRISES LTD vs. LEVENTIS TECHNICAL COMPANY LIMITED (supra). Consequently I am not enthused by the Respondent’s contention that Issue number one is not covered by any ground of appeal.

In all therefore, having duly considered the Respondents’ preliminary objection, I find the same to be unmeritorious. The same is accordingly dismissed.
Having disposed of the preliminary objection, I can now see my clear to approach the stable door in order to mount the stallion for a consideration of the appeal on the merits.

THE APPEAL
Issue number one distilled by the Appellants raises the issue of jurisdiction of the lower court to entertain the action. This is the same as the Respondent’s Issue number one. The Appellants Issue numbers two and three deal with whether the lower court was right in awarding the sum of N85,000,000.00 as damages in favour of the Respondent and whether the Respondent proved his case. It seems to me that these two issues are interwoven and can be taken together. I say so because it is on account of the fact that the lower court found on the evidence before it that the Respondent proved his case that led to the sum of N85 million being awarded in his favour as damages. Equally issue numbers two and three as distilled by the Respondent all deal with whether the Respondent proved his case. Issue number two raises the poser whether there was a contract of employment between the 1st Appellant and the Respondent while issue number three questions whether the lower court was right to have granted reliefs 1 and 4 in favour of the Respondent. Now, it seems to me that it was because the lower court found that there was a contract of employment between the 1st Appellant and Respondent that it entered judgment for the Respondent to the effect that the discharge and dismissal from the services of the Appellants is illegal, null and void and of no effect whatsoever. At the risk of being circular, the award of N85 million as damages in favour of the Respondent, which is relief 4, was made because the lower court held that the Respondent had established his claim in that regard. In view of the foregoing analysis of the issues for determination distilled by the parties on both sides of the divide, it does appear that the said issues are six and one-half dozen of the other. It seems to me therefore that the issues as succinctly encapsulated by either of the parties would suffice for the determination of this matter. In this wise I find issue number one as distilled by the Respondent as apt for consideration of the question of jurisdiction raised; while issue number three as distilled by the Appellants is distensible and issue number two as distilled by the Appellants and issue numbers two and three as distilled by the Respondent can be subsumed under the Appellants issue number three. In view of this, the two issues on which I will presently consider and determine this appeal are as follows:
1. Whether or not the learned trial judge had the jurisdiction to entertain and determine the suit of the Respondent?
2. Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment?

SUBMISSIONS ON ISSUE NUMBER ONE
Whether or not the learned trial judge had the jurisdiction to entertain and determine the suit of the Respondent?

The Appellants submit that the lower court did not have the jurisdiction to entertain the action because the action was against the Nigeria Police Force which is an agency of the Federal Government and that the Appellants who were sued as Defendants in the lower court were not juristic persons.

It was contended that from the pleadings and evidence it was evident that the action was against the Nigeria Police since by virtue of Section 2 of the Police Act 2004, a supernumerary police officer which is what the Respondent and 2nd Appellant are, are members of the Nigeria Police Force and therefore the determination or dismissal from employment of any police officer is outside the powers of the 1st Appellant and that the claim of detention by the police which is the subject of Relief 4 relates to the executive or administrative action of the Federal Government which is within the exclusive jurisdiction of the Federal High Court. The cases of MINISTER OF WORKS & HOUSING vs. SHITTU (2008) ALL FWLR (PT 401) 847, UNIVERSAL TRUST BANK OF NIGERIA LTD vs. UKPABIA (2001) FWLR (PT 51) 1889 and AYENI vs. UNIVERSITY OF ILORIN (2000) 2 NWLR (PT 644) 290 were referred to. The Appellants maintained that the State High Court did not have jurisdiction to entertain the claims of the Respondent.

On the issue of the juristic capacity of the Appellants, it was submitted that the names of the Appellants as reflected in the Writ of Summons are not persons known to law, in consequence of which the court did not have the competence to adjudicate between the parties. The case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR (PT 2) 581 was referred to. It was posited that an action can only be brought by or against a natural person or against a party that has been given the right by statute, expressly or impliedly, or by common law either a legal person by the name in which it is sued or a right to sue or be sued by that name. The cases of FAWEHINMI vs. NBA (No. 2) (1989) 2 NWLR (PT 105) 588 at 595 and CARLEN NIG. LTD vs. UNIJOS (1994) 1 NWLR (PT 323) 631 were cited in support.

The Appellants argued that the name of the 1st Appellant as disclosed in the writ does not disclose that the 1st Appellant is a legal person and that being a limited liability company registered under the Companies and Allied Matters Act, the 1st Appellant cannot be sued except in its incorporated name which by Section 29 of the Companies and Allied Matters Act must end with the word “Limited”. It was then contended that the 1st Appellant as sued lacks the capacity to be sued, consequent upon which the action was liable to be struck out. The cases of BANK OF BARODA vs. IYALABANI LTD (1998) 2 NWLR (PT 539) 600 and ATAGUBA vs. GURA (2005) 126 LRCN 982 at 985 ratio 1 were relied upon. It was submitted that the Respondent purporting to regularize the name of the 1st Appellant in the Further Amended Statement of Claim without leave of court to amend the process did not confer on the 1st Appellant the status of a legal person to be sued in law. The case of NJEMANZE vs. SHELL BP PORT HARCOURT (1966) ALL NLR 8 was referred to.

With respect to the 2nd Appellant, it was submitted that the name by which it was described on the writ was not that of a legal person, but a position, office or post. The case of AGBONMAGBE BANK LTD vs. GENERAL MANAGER, G.B. OLLIVANT LTD (1961) ALL NLR 125 was relied upon. The Appellants concluded that since they were non-juristic persons the lower court lacked jurisdiction to entertain the suit.

In reply, the Respondent submitted that it is the claim before the court that determines the jurisdiction of the court and that the reliefs claimed were predicated on contract of employment between the 1st Appellant and the Respondent, damages resulting from breach of the contract by the 1st Appellant and the tortuous liability of the Appellant for the wrongful and unlawful detention of the Respondent. It was posited that the reliefs claimed were outside the jurisdiction of the Federal High Court. The case of ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT. 921) 392 was referred to.

