STANBIC IBTC BANK PLC v. LONGTERM GLOBAL CAPITAL LIMITED & ANOR (2013)

STANBIC IBTC BANK PLC v. LONGTERM GLOBAL CAPITAL LIMITED & ANOR

(2013)LCN/6190(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of May, 2013

CA/L/194/11

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

STANBIC IBTC BANK PLC Appellant(s)

AND

1. LONGTERM GLOBAL CAPITAL LTD
2. MR. PATRICK AKINKUOTU Respondent(s)

RATIO

WHETHER OR NOT EVERY PRONOUNCEMENT OF A COURT SHOULD BE THE BASIS OF AN APPEAL

It is settled law, that it’s not every pronouncement of a court that should be the basis of an appeal, and an opinion expressed by a court which did not form part of the reasons for the decision thereof cannot be the basis of an appeal. See DEDUWA VS. OKORODUDU (1976) 9 -10 SC 208 @ 216; OGUNYADE VS. OSHUNKEYE (2007) 15 NWLR (Pt. 937) 563 @ 590 E -F. PER SAULWA, J.C.A.

WHETHER OR NOT THE COURT AND PARTIES ARE BOUND BY THE RECORD OF APPEAL

Indeed, it’s a well settled fundamental principle, that the court is bound by the record thereof, as much as the parties themselves. This trite fundamental principle inarguably has been reiterated often times in a plethora of authorities, including-GOVT OF GONGOLA STATE VS. TUKUR (1989) 4 NWLR (Pt.117) 592; COMMISSIONER FOR WORKS BENUE STATE VS. DEVCON LTD. (1988) 3 NWLR (Pt. 83) 407, cited and relied upon by the Appellant’s learned senior counsel. PER SAULWA, J.C.A.

COMMENCEMENT OF AN APPEAL PROCESS

It’s trite, that all initiated appeal shall be (by way of rehearing) by filing and notice (of appeal) in the court below, setting forth the grounds of appeal, the exact nature of the reliefs sought and the names and address of all parties directly affected by the appeal. See Order 6 Rule 2 of the Court of Appeal Rules, 2011.
Undoubtedly, a valid notice of appeal invariably animates and sustains an appeal, thus a condition precedent to the Court of Appeal’s exercise of the jurisdiction thereof. Both the Supreme Court and this court have had a cause to reiterate this trite fundamental principle in a plethora of authorities, including: AMADI VS. OKOLI (1977) 7 SC 57; OKOTIE VS. OLUGHOR (1995) 5 SCNJ 217; BRAWAL SHIPPING (NIG.) LTD VS. EXTRACTION & COMMODITY SERVICE LTD (2001) 14 NWLR (Pt. 732) 172; OLANREWAJU VS. BON LTD (1994) 8 NWLR (Pt. 364) 622; OLOWOKERE VS. AFRICAN NEWSPAPER (1993) 5 NWLR (Pt. 295) 583; ERUSI VS IDIKA (1987) 4 NWLR (Pt.66) 503; JOSIAH CORNELIUS LTD VS. EZENWA (1996) 37 LRCN 618; TUKUR VS. GOVT. OF GONGOLA STATE (1988) 1 NWLR (Pt. 68) 39.
All the foregoing authorities are instructively to the effect, that valid (competent) notice of appeal is crucial to the jurisdiction of the court. For an appeal to be properly commenced, a competent notice of appeal must be filed in the trial court. Thus, where an appeal is not properly initiated, as a result of filing an incompetent notice of appeal, the court is devoid of the competence to entertain and determine same. It must decline to adjudicate thereupon. See IKEAGWU VS. NWANPKA (1966) 1 SCNLR 238. PER SAULWA, J.C.A.

WHETHER OR NOT WHERE A PARTY SEEKS TO MAKE USE OF ADDITIONAL GROUNDS OF APPEAL, HE MUST SEEK AND OBTAIN THE LEAVE OF COURT

The law is well settled, that where a party seeks to make use of additional grounds of appeal, he must seek and obtain the leave of Court. Thus, where the party fails to seek and obtain the necessary leave of court, as in the instant case, the additional grounds purportedly filed by him ought to be deemed incompetent, and liable to be discountenanced. See FAGUNWA VS. ADIBI (2004) LPELR -1229 (SC) P.12 paragraphs E -F per Niki Tobi, JSC, wherein His Lordship reiterated the trite elementary principle, thus:
The law is elementary that where a party seeks to make use of additional grounds, he must seek leave of Court… where he fails to do so, the additional grounds are incompetent and the court will so treat them. See also PUNCH NIGERIA LTD. VS. JUMSUM NIGERIA LTD (2010) LPELR -4887 (CA) 10 E. PER SAULWA, J.C.A.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment): The instant appeal is a fall-out of the judgment of the Federal High Court, Lagos Judicial Division, delivered on December 6, 2010 in suit No. FHC/L/1491/2009. By the said decision, the lower court, coram C.E. Archibong, J; granted some of the reliefs sought by the Respondents in the writs of summons and the statement of claim thereof, dated December 23, 2009. Being dissatisfied with the decision in question, the Appellant filed the notice of appeal thereof, dated December 7, 2010 which is predicated upon a total of seven grounds. However, on April 1, 2011, the Appellant filed an amended notice of appeal, which was deemed properly filed on July 5, 2011, pursuant to the leave granted thereto by this Court on that date.

BACKGROUND FACTS:
The fact and circumstances surrounding the appeal are not far-fetched. As gleanable from the records of appeal, the 1st Respondent is a limited liability company with the registered head office thereof situated at No. 5 Ayodele Street, Off Iwaya Road, Onike Yaba, Lagos. The 1st Respondent was hitherto known as LONGTERM VENTURES LIMITED. However, it later changed its name to LONGTERM GLOBAL CAPITAL LIMITED. The 2nd Respondent is the chairman, and indeed Chief Executive Officer (CEO), of the 1st Respondent.
The Appellant, on the other hand, is a commercial bank licensed under the Nigerian Laws to carry out banking business, and has its registered office at IBTC Place, Walter Island, Lagos. It equally has several other branches in the country, including the ones at Plot 10712, Idejo Street, Victoria Island, Lagos and at 70, Adetokunbo Ademola Street, Victoria Island, Lagos. The Appellant was hitherto known as IBTC Chartered (Bank) Plc, but later changed the name thereof to STANBIC IBTC BANK PLC.
On April 11, 2007, the Appellant granted an overdraft facility of N600 Million to the 1st Respondent for a tenor of 365 days and an option of rollover amongst other terms. Subsequently, on May 11, 2007 and July 17, 2007, the Appellant further granted two additional overdraft facilities to the 2nd Respondent in the sums of N400 Million and N250 Million respectively, for tenors of 365 days, and with options of rollover, amongst other terms. At the expiration of the respective overdraft facilities granted to the Respondents, the Appellant granted an extension to them to liquidate the facilities. Subsequently, the 2nd Respondent applied that the facility granted to him be merged with that of the 1st Respondent.
However, the case of the Respondents is that they have liquidated the overdraft facilities granted thereto by the Appellant. Thus, in consequence of the Respondents’ refusal to release the Respondents’ shares pledged for the over draft facilities granted thereto, the Respondents deemed it expedient to institute the said suit at the lower court. By the indorsement to the writ of summons and paragraph 50 (1 -14) of the statement of claim (contained at pages 1 -17 of volume one of the Record), the Respondents sought against the Appellant, the following reliefs:
50. WHEREOF the Plaintiffs jointly and severally claim against the Defendant as follows:
(1) A declaration that as at 8/7/2009, the Defendant was indebted to the Plaintiffs in the sum of N170,304,096.79, being the shortfall arising from the unconscionable and negligent sale of 28,745,400 units of Guaranty Trust Bank Plc shares owned by the Plaintiffs.
(2) A declaration that the Defendant is indebted to the Plaintiffs in the sum of N35,725,180.87, being the outstanding excess of interest charges debited to the Plaintiffs’ accounts by the Defendant.
(3) A declaration that the Defendant is also indebted to the 1st Plaintiff in the sum of N245,729.49 being the cash deposit which was not credited to the 1st Plaintiff’s account on 2/11/2008, with accrued interest at the rate of 16% per annum from 21/10/2009 when an official demand letter was written to the Defendant in that regard till date.
(4) A declaration that the Plaintiffs are entitled to offset their indebtedness to the Defendant with all the sums referred to in reliefs 1, 2 and 3 above, which were due to the Plaintiffs at the relevant time.
(5) A declaration that based on all the sums due to the Plaintiffs as enumerated in paragraph 37 of the statement of claim, the Plaintiffs have fully and finally discharged all their obligation to the Defendant in respect of the overdraft facilities.
(6) A declaration that the Defendant is not entitled to charge interest on the overdraft facilities granted to the Plaintiffs with effect from 31/10/2009.
(7) An order of perpetual injunction restraining the Defendant, either by itself or through its servants, agents, privies, subsidiaries or successors-in-title, from selling, disposing, charging or encumbering in anyway whatsoever, the shares listed in paragraph (38) above.
(8) An order of perpetual injunction restraining the Defendant, either by its agents, servants, privies, subsidiaries or successors -in -title, from exercising any act of ownership in respect of the shares listed in paragraph (38) above.
(9) A declaration that the 2nd Plaintiff has discharged all obligation under the contract of personal guarantee in relation to the overdraft facilities granted to the 1st Plaintiff.
(10) An order directing the Defendant to release the pledged shares and every other document relating to the shares listed in paragraph (38) above, forthwith to the Plaintiff.
(11) The sum of N5 Billion as general damages against the Defendant for breach of contract.
(12) A further sum of N2 Billion as aggravated damages against the Defendant for loss of goodwill and business reputation of the Plaintiffs.