The Respondent maintained that the reliefs claimed did not fall within Section 251(1) of the 1999 Constitution and that the fact that a party to an action is an agency of the Federal Government cannot ipso facto clothe the Federal High Court with jurisdiction; and that all matters which did not fall within Section 251 of the 1999 Constitution were still within the jurisdiction of a State High Court. The cases of FMBN vs. UWADIAE (2004) 10 NWLR (PT 882) 626 at 652 – 653, MINISTER OF WORKS & HOUSING VS. TOMAS (2002) 2 NWLR (PT 752) 740 AT 776, OMOSOMWAN VS. CHIEDOZIE (1998) 9 NWLR (PT 566) 447, ONUORAH vs. K.R.P.C LTD (supra) at 405 and OLADIPO vs. N.C.S.B (2009) 12 NWLR (PT 1156) 583 at 585 were cited in support.

It is the further submission of the Respondent that the Appellants contention that the Respondent is not an employee of the 1st Appellant, but a supanumerary police officer was erroneous. Section 18 of the Police Act 2004 was referred to on the manner of appointment of a supernumerary police officer and it was opined that the labelling of someone as a supernumerary police officer does not make him one. The case of JOHNSON vs. MOBIL PRODUCING (NIG) UNLIMITED (2010) 7 NWLR (PT 1194) 462 was referred to.

On the submission that the Appellants were not juristic persons, the Respondent contended that the Further Amended Statement of Claim had referred to the 1st Appellant’s name with the word “Limited” added thereto and that though the word “Limited” was inadvertently omitted in the writ of summons, the defect was cured in the Further Amended Statement of Claim which supersedes the writ of summons. The Respondent stated that the Appellants did not oppose the amendment to the pleading and that issues were never joined as to whether the 1st Appellant was not a juristic person, The Respondent maintained that the Appellants can therefore not be heard to complain about the legal status of the 1st Appellant on appeal since they failed to object to the amendment to cure the omission at the trial court. The case of N.U.B. LTD vs. SAMBA PET. CO. LTD (2006) 12 NWLR (PT 993) 98 at 123 was relied upon.

The Respondent pointedly argued that the Appellants admitted paragraph 2 of the Further Amended Statement of Claim wherein it was pleaded that the 1st Appellant was a limited liability company and that the Appellants had therefore waived their rights and were estopped from asserting that the 1st Appellant is not known to law because of the omission of the word “Limited” from the 1st Appellant’s name, since that would be approbating and reprobating. The cases of OBI ODU vs. DUKE (No.1) (2005) 10 NWLR (PT 932) 81 at 98, ADEOGUN vs. FASOGBON (2011) 8 NWLR (PT 1250) 427 at 453 and UDE vs. NWARA (1993) 2 NWLR (PT 278) 638 at 662 were cited in support. The Respondent finally contended that in order to ascertain the legal capacity of the 1st Appellant; it is the Further Amended Statement of Claim which supersedes every other process that has to be considered.

With regard to the juristic personality of the 2nd Appellant, the Respondent submitted that the 2nd Appellant is a natural person whose identity and existence were unmistakable to the parties throughout the proceedings at the trial court. The case of JEOBA vs. OWONIFARI (1974) ALL NLR 631 at 636 – 637 was referred and it was conclusively submitted that the lower court had the jurisdiction to entertain and determine the action.

RESOLUTION OF ISSUE NUMBER ONE
The issue of jurisdiction raised by the Appellants falls within two limbs. The first limb deals with whether the Respondent’s cause of action falls with the exclusive jurisdiction conferred upon the Federal High Court by Section 251(1) of the 1999 Constitution, in which case the lower Court, a State High Court will not have jurisdiction to entertain the matter; while the second limb deals with whether the Appellants are juristic persons who can sue and be sued.

On the question of whether the cause of action falls within the jurisdiction of the Federal High Court, the Respondent’s counsel has rightly submitted that it is the claim before the Court that determines the jurisdiction of the Court. See OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 23. I will set out the reliefs claimed by the Respondent once again. They are as follows:
1. A declaration that the purported discharge and for dismissal from service of the Plaintiffs by the defendants is illegal, unlawful null and void and of no legal effect whatsoever.
2. A declaration that the plaintiff is still in the service and still in the employment of the 1st defendant.
3. Payment of all the plaintiff salaries and all entitlements by plaintiff from September 2000 till date.
4. The sum of N100,000,000,00 (One Hundred Thousand Million Naira) for the unlawful, illegal and wrongful detention of the Plaintiff by the defendant from 28/8/200 to 30/8/2000.

The case of the Respondent as made out on the pleadings is that he is an employee of the 1st Appellant. It is agreed on all sides that the 1st Appellant is a private limited liability company. Whether the Respondent is actually an employee of the 1st Appellant is a totally different kettle of fish, which does not alter the fact that it is the case made out by the Respondent. The reliefs claimed by the Respondent stem from this alleged contractual relationship and for tortious wrongs he allegedly suffered in the course of the said employment relationship.

The Respondent’s action was commenced at the High Court of Delta State, a State High Court. By Section 272(1) of the 1999 Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue, subject only to the enumerated jurisdiction of the Federal High Court under Section 251(1) of the 1999 Constitution. The Federal High Court has been held to be a court of enumerated jurisdiction, a court whose jurisdiction is not delimited by statue, but whose jurisdiction is delineated in relation only to the subject matters enumerated therein. See OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (supra) at 585 per Nweze, JCA. So unlike the Federal High Court, the High Court of a State has the widest jurisdiction: (See NATIONAL UNION OF ELECTRICITY EMPLOYEES vs. BUREAU OF PUBLIC ENTERPRISES (2010) 7 NWLR (PT 1194) 538 at 571 D – E) to hear and determine any civil proceedings subject only to the enumerated jurisdiction of the Federal High Court.

The rule of jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court except that which specially appear to be so. See ANAKWENZE vs. ANEKE (1985) 16 NSCC (PT 2) 798 at 803 or (1985) 1 NWLR (PT 4) 771 and MOBIL PRODUCING UNLIMITED vs. LASEPA (2003) 1 MJSC 112 at 127 B- C. It is for this reason that every superior court of record guards its jurisdiction jealously and before a court declines jurisdiction, it must be patently clear that the court indeed has no jurisdiction. See NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688 at 715 and A-G FEDERATION vs. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT 618) 187 at 223. So the only thing which will be outside the jurisdiction of a State High Court will be a cause of action in respect of those eighteen major items enumerated in Section 251(1) of the 1999 Constitution where exclusive jurisdiction has been vested in the Federal High Court: OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (supra).