IN THE ALTERNATIVE
13. An order of this Honourable Court directing the parties herein to carry out proper and independent reconciliation of the Plaintiffs’ accounts prior to and after the merger of the said accounts to determine the actual indebtedness of the Plaintiffs (if any).
14. An order directing the Defendant to release all the shares belonging to the 1st Plaintiff as listed in paragraph 38 above, less the number of units equivalent to the sum that may be adjudged due to the Defendant after the reconciliation referred to in relief 13 above.
The vexed judgment of the lower court spans a total of 44 pages. It is contained at pages 820 -862 of volume 2 of the records of appeal. It is indeed needless to state, that I have painstakingly perused the entire records vis -a -vis the vexed judgment. The judgment in question is to the conclusive effect, thus:
I do not have in evidence any explanation or apology for either the excess charges levied in the Plaintiff account or the missing deport that was credited after Eleven millions.
I give judgment in the following terms:
Any outstanding due to the Defendant is fully offset by “the loss suffered by the Plaintiffs from the manner the Defendant handled the sale of GTBank Plc shares, also by the excess Banks charges and by the lost and found” deposit N212,700.00 plus interest accrued.
The Defendant should all stock and certificates related to any shares held in lien in respect of overdraft facilities granted the Plaintiff which facilities are fully liquidated. The Defendant is not to sell, dispose, charged or encumber the aforementioned shares in any way.
The 2nd Plaintiff is discharged of any obligations under the contract of personal guarantee for the overdraft facilities the subject matter of this suit.
I award the Plaintiffs N2.5 Billion in general damages against the Defendant for breach of contract specifically ignoring a written mandate and making excessive charges on their account(s) and giving inadequate consideration to customer interest; and for loss of business opportunity to the Plaintiff by unlawfully embargoing their shares over and above any requirement for security over the Defendant could legitimately claim.
The counter claim has no merit and is hereby dismissed.
This is the judgment of the court.
HON. JUSTICE C. E. ARCHIBONG
JUDGE
6/12/10
Upon entering the appeal, the parties proceeded to file their respective briefs of argument.
The Appellant’s brief of argument was initially filed on 20/4/11 by O. Ayanlaja, Esq. SAN, but deemed properly filed on 08/10/12. The Appellant equally filed a reply brief on 23/3/12. The Respondents’ brief, on the other hand, was filed on 21/12/11 by Chief F. O. Fagbohungbe, SAN, but deemed properly filed on 19/3/12.
At pages 3 & 4 of the said brief thereof, the Appellant’s learned senior counsel, O. Ayanlaja, Esq. SAN, has formulated a total of six issues for determination, viz:
1. Whether the Federal High Court has jurisdiction to hold, as done in this case, that the Appellant was liable for the sum of N170 Million being the loss allegedly suffered by the Respondents as a result of the sale of the GTB Plc shares owned by the 1st Respondent, which sale was carried out by Messrs STANBIC IBTC Asset Management Limited. (Ground 4)
2. Whether the learned trial Judge was right in law in holding that the Appellant must bear the loss of N170 Million which allegedly resulted from the sale of the GTB Plc shares of the 1st Respondent when the said shares were sold strictly in accordance with the instruction of the 1st Respondent as contained in the E-mail issued by the 2nd Respondent on May 4, 2009. (Grounds 2, 3 and 8)
3. Whether the learned trial Judge was right in law in awarding N2.5 Billion (Two Billion, Five Hundred Million Naira) as general damages against the Appellant for breach of contract and loss of business opportunity when there was no pleading and legally admissible evidence in support of the award. (Grounds 7 and 9)
4. Whether the learned trial Judge was right in law in holding that the accounts of the 1st and 2nd Respondents had been merged at the Credit review meeting of 12th February, 2009 and that outstanding debt due to the Appellant was fully set off by the loss allegedly suffered by the Respondents in the sale of the GTB Plc shares without making a specific finding as to the outstanding sum due from the Respondents to the Appellant and when the sale of the shares was not carried out by the Appellant. (Grounds 1 and 5)