The contention of the Appellants is that the Respondent’s claim falls within Section 251(1)(q) and (r) of the 1999 Constitution which vests exclusive jurisdiction in the Federal High Court in respect of civil causes and matters dealing inter alia, with interpretation of the Constitution as it affects the Federal Government or any of its agencies and for any action or proceedings affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. Let me reiterate that the case made out by the Respondent is that he is an employee of the 1st Appellant, a Private Limited Liability Company. Accordingly, the validity of the executive or administrative decision with regard to his dismissal from service will not be a decision made by the Federal Government or any of its agencies.

Accordingly, having given an insightful consideration to the reliefs claimed by the Respondent, I am satisfied that they are not in respect of matters that fall within the provisions of Section 251(1) of the 1999 Constitution, wherein exclusive jurisdiction has been vested in the Federal High Court.

JURISTIC CAPACITY
The law is that for a suit to be competent for adjudication by a court of law, there must be at least a competent plaintiff and a competent defendant, in the sense that both are juristic persons who can sue and be sued. Where the existing plaintiff or defendant lacks competence it will render the action incompetent thereby robbing the court of the requisite jurisdiction to entertain the action: AWOYE vs. OBASANJO (2006) ALL FWLR (PT 334) 1967 and USUAH vs. G.O.C. NIG. LTD (2012) LPELR (1913) 1 at 13 – 14.

By Order 1 Rule 2(1)(a) of the High Court Civil Procedure Rules 1988 of the defunct Bendel State, as applicable in Delta State, being the adjectival law in force at the time the action was filed at the lower court and which therefore governs the proceedings: See OWATA vs. ANYIGOR (1993) 2 NWLR (PT 276) 380, the kind of action commenced by the Respondent is one to begun by a writ. The writ of summons in this matter is at pages 1 – 2 of the Records. It shows the Defendants on record (now Appellants) as:
“1. SHELL PETROLEUM DEVELOPMENT COMPANY
2. THE COMMANDING OFFICER NPF (SPY) SHELL POLICE COMMAND, WESTERN DIVISION, OGUNU-WARRI”

The Respondent tacitly admitted that the 1st Appellant as sued on the writ is not a legal person and further submitted that the inadvertent omission of the word limited in its name was cured in the Further Amended Statement of Claim, the application of which to amend, the Appellants did not oppose. It was then posited that the Appellants had waived their right to object. The Respondent further submitted that the 2nd Appellant is a natural person whose identity and existence was unmistakeable to the parties.

Now, the law is that the name of a competent party to a suit must be the real name by which he is known in the case of a natural person, and, its corporate name in the case of a non-natural legal personality. See ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA vs. EKE-SPIFF (supra) at 51. The contention of the Respondent if I understand it clearly is that the name in which the 2nd Appellant has been sued is the real name by which a natural person is known. I am not enamoured by this contention. It cannot be doubted that the 2nd Appellant as sued refers to an office, title or post which is not one of the jurat units that has been given the capacity to sue or be sued eo nomine. See AGBONMAGBE BANK vs. GENERAL MANAGER, G.B. OLLIVANT NIG LTD (supra). Clearly therefore the 2nd Appellant is not a legal person: NIGERIAN NURSES ASSOCIATION vs. A-G FED. (1981) 11 – 12 SC 1.

The contention of the Respondent that the inadvertent omission in the name of the 1st Appellant was amended without opposition is not borne out by the Records. While it is correct that a statement of claim supersedes the writ of summons, this does not extend to critical issues like the parties as designated in the writ of summons. There cannot be any addition, alteration or amendment to the parties endorsed on the writ of summons by the mere amendment to the statement of claim. This is so because the action is initiated by the writ of summons and any charges in the designation of the parties to the action can only be effected by an amendment to the writ of summons. In any event, there is nowhere in any of the two applications to amend the Statement of Claim on pages 16 – 20 and 27 – 31 of the Records where leave was sought to amend the name by which the 1st Appellant was sued by supplying the word “Limited” or otherwise. It seems that the Respondent’s counsel without approaching the court and obtaining an order in that regard, from the comfort of his Law office altered the name of the 1st Appellant as it appears on the processes. This cannot be. While the Respondent’s counsel had all the liberty in the world to do whatever he chose with his process before filing the same in court, after the suit was filed, the court became dominis litis and it was not within the bounds of the Respondent to effect any corrections, amendments or additions without approaching the court.

In any event, the Respondent tacitly conceding the omission of the word “Limited” in the name of the 1st Appellant on the writ of summons is a pointer to the fact that the 1st Appellant as sued is not a legal person. In such circumstances even the purported correction which I have found was never made pursuant to any court order cannot be made. The law remains that a party cannot amend or effect a correction in a court process by replacing or substituting a non-juristic person with one with juristic capacity to sue or be sued since there was initially no party that could be replaced or substituted: OLU OF WARRI vs. ESI (1958) SCNLR 385, OKECHUKWU vs. NDAH (1967) NMLR 368, EHIDIMHEN vs. MUSA (2000) 8 NWLR (PT 669) 540 or (2000) LPELR (1051) 1 and USUAH vs. G.O.C. NIG LTD (supra) at 16.

The Respondent further contended that since the Appellants admitted the averment in the Further Amended Statement of Claim that the 1st Appellant is a limited liability company, they have waived their right to object to the juristic capacity of the 1st Appellant as they cannot approbate and reprobate. The right which the Respondent submits has been waived is the right to have a proper and competent party before the court. Such a right is so fundamental that it cannot be waived. If somebody has not been shown, in law, to be competent to sue or be sued, to waive such a right will lead to injustice. The 1st Appellant is not a competent party and has never been from the outset. See ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA vs. EKE-SPIFF (supra).

In view of all I have said thus far, neither of the Appellants is a juristic person. The Respondent did not commence the action against proper parties. It is hornbook law that a court cannot engage in adjudication when the proper parties are not before it. In law a person must qualify as a proper party either as plaintiff or defendant before any court can exercise its jurisdiction. There is absolutely nothing to show that either of the Appellants, in the name sued, is a juristic person. Their lack of jural capacity robs the court of jurisdiction to entertain the action. See OLORIODE vs. OYEBI (1984) 1 SCNLR 390, PLATEAU STATE GOVT. vs. A.G. FEDERATION (2006) 3 NWLR (PT 967) 346 at 423 and ZAIN NIGERIA LTD vs. ILORIN (2012) LPELR (9249) 1.

The defect in competence of this action occasioned by the Appellants, who were sued as Defendants in the lower court, not being juristic persons and hence not proper parties, is such that the lower court had no jurisdiction to exercise. This issue is therefore partly resolved in favour of the Appellants as it relates to their juristic capacity.

SUBMISSIONS ON ISSUE NUMBER TWO
Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment.

It is the submission of the Appellants that the lower court was wrong when it awarded damages for the illegal arrest and detention of the Respondent, when there was no evidence that the arrest and detention of the Respondent was at the instance of the 1st Appellant. It was contended that the Respondent did not plead that the 1st Appellant instigated his arrest and detention and there was also no evidence in that regard. It was posited that there was no evidence that the 1st Appellant expressly directed the Police in their normal duties to arrest and detain the Respondent and that it was on the initiative of the Police that the Respondent was arrested. The cases of McLAREN vs. JENNINGS (2003) 3 NWLR (PT 808) 470 at 473, GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 883 and OWOMERO vs. FLOUR MILLS (NIG) LTD (1995) 9 NWLR (PT 421) 622 at 624 were referred to.

On the award of N85m as damages, the Appellants stated that the award was predicated on the purported unlawful detention of the Respondent by the Police in the exercise of police duties. The Appellants contended that the award of N85 million to the Respondent, a police constable on a monthly salary of N9,100.00 for detention for two days was ridiculously too high and an erroneous estimation of damages; and that in such a situation an appellate court can interfere. The case of MOMODU vs. UNIVERSITY OF BENIN (1997) 1 NWLR (PT 512) 325 was cited in support.

It is the further submission of the Appellants that the Respondent merely stated that he was detained for two days without stating where he was detained, whether he was tortured or suffered in any manner during the period of detention. They maintained that in assessing damages, the amount to be awarded should be such that fairly compensates a plaintiff for his loss and not one that turns him into a nouveau riche. The cases of A.G FEDERATION vs. AJAYI (2000) 12 NWLR (PT 682) 509 at 535, ORJI vs. ANYASO (2002) 2 NWLR (PT 643) 1 and NWACHUKWU vs. EGBUDU (1990) 3 NWLR (PT 139) 435 at 438 were referred to.

The Appellants further argued that from the evidence, the Respondent was a supernumerary police officer who was subject to discipline by the Police and that his arrest and detention at the instance of the police were disciplinary measures and were therefore neither illegal nor unlawful. The Appellants asserted that it was wrong for a lower court to award damages to a party out of sympathy borne out of extraneous consideration rather than legal evidence with probative value. The case of ASTRA IND. LTD vs. NIGERIA BANK OF COMMERCE AND INDUSTRY (1997) 1 NWLR (PT 483) 574 at 580 ratio 7 was referred to

The Appellants argued that it was wrong for the lower court to have held that the Respondent had proved his case on the balance of probabilities and that the purported discharge and dismissal of the Respondent from the services of the Appellants is illegal, null and void and of no legal effect whatsoever. lt was posited that the evidence adduced by the DW1 showed that the Respondent was not an employee of the 1st Appellant, but a supernumerary police posted to the 1st Appellant; and that by Exhibit D, it was the Police Force that dismissed the Respondent.

The Respondent in his reply submits that the Appellants admitted in paragraph 5(d) of the Joint Amended Statement of Defence that there was a recommendation to dismiss the Respondent from the 1st Appellant’s employ and that therefore what was admitted needed no further proof. lt was further submitted that the Respondents averments in paragraphs 16 and 17 of the Further Amended Statement of Claim that his employment was regulated by the 1st Appellant’s policy regulation stating his conditions of employment were not denied and are accordingly deemed to have been admitted. The case of OLALE vs. EKWELENDU (1989) 4 NWLR (PT 115) 326 at 359 – 360 was referred to.

The Respondent posited that the Appellants failed to produce the document regulating the Respondent’s condition of service, despite the notice to produce served on them, and that there was evidence from the Respondent which was never challenged on the existence of a document guiding his services with the 1st Appellant. The testimony of the DW1 to the effect that it is the 1st Appellant that pays Respondents salary plus allowance was said to be an admission against interest which strengthens the Respondent’s case. The cases of ONISAODU vs. ELEWUJU (2006) 13 NWLR (PT 998) 517 at 529 and EIGBE vs. N.U.T (2008) 5 NWLR (PT 1081) 604 were relied upon. The Respondent maintained that the pleadings and evidence, as rightly found by the lower court at pages 71 -72 of the Records, established that a contract of employment existed between the 1st Appellant and the Respondent.

On the award of N85m as damages, the Respondent submitted that it is not disputed that the Respondent was detained between 28th August 2000 and 30th August 2000 as the specific averments in paragraphs 8 – 15 of the Further Amended Statement of Claim were not denied by the Appellants, who only gave a general traverse in paragraph 4 of the Statement of Defence. The Respondent posited that any trespass to the person, wrongful and illegal detention gives a right of action and that damages could be awarded therefore without a Plaintiff giving evidence to establish his cause of action or claim any specific amount of damage. The case of OKONKWO vs. OGBOGU (1990) 5 NWLR (PT 449) 420 at 435 was cited in support.

The Respondent further submitted that his arrest and subsequent detention was at the instance of the 1st Appellant’s staff and that the said staff were actively instrumental in setting the law in motion against the Respondent. The Respondent contended that the official acts of the 2nd Appellant in respect of the arrest and detention of the Respondent binds the 1st Appellant who is the employer of the 2nd Appellant by virtue of the employer/employee relationship covered by the Shell Policy (SPY) Regulation. The 1st Appellant it was posited was vicariously liable for the tortuous acts of the 2nd Appellant. The case of ONYEDINMA vs. NNITE (1997) 3 NWLR (PT 493) 333 at 346 was referred to.