5. Whether the trial court was right in ordering the Appellant to release all stock and certificates related to the shares held on lien in respect of the overdraft facilities granted to the Respondents when the liability of the 2nd Respondent as the guarantor of the debt of the 1st Respondent still subsists. (Ground 6)
6. Whether the learned trial judge ought not to have granted the Appellant’s Counter claim having regard to the state of the pleadings and preponderance of evidence adduced by the parties. (Ground 10).
On the other hand, as alluded to above, the Respondent’s brief was filed on 21/12/11, but deemed properly filed on 19/3/12. The said brief was signed by the Respondent’s senior counsel, Chief F. O. Fagbohungbe, SAN. of F. O. Fagbohungbe & Co. It spans a total of 29 pages. It is rather evident, that pages 3 -7 of the said brief exclusively relate to preliminary objection. It is divided into five different segments. The first segment of the objection relates to the Appellant’s brief. The main complaint under this segment is that the Appellant’s brief (dated 19/9/11) was filed on 20/9/11 out of time. Reference was made to the court order granted on 04/9/11 to the following effect:
“Time is enlarged for the Appellant/Applicant to file the Appellant’s brief.
Clean copy of Exhibit “AA1 must be filed within 7 days”.
It was submitted that the Appellant’s brief in question is radically different from Exhibit AA1. Therefore, the court is urged to strike out the said Appellant’s brief.
The second segment of the objection relates to Grounds 3, 4, 5, 6, 7 & 10, which were alleged to have been filed out of time. Conceded, that the initial Notice of Appeal (dated 07/12/10) was filed on 13/12/10, within the statutory period stipulated under section 24 (2) (a) of the Court of Appeal Act. i.e. within 3 months, as of right. However, Grounds 3, 4, 5, 6, 7 & 10 of the Amended Notice of Appeal were not part of the grounds in the Notice of Appeal. They are, therefore, improperly incorporated in the Amended Notice of Appeal. They are deemed filed on 05/7/11 without leave of court. See EHINLANWO VS. OKE (2008) ALL FWLR (Pt. 442) 1007 per Onnoghen, JSC @ 1031 H -1032D; FAGUNWA VS. ADIBI (2004) 17 NWLR (Pt. 903) 544 per (NIKI) Tobi, JSC @ 562 D -F; JUMSUM NIGERIA LIMITED VS. PUNCH (NIG) LTD (2011) 12 NWLR (1260) 162 @ 177 F-H -178A -B.
The court has been urged to strike out the said Grounds 3, 4, 5, 6, 7 & 10 of the Amended Notice of Appeal and the issues distilled therefrom.
The third segment of the objection relates to Grounds 4, 5 & 7 that were alleged to have raised fresh issues, which were not raised at the lower court. Reference was made to the 2nd, 3rd, 4th & 5th particulars of error enumerated in ground 4, to the effect that it’s not in negligence as the alleged damages suffered by Respondents. That, a perusal of the Record would show that the Appellant did not deny at the trial that shares were sold by it or at its instance. The Appellant cannot hide under the guise of an appeal to set up a claim which is radically different from what it pleaded and led evidence upon at the lower court. See GABRIEL VS. STATE (1989) 5 NWLR (Pt. 122) 457, per Belgory, JSC (as he then was) @ 462 D -E; OGUNBIYI VS. ISHOLA (1996) 6 NWLR (Pt. 452) 12, per Onu, JSC @ 22 H -23 A.
Urged, that the said Ground 4 be struck out, for being grossly incompetent.
The fourth segment of the objection relates to Ground 8, which is allegedly an obiter dictum. It was submitted that the vexed part of the judgment at page 859 of the Record, would show clearly, that the reference to the 2nd Respondent’s state of mind was merely an obiter dictum. The reason, as postulated by learned Silk being that –
“neither the state of mind of the 2nd Respondent nor the state of health of his wife were part of the issues before the lower court…”
It is settled law, that it’s not every pronouncement of a court that should be the basis of an appeal, and an opinion expressed by a court which did not form part of the reasons for the decision thereof cannot be the basis of an appeal. See DEDUWA VS. OKORODUDU (1976) 9 -10 SC 208 @ 216; OGUNYADE VS. OSHUNKEYE (2007) 15 NWLR (Pt. 937) 563 @ 590 E -F.
The fifth and last segment of the objection relates to Grounds 7 & 9 alleged to have been repetitive, thereby constituting an abuse of court process. Relying on MARK VS. ABUBAKAR (2009) 2 NWLR (Pt. 1124) @ 134D; FABUNMI VS. AJAYI (2008) ALL FWLR (Pt. 444) 1458 per Augie, JCA @ 1470D.
Accordingly, the court has been urged to strike out the said grounds 7 & 9, of the Appellants’ grounds of appeal as well as issue 3 of the Appellant.