The Respondent further argued that in an action for wrongful detention, damages are recoverable for the injury to the liberty and feelings of the person, id est indignity, mental suffering, disgrace and humiliation. The Respondent stated that the award of damages is at the discretion of the court and that the N85m awarded as damages by the lower court was reasonable and justified. The cases of NPA vs. RAHMAN BROS LTD (2010) 17 NWLR (PT 122) 100 at 121, UBN PLC vs. AJABULE (2011) 18 NWLR (PT 1278) 152 at 178, INCAR NIG LTD vs. BENSON TRANSPORT LTD (1975) 3 SC 117 and OSUJI vs. ISIOCHA (1989) 3 NWLR (PT 111) 623 at 636 were cited in support. The Respondent then opined that the amount awarded as damages by the lower court can only be altered on appeal if it is to be shown to be manifestly too high or awarded on entirely wrong principles. The cases of UBN PLC vs. AJABULE (supra), BALA vs. BANKOLE (1986) 3 NWLR (PT 27) 141 and IJEBU ODE LOCAL GOVT. vs. ADEDEJI (1991) 1 NWLR (PT 166) 136 were relied upon.

It is the further contention of the Respondent that the evidence in support of the award of general damages as found by the lower court at pages 74, 75 and 76 were credible, unchallenged and uncontroverted. The Respondent submitted that the unconstitutional conduct of the Appellants by wrongfully detaining him and trying him illegally in a kangaroo court influenced the damages awarded. The case of C.D. (NIG) LTD vs. SCOA (NIG) LTD (2007) 6 NWLR (PT 1030) 300 at 363 was referred to. The Respondent posited that the damages awarded can only be reversed if the Appellants prove that the lower court acted on a wrong principle of law or that there was erroneous estimate of the damages. The case of SABIRU MOTORS LTD vs. RAJAB ENTERPRISES LTD (2002) 7 NWLR (PT 766) 243 at 260 – 261 was cited in support.

In a rather interesting contention, the Respondent submitted that the Appellants did not appeal against the finding of facts made by the lower court on pages 74, 75 and 76 of the Records and that the said findings remained binding and conclusive as the Appellants are deemed to have accepted the same and the Appellate Court cannot embark on a voyage of discovery to discover if the said findings not appealed against were correct. The cases of ALAKIJA vs. ABDULAI (1998) 6 NWLR (PT 552) 1 at 24, ODIASE vs. AGHO (1972) 1 ALL NLR (PT 1) 170, MANAGEMENT ENTERPRISES vs. OTUSANYA (1987) 2 NWLR (PT 55) 179 at 193 – 194 and OBAJINMI vs. ATTORNEY GENERAL (1968) NMLR 96 were relied upon. It was further submitted that the Appellants did not furnish full particulars of the misdirection or error of law in the award of damages by the lower court and the appellate court was therefore powerless to interfere. The cases of OKWEJIMINOR vs. GBAKEJI (2008) 5 NWLR (PT 1079) 172 at 200 – 201 and BELLO vs. RINGIM (1991) 7 NWLR (PT 206) 668 were referred to.

RESOLUTION OF ISSUE NUMBER TWO
The effect of the resolution of issue number one in favour of the Appellants is that since the lower court did not have jurisdiction, the judgment it entered in favour of the Respondent no matter how erudite cannot stand, since the defect of want of jurisdiction is extrinsic to the adjudication. This would ordinarily make unnecessary any consideration of this issue number two, but since this is an intermediate appellate court, I am obliged to consider this second issue, perchance, that I am wrong in the decision that the lower court did not have jurisdiction to entertain the matter.

This issue directly questions whether on the available evidence the lower court was justified in entering judgment for the Respondent. There are two aspects to the judgment of the lower court. The first is the grant of relief that the discharge and dismissal of the Respondent from the services of the 1st Appellant is illegal, null and void and of no effect whatsoever, while the second is the award of damages for unlawful, illegal and wrongful detention.

Ground 2 of the Amended Notice of Appeal challenges the grant of the relief that the discharge or dismissal of the Respondent from the service of the 1st Appellant is illegal null and void and of no effect whatsoever. The particulars of the error in law alleged in the said ground include that the Respondent testified that he was police constable of the Nigeria Police Force attached to the 1st Appellant also that the Respondent did not place any evidence of his employment by the 1st Appellant before the Court.

In resolving the issue of whether the evidence established that the Respondent was an employee of the 1st Appellant, the lower court stated that paragraph 5(d) of the Amended Statement of Defence puts to rest the issue of whether the Respondent was an employee of the 1st Appellant, since what is admitted needs no further proof. See pages 71-72 of the Records.

In paragraphs 1, 6 and 7 of the Amended Statement of Defence, the Appellants averred that the Respondent was not an employee of the 1st Appellant and had no contract of employment with the 1st Appellant. It was further pleaded that the Respondent was a police constable in the Nigeria Police Force (SPY) Shell Police Command Warri. The DW1 called by the Appellants adduced evidence in this regard particularly to the effect that the Respondent was a supernumerary police officer. So on the pleadings the Appellants denied and also called evidence that the Respondent was not their employee. It is settled law that before a fact can be taken to have been admitted on the pleadings, as arrived at by the lower court relative to paragraph 5(d) of the Amended Statement of Defence, the pleadings must be considered as a whole and not each paragraph in isolation. See TITILOYE vs. OLUPO (1991) 7 NWLR (PT 205) 519 at 532 F – G & 543 D, UGOCHUKWU vs. CO-OPERATIVE & COMMERCE BANK LTD (1996) 6 NWLR (PT 456) 524 at 537 and UDO vs. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 22 WRN 53 at 88. In NIGERIA BOTTLING COMPANY PLC vs. OBOH (2000) 9 WRN 114 at 125, Muhammad JCA stated:
“…for a formal admission in a civil suit such as the one in hand to be acted upon positively by a court, the court is duty bound to consider the totality of the pleadings of the party said to have made the admission. The law does not allow, in such circumstance, the fragmentation of paragraphs. No paragraph shall be considered in isolation but must be read in conjunction with the other paragraphs to enable the issues joined on the pleadings to be properly ascertained.”

It seems to me that when paragraph 5(d) of the Amended Statement of Defence is read in conjunction with paragraphs 1, 6 and 7 of the Amended Statement of Defence, there can be no issue of there being an admission that the Respondent is an employee of the 1st Appellant as held by the lower court. The legal maxim is ei qui affirmat non ei qui negat incumbit probatio, id est the burden of proof lies on the one who alleges and not on him who denies. See OSAWARU vs. EZEIRUKA (1978) 6 – 7 SC 135 at 145 and UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189. So the question is whether on the evidence the Respondent who alleged to be an employee of the Appellant, established the same.

There is evidence that the Respondent is a police officer: see page 43 of the Records. There is also evidence that the Respondent is a supernumerary police officer (SPY) attached to the 1st Appellant. The Respondent testified under cross examination that SPY police is under the Delta Police Command under Commissioner of Police. See page 47 of the Records and the testimony of the DW1 at page 50 of the Records. In S.P.D.C. NIG LTD vs. DINO (2007) 2 NWLR (PT 1019) 438 or (2006) LPELR (7727) 1 at 39, this court, per Omage, JCA held that supernumerary police is a constabulary created by the government to perform supernumerary functions like protection of civil institutions like Shell or banks, etc and as such the supernumerary police officers are not in the service of those they are assigned to.
I have also read the decision of this court in JOHNSON vs. MOBIL PRODUCING UNLTD (2000) LPELR (8280) 1, relied upon by the Respondent where the Calabar Division of this court held per Orji-Abadua, JCA, that the fact that the appellants in the said case were described as SPY Police Mobil Producing Nigeria cannot make them Nigeria Policemen. It is pertinent to state that the decision in the JOHNSON case turned on the peculiar facts of that case as the court found that the appellants in that case were employed in the Security Unit of Mobil Producing Nigeria Unlimited and described as SPY Police Constables. This, the court found was not the procedure for appointment of supernumerary police officers under the Police Act, (See pages 43 – 48 of the LPELR). Therefore it seems to me that the position remains as decided in S.P.D.C vs. DINO (supra) that a supernumerary police officer properly appointed is not in the services of the person to whom he is assigned.

Be that as it may, the Respondent submitted in paragraph 5.12 of his brief of argument that the relationship between the 1st Appellant and the Respondent was the contract of employment contained in the Shell (SPY) Police Regulation, as it is clear from the said Regulation that the 1st Appellant intended to employ the Respondent as its security guard, notwithstanding the title given to him, Flowing from this submission, the question is where is the said Shell (SPY) Police Regulation which the Respondent builds his case upon as his contract of employment? It was not tendered in evidence, yet the Respondent sought and was granted a declaration that his discharge and dismissal from the services of the Appellants was illegal, null and void and of no effect whatsoever.

In OKOMU OIL PALM CO. LTD vs. ISERHIENRHIEN (2001) 6 NWLR (PT. 710) 660 or (2001) LPELR (2471) 1 at 8 -9, Uwaifo, JSC stated:
“It has been firmly established that when an employee complains that his employment has been wrongly terminated, he has the onus to place before the Court the terms of the contract of employment and
b) to prove in what manner the said terms were breached by the employer.
It is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts.”
See also KATTO vs. CBN (1999) 6 NWLR (PT 607) 390 at 405 and AMODU vs. AMODE (1990) 5 NWLR (PT 150) 356 at 370.

The Respondent in paragraph 17 of the Further Amended Statement of Defence pleaded his conditions of employment as being contained in the “Shell Petroleum Development document”. So the conditions of service was in a written form in the “Shell Petroleum Development document.” The Respondent gave the Appellants notice to produce the “Shell Petroleum Development document.” It was not produced. In holding that the Respondent established on a balance of probability that he was in the service and employment of the 1st Appellant, the lower court stated as follows on page 72 of the Records:
“Am in accord with A. E. Tudie, Esq., in his submission when he said it was only oral evidence left for the Plaintiff to establish that he worked with 1st Defendant, who refused to produce the document relating to the employment, also DW1 did not deny the existence of such document, neither did he give or state reasons for non-production of such documents…”

So the lower court relied on oral evidence to prove the contents of a written document. I think the lower court got it wrong. The law is settled that oral evidence will not be admitted to prove the term of any contract which has been reduced into writing when the document is in existence except the document itself. See DA ROCHA vs. HUSSAIN (1958) 3 FSC 89 at 92, SCOA NIG LTD vs. BOURDEK LTD (1990) 3 NWLR (PT 138) 380 at 389 and AGBAREH vs. MIMRA (2008) 2 NWLR (PT 1071) 378 or (2008) LPELR (235) 1 at 21 – 22. Consequently, the oral evidence of the Respondent could not have established any employment relationship he has with the 1st Appellant.

The lower court seems to have resorted to oral evidence to prove the contents of a document because the 1st Appellant failed to produce the document and its witness failed to give or state reasons for its non-production. Once again this cannot be the correct legal position. The law is that where a party given notice to produce a document fails to produce the same, then the other party is at liberty to tender admissible secondary evidence, that is, a copy of that document or proceed with committal proceedings. See ONYE vs. KEMA (1999) LPELR (6562) 1 at 10 and BUHARI vs. OBASANJO (2005) 7 SCNJ 1 at 52.
As stated by Ogunwumiju, JCA in UDEAGHA vs. OMEGARA (2010) LPELR (3856) 1 at 25:
“…where notice to produce is served on a party who fails to produce same, then secondary evidence may be given of the document where available. Where the documents are not available, committal proceedings against defaulters may issue.”

In the light of the foregoing, the Respondent who had the evidential burden of placing the terms of his purported contract of employment with the 1st Appellant and to prove how the said terms were breached by the 1st Appellant failed to do so by admissible evidence. Accordingly the Respondent cannot be entitled to any declaration that the discharge and dismissal from the services of the 1st Appellant is illegal, null and void and of no effect whatsoever.

On whether the lower court was justified on the available evidence to award the sum of N85 million as damages to the Respondent for unlawful, illegal and wrongful detention. This is the fulcrum of ground one of the Amended notice of Appeal. The Respondent contended that there is no ground of appeal challenging the findings of facts made by the lower court on pages 74, 75 and 76 of the Records with respect to their being credible, unchallenged and uncontroverted evidence in support of the claim for damages for unlawful detention. I do not accept this contention. Ground one of the Amended Notice of Appeal with its particulars reads:
“1. The learned Trial Judge erred in law when he awarded the sum of N85,000,000.00 (Eight-Five Million Naira) as damages for unlawful and wrongful detention of the Plaintiff by the Defendants.