APPELLANT’S RESPONSE TO THE RESPONDENT’S PRELIMINARY OBJECTION:
In reaction to the foregoing preliminary objection of the Respondents, the Appellant filed a reply brief on 23/3/12. It spans a total of 13 pages.
Regarding the objection to the Appellant’s brief in question, the learned Silk submitted, inter alia, that the prayer contained in the Appellant’s motion on notice dated 13/9/11, for extension of time to file brief, was not tied to a particular brief of argument. The reason being that there was no prayer for deeming order. The court and parties are bound by the prayers contained in the motion paper: GOVT OF GONGOLA STATE VS. TUKUR (1989) 4 NWLR (Pt. 117) 592; COMMISSIONER FOR WORKS BENUE STATE VS. DEVCON LTD (1988) 3 NWLR (Pt. 83) 407; NIGERIA CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (Pt. 12) 306 @ 313 -314 per Nnameka -Agu, JCA (as he then was).
It was contended, that Exhibit “AA1” referred to in court order of 14/9/11 was merely to emphasise for the need for counsel to file the brief within 7 days. That, Respondents has not shown that they were raised as to the case put forward in the Appellant’s brief. They have indeed responded thereto by filing the brief thereof. The court is urged to disregard the Respondent’s invitation to strike out the Appellant’s brief.
Regarding Grounds 3, 4, 5, 6, 7 & 10, it’s submitted, that the objection is misconceived in law, and should be rejected. Reference was made to the motion on notice dated 01/4/11 vis-a-vis the prayers set out therein. Page 89 of BLACK’S LAW DICTIONARY 8th edition was equally referred to, for the definition of “amendment” which includes “addition” and “substitution.” Various authorities were also referred to viz: FBN PLC VS. TSOUWA (2004) 5 NWLR (Pt. 865) 271; ROTIMI VS MACGREGOR (1974) 11 SC 133 @ 152; ERISI VS. IDIKA (1987) 4 NWLR (Pt. 66) 503; et al, regarding the effect of amendment vis -a -vis deeming order.
The cases of EHINGAWO VS. OKES (supra) and FAGUNWA VS. ADIBI (supra) are allegedly not applicable to the instant case. In those cases additional grounds were merely filed without leave. See FAWEHINMI VS. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558.
The court was urged to hold that the said Grounds 3, 4, 5, 6, 7, 9 & 10 are properly before the court.
As regards Grounds 4, 5 & 7, it’s submitted that the Respondents’ submission is not only misleading but also misconceived in law. All the grounds in question arise from the proceedings vis -a -vis the judgment of the trial court. See ERIRO VS. OBI (1993) 9 NWLR (Pt. 315) 60. The court is urged to so hold.
On Ground No. 4, of the Amended Notice of Appeal, it’s submitted that the relief sought is founded on tort of negligence. It directly challenges the jurisdiction of the lower court to award relief founded on tort of negligence. Thus, it directly arose from the judgment of the lower court. The issue of jurisdiction is fundamental, it can be raised at any stage of the proceedings, in the High Court or Appeal Courts, by the parties, or suo motu by the court. See EZOMO VS. OYAKHIRE (1985) 2 SC 260 @ 282; BRONIK MOTORS VS. WEMA BANK LTD (Pt. 83) 1 SC NLR 296; OLOBA VS. AKEREJA (1988) 3 NWLR (Pt. 84) 508 @ 520.
As regards Ground 8, it’s submitted that it’s a complaint against a ratio decidendi of the lower court. That, the question as to the instruction given by the 2nd Respondent for the sale of the said shares was directly in issue in the lower court. It cannot be said, by any stretch of imagination, that the lower court’s conclusion that the prejudicial finding of the lower court, not borne out of evidence on record but upon which the Appellant was held negligent, is an orbiter dictum. All cases cited by the Respondents on that point are not helpful to their cause. The court is urged to so hold.
The Respondents’ submission on Grounds 7 & 9, to the effect that they are repetitive, is said to be misconceived in law. The court is urged to so hold, and accordingly reject the Respondents’ objection.

THE PRELIMINARY OBJECTION:
On the question of whether the Appellant’s brief of argument dated 19/9/11 is competent, it’s not in doubt, at all, that the Appellant’s motion of 13/9/11 has attached thereto Exhibit “AA1”. And by virtue of paragraph 9 of the affidavit supporting that motion, it’s averred thus –
“9. That the Appellant is still desirous of pursuing the appeal herein and the proposed brief is now produced and shown to me marked Exhibit “AA1.”
Undoubtedly, that application was duly granted by this court on the basis of the Appellant’s sole prayer to the effect thus:
Time is enlarged for the appellant/applicant to file the appellant’s brief. A clean copy of Exhibit “AA1″ must be filed within 7 days.”
Now, the pertinent question that ought to be posed at this point in time is whether the Appellant has duly complied with the well set out, and rather unequivocal, order of the court, copiously alluded to above? I believe the answer to that pertinent and most crucial question is not at all far to seek.
I have had a cause to critically, albeit dispassionately, peruse the entire contents of exhibit “AA1” attached to the motion of 19/9/11 upon which the order of this court was granted on 14/9/11 vis -a -vis the vexed brief filed by the Appellant, on 20/9/11. Comparatively, it’s rather obvious, that while the said Exhibit “AA1” spans a total of 13 pages, the brief filed on 20/9/11 by the Appellants, but deemed properly filed on 08/10/12, spans a total of 25, pages.
Secondly, at page 3 of the exhibit “AA1”, only 4 issues have been set out for determination. Contrariwise, at pages 3 & 4 of the vexed Appellant’s brief a total of six issues have been set out for determination. There is no doubt, that issues 4 & 5 of the vexed Appellant’s brief were not contained in the original brief (Exhibit “AA1”) he was granted leave by this court to file, vide its order of 14/9/11 in question.
In the course of the submission thereof, at page 1 paragraph 2.02 of the brief, the Appellant’s learned senior counsel has contended that –
2.03… the prayer which is contained in the Appellant’s motion on notice dated 13th September 2011 was for the extension of time within which the Appellant may file its Brief of Argument. The said prayer was not tied to a particular Brief of Argument as there was no prayer for a deeming order sequently, the court ordered as prayed and directed that the Appellant do (sic) its Brief of Argument within seven days.
I must say, with respect, nothing could be farther from the golden truth than the above submission.
Indeed, it’s a well settled fundamental principle, that the court is bound by the record thereof, as much as the parties themselves. This trite fundamental principle inarguably has been reiterated often times in a plethora of authorities, including-GOVT OF GONGOLA STATE VS. TUKUR (1989) 4 NWLR (Pt.117) 592; COMMISSIONER FOR WORKS BENUE STATE VS. DEVCON LTD. (1988) 3 NWLR (Pt. 83) 407, cited and relied upon by the Appellant’s learned senior counsel.
In the instant case, the Appellant’s failure to file an exactly replicated copy of exhibit “AA1”, as unequivocally ordered by this court on 14/9/11, has rendered the vexed brief thereof grossly incompetent, and liable to be struck out by this court.
In the circumstance, I uphold the submission of the Respondent’s learned counsel to the effect, inter alia, that –
Since the order of this Honourable Court was attached specifically to exhibit “AA1”, the Appellant cannot vary the order by filing a Brief of Argument which is at variance with exhibit “AA1”.
In the circumstance, we urge your Lordships to strike out the Appellant’s Brief of Argument dated 19th September, 2011 for being incompetent.
I uphold the above submission of the learned Silk, and accordingly hold that the Appellant’s purported brief, filed on 20/9/11, is incompetent, thus deserving of being struck out by this court. And I so hold.
GROUNDS 3, 4, 5, 6, 7 & 10 OF THE AMENDED NOTICE OF APPEAL ALLEGEDLY FILED OUT OF TIME:

For an appeal to be properly commenced, a competent notice of appeal must be filed in the trial court. Thus, where an appeal is not properly initiated, as a result of filing an incompetent notice of appeal, the court is devoid of the competence to entertain and determine same. It must decline to adjudicate thereupon. See IKEAGWU VS. NWANPKA (1966) 1 SCNLR 238.
I have amply considered the submissions of the respective learned senior counsel regarding the fundamental defects, allegedly inherent in grounds 3, 4, 5, 6, 7 & 10 of the amended notice of appeal. I entirely agree with the submission of Chief Fagbohungbe, SAN, to the effect that the said Grounds 3, 4, 5, 6, 7 & 10 of the purported amended notice of appeal were filed out of the statutory time limit, provided under section 24 (2) (a) of the court of Appeal Act, 2004, thus:
“24 – Time for Appealing
(2) the periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
A critical, albeit dispassionate, evaluation of the original notice of appeal reveals that the said Grounds 3, 4, 5, 6, 7 & 10, improperly incorporated in the Amended Notice of Appeal, were not part of the grounds contained in the original notice of appeal.
Most unfortunately, the Appellant had not deemed it expedient to seek and obtain the leave of the court to file any additional grounds of appeal out of the three months statutory time limit provided in section 24 (2) (a) of the Court of Appeal Act (supra), from December 6, 2010, when the judgment of the lower court was delivered.
The law is well settled, that where a party seeks to make use of additional grounds of appeal, he must seek and obtain the leave of Court. Thus, where the party fails to seek and obtain the necessary leave of court, as in the instant case, the additional grounds purportedly filed by him ought to be deemed incompetent, and liable to be discountenanced. See FAGUNWA VS. ADIBI (2004) LPELR -1229 (SC) P.12 paragraphs E -F per Niki Tobi, JSC, wherein His Lordship reiterated the trite elementary principle, thus:
The law is elementary that where a party seeks to make use of additional grounds, he must seek leave of Court… where he fails to do so, the additional grounds are incompetent and the court will so treat them. See also PUNCH NIGERIA LTD. VS. JUMSUM NIGERIA LTD (2010) LPELR -4887 (CA) 10 E.
In the circumstance, I hereby uphold Respondents’ submission to the effect that the said Grounds 3, 4, 5, 6, 7 & 10 of the Amended Notice of Appeal are incompetent. Thus, they are hereby struck out.