PARTICULARS OF ERROR
i. There is no evidence that the 1st Appellant arrested, detained or ordered the arrest or detention of the Respondent at the anytime [sic] whatsoever.
ii. There is apple [sic] and overwhelming evidence even from the Respondent before the trial Court that offices were broken into whilst he was on duty which incident was reported to the Nigeria Police Force within the premises of 1st Appellant as required by the law.
iii. Having reported the incident to the Nigeria Police Force [Supernumerary Police] which included the Respondent there is no evidence that the 1st Appellant did any other thing in respect of the arrest or detention of the Respondent.
iv. The Respondent is a member of the Nigeria Police Force which body has the disciplinary right and power over him.”

It is clearly beyond doubt that the Appellants raised the issue of whether there was evidence on the record on the basis of which the 1st Appellant could be said to have unlawfully arrested and detained the Respondent in order for it to be mulcted in damages.

In finding the unlawful arrest and detention proved, the lower court stated at page 74 of the Records that the only evidence before the court of the arrest and detention of the Respondent was the evidence of the Respondent which was not contradicted by the Appellants sole witness. The evidence which will amount to prove a case is evidence which has probative value. The fact that the only available evidence is that adduced by the Respondent does not inexorably mean that the evidence has probative value and it does not necessarily mean that the case will succeed.

As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659:
“The argument that because the Plaintiffs evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a Plaintiff may be so weak and or so discredited under cross-examination that it is unnecessary for the Defendant to testify. It is also trite that the evidence given by the Plaintiff, even if unchallenged, may still be insufficient to sustain the claim made by the Plaintiff…”
See also OFORLETE vs. STATE (2000) LPELR (2270) 1 at 34.

The testimony of the Respondent on his arrest and detention is at pages 43 of the Records. He stated:
“I remember 27th August, 2000. I resumed night duty at Udugbo Estate. On 28/8/2000 I handed over to my reliver [sic] who took over from me. I went home, but I left my house keys at Udugbo Estate, so I went for it and was arrested, saying something happed [sic]. On that day 27th August, 2000 I was with a dog handler that is a police officer. I was taken to make statement at the charge room and was detained for three days 28/8/2000 to 30/8/2000. I told the crime officer that nothing happened on beat. That I handed over to my reliver [sic] well. My house was search, [sic] nothing was recovered. Mr. Okoye reported that something happened in the office, who made statement that it was only attempt to broke [sic] into his office. On 30/8/2000, I was release [sic] and discharged from service.”

Under cross-examination the Respondent testified as follows:
“I was manning the front door of flat 28 Idugbo Estate Shell when the incident occurred [sic]. The dog handler was also in the front with me. I do not know who was manning the back door. The keys to the front door were with me but the door was not tempered [sic] with nor were the iner [sic] doors tempered [sic]. They said it was Mr. Brown and Mr. Nkoyos office that were tempered [sic] with. I was on night duty on that day. I have never expirence [sic] that incident [sic] before now.” (See page 49 of the Records)

The Appellants sole witness equally testified on matters related to the arrest of the Respondent. He stated as follows:
“I know Odigbwe a staff of S.P.D.C. in the security department. Mr. Ikoyo was a staff security also. On 28/8/2000 the two of them complained that their office was tempered [sic] with, base on which the matter was reported at our office and detective officer assigned to investigate.
The dog handler left the beat at 5 a.m. The Plaintiff left at 7 a.m. The Plaintiff made statement to police, also the two complainers.” (See pages 50-51 of the Records)

It is on the basis of this evidence that the lower court held that the Respondent proved the claim for unlawful arrest and detention.
Though trite law as held by the lower court on pages 74 -75 of the Records that the burden of proving that an arrest and detention is legal is on the party who effected the arrest, it seems to me that this a burden that will only arise where the person alleging unlawful arrest and detention has adduced prima facie evidence of an unlawful arrest and detention. In GUSAU vs. UMEZURIKE (2012) 28 WRN 111 at 140 – 141, this court held that a detention can only be adjudged wrongful or unlawful in the first place if there is no legal foundation to base the arrest and/or detention.

It is trite law that if a person orders a policeman to arrest another person, it is an imprisonment by the person ordering the arrest as well as by the policeman. They are joint tortfeasors and their conduct can ground an action in unlawful arrest and detention. However, merely making a report to a policeman who on his own responsibility takes the person into custody is no arrest or detention by the person who made the report. There is no doubt that someone who merely gives information without more, which information leads to the arrest of a suspect by the Police acting within their mandate and responsibility, cannot be liable in an action for unlawful arrest or detention. See AFRIBANK vs. ONYIMA (2004) 2 NWLR (PT 858) 654.

The evidence on record discloses that there was an incident in the premises where the Respondent worked on night shift. Two members of staff of the 1st Appellant reported that there was an attempt to break into their office. The Respondent was therefore arrested. The position of the law is that it is not enough for a plaintiff in a claim for unlawful arrest and detention or false imprisonment to plead and provide evidence that the defendant merely made a report against him, he must also plead and establish that there was no reasonable and probable cause for making the report. The Plaintiff has the legal burden of showing that the report made by the defendant is false, frivolous and without legal foundation. See BAYOL vs. AHEMBA (1999) 7 SC (PT 1) 92 and IYALEKHUE vs. OMOREGBE (1991) 3 NWLR (PT 177) 941. There is nothing in the evidence on record on which it can be held that the report made by the staff of the 1st Appellant was wilfully false, frivolous and without legal foundation. What is more, the Plaintiff has to establish that the person who made the report was actively instrumental in procuring his arrest and detention and that the police did not act on their own volition. See NWADINOBI vs. BOTU (2000) 13 WRN 32 at 40 and OKONKWO vs. OGBOGU (1996) 3 NWLR (PT 449) 420.There is nothing in the evidence establishing that the staff of the 1st Appellant did any more than report to the police. Whatever happened consequent upon the report was the police acting on their own volition. The lower court copiously dwelt on whether the arrest and detention had been justified by the Appellants without first having ascertained that the evidence established an unlawful arrest and detention at the instance of the 1st Appellant. The evidence adduced definitely does not preponderate in favour of the basic proportion which the Respondent sought to establish, id est an unlawful arrest and detention at the instance of the 1st Appellant. See OBASI BROTHERS MERCHANT CO. LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26.

The learned counsel for the Respondent submitted on page 21 of the Respondent’s Amended Brief that the 1st Appellant is vicariously liable for the tortuous acts of the 2nd Appellant. I am unable to accept this contention. The evidence before the court is that the 2nd Appellant is of the supernumerary police. The case of SPDC vs. DINO (supra) has established it that a supernumerary police officer is not an employee of the organization where he is assigned to. In the words of Omage, JCA in SPDC vs. DINO (supra) at 39:
“In the instant case, the said police is not in the service of Shell P.D.C and in the control of the Division Command of Police. Consequently Shell PDC is not vicariously liable for the supernumerary police.”
I kowtow.

An Appellate Court is duty bound to interfere with and reverse the decision of a trial court arrived upon a wrong premise or which is otherwise perverse. See ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410. The decision of the lower court is neither founded on sound legal principle nor supported by the facts on record. The lower court got it wrong on the existence of an employer/employee relationship between the 1st Appellant and the Respondent. The lower court equally got it wrong on the liability for unlawful arrest and detention. The decision of the lower court is clearly perverse and cannot be allowed to stand. Accordingly, I will resolve issue number two against the Respondent.

CONCLUSION
ln the course of this judgment, I considered the issue of jurisdiction raised by the Appellants and upheld their contention that the Appellants on record were not juristic persons, a factor which divested the lower court of jurisdiction. Being an intermediate appellate court, I have ex abundantia cautela, further considered the merits of the appeal and arrived at the inevitable conclusion that the issues for determination are to be resolved in favour of the Appellants.

In a summation and for purposes of clarity, this appeal is immensely meritorious and it is allowed. The judgment of the lower court delivered on 11th day of November 2005 is hereby set aside. The Respondent’s action is hereby dismissed. The Appellants are entitled to the costs of this appeal which I assess and fix at N50, 000.00.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I am in complete agreement with his reasoning and conclusion that the appeal has merit and should be allowed. I will add a few words.

I agree that the preliminary objection filed by the Respondent on the basis that grounds 3 and 4 of the notice of appeal are incompetent being not related to the decision appealed against is misconceived.

Generally a Court of law has no business with a ground of appeal which is not predicated on the judgment appealed against since biologically speaking, the judgment gives birth to the grounds of appeal which in turn gives birth to the issues for determination by the appellate court. Thus, where the ground of appeal is not founded on the judgment, no issue can be distilled from the said grounds and as such, any issue couched from the non-existent and thus invalid ground of appeal goes to no issue and the appellate court will not bother considering it. See the dicta of Niki Tobi JSC in Bhojsons Plc v. Geoffre K. Daniel Kalio (2006) 5 NWLR Pt. 973 Pg. 330 where His Lordship said:
“Grounds of appeal are the complaints of the appellant on the judgment appealed against. They are the twin pillars on which the entire appeal stands and an appellate Court cannot go outside them in search of greener pastures for any of the parties. Where an issue before a trial court is not raised by a ground of appeal, the issue cannot be taken by the appellate Court because it is not before that Court. Issues coming for adjudication before an appellate Court are erected by the ground or grounds of appeal. Courts of law, like umpires in a game, cannot go outside the rules of the court and do things in the way they like. Courts are bound by the processes before them. They have no business to dabble with issues not placed before them.”
See also the dicta of Walter Samuel Onoghen JSC in Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR Pt. 1056 Pg. 118; (2007) 7 SC 168. See also Madueke v. Madueke (2000) 5 NWLR Pt. 655 Pg. 130; ASTB v. King Davidson (2000) 12 NWLR Pt. 681 Pg. 298.

The above is all very well, however when an issue of jurisdiction is raised as has been raised by the appellant in grounds 3 and 4 of the notice of appeal, that general rule ceases to apply. The grounds are stated below as follows:
“3. The learned trial judge erred in law in entertaining this suit of the Plaintiff as it concerns the 2nd Defendant.
4. The learned honourable Court erred in law and on the facts in failing to hold that in the circumstance of this case and the parties therein the High Court of Delta State has no jurisdiction to entertain and enter judgment in the Respondent’s claim.”

The current conventional wisdom is that since the issue of jurisdiction can be raised at any time even for the first time at the Supreme Court, there is no need for special leave to raise the issue for the first time on appeal. Only fresh issues that have nothing to do with a challenge of the jurisdiction of the trial court need leave before it can be raised and argued. In the circumstances that limb of the preliminary objection has no basis and it is hereby dismissed.

I wish to also add on the issue of the juristic personality of the Appellants that even though the statement of claim supercedes the writ of summons, a writ that was served in an inherently defective form is liable to be struck out. The statement of claim can only enlarge the scope and content of the writ, it cannot replace the writ as it is filed and served.

There was a misnomer in the writ in this case as it relates to the 1st Appellant. The misnomer could only have been corrected with leave of court which in this case was neither sought nor obtained.
It goes without saying that the ludicrous argument that the 2nd Appellant as stated on the writ is a juristic person is completely misconceived. My learned brother has copiously put paid to any argument in that behalf in the lead judgment.

The trial court lacked the requisite jurisdiction over the appellants who were not juristic person recognised in law to sue and be sued when the Respondent sued them. The suit at the High Court is therefore liable to be struck out. It is hereby struck out for want of competence.

My learned brother took the pains to consider the merits of the appeal and found the complaints raised by the appellant well founded. I agree with His Lordship. I abide by all the orders in the lead judgment. Appeal Allowed.

PHILOMENA MBUA EKPE, J.C.A.: I have had the advantage of reading in draft the Judgment just delivered by my learned brother U. A. OGAKWU JCA. His Lordship has exhaustively and painstakingly dealt with all the issues canvassed in the lead judgment. I am in total agreement with the reasoning and conclusions therein and I have nothing more useful to add in the face of all the issues having been resolved in favour of the appellants.
I too consider this appeal as meritorious and is hereby also allowed by me.

Accordingly, the judgment of the lower court delivered on the 11th day of November, 2005 is hereby set aside and the respondent’s action is consequently dismissed.
I abide by his Lordship’s order as to costs.

Appearances

Onome Egbon, Esq. with I. D. Tuggen, EsqFor Appellant

AND

Efeosa Imade, Esq. with O. B. Fadipe, Esq. and U. Osara, Esq.For Respondent