GROUND 8 Vis -a -Vis OBITER DICTUM:
The grouse of the Appellant in Ground 8 of the Amended Notice of Appeal is against the finding of the lower court alluding to the frame of mind of the 2nd Respondent, and the state of health of his wife. However, according to the Respondents’ learned senior counsel, that finding is merely an obiter dictum. Further submitted, that neither the frame of mind of the 2nd Respondent, nor the state of health of his wife were part of the issues before the lower court. That, the Respondents did not make those facts the basis of urging the lower court to uphold their contention that the Appellant was wrong in relying on the said exhibits “GG” in selling the shares.
Instructively, the law is settled, that it’s not every finding or pronouncement of a court that should be the basis of an appeal. And that a finding or pronouncement by a court which does not form part of the ratio decidendi of the decision of the court ought not to be a basis of an appeal. See OGUNYADE VS. OSHUNKEYE (2007) LPELR -2355 (SC), wherein the Supreme Court held that –
A judgment of court must be based and confined to the issues joined by the parties in their pleadings… A judgment unrelated to the relief sought or the issues joined of a claim tried on pleadings cannot be sustained. Per Mustapha, JSC (as he then was); See also ASIEMO VS. AMOS (1975) 2 SC (Reprint) 54 @ 63; 1 NCAR NIG. LTD VS. BENSON TRANSPORT LTD. (1975) 3 SC (Reprint) 81; METAL CONSTRUCTION (WA) LTD & ORS VS. MIGLIORE (1979) 6 -9 SC (Reprint) 118 -124C; DEDUWA VS. OKORODUDU (1976) 9 -10SC 208 @ 216; AIC LTD VS. NNPC (2005) 11 NWLR (Pt. 937) 563 @ 590 paragraphs E -F.
In the circumstance, I uphold the submission of the Respondents’ Senior Counsel to the effect that the finding of the lower court regarding the 2nd Respondent’s frame of mind vis -a -vis the state of health of his wife tantamounts to an obiter, as it does not form part of the ratio decidendi of the decision of the lower court. And I so hold. The said Ground 8 is thus hereby struck out.
In the light of the above far-reaching postulations, its rather obvious that the instant appeal is grossly incompetent, thus ought to be dismissed. As found herein above, the Appellant’s brief, filed on 20/9/11, was at variance with the exhibit “AA1” upon which the court order (granted on 14/9/11) was based. The law is settled, that when an Appellant fails to file his brief within the time provided for in the Rules of court, or within the time as extended by the court, the Respondent is at liberty to apply to the court for the appeal to be dismissed for want of prosecution. See Order 18 Rule 10 of the Court of Appeal Rules, 2011.
For the avoidance of any lingering doubt, this court, nay any court of law for that matter, has all inherent powers and sanctions of court to enforce the veritable Rules of practice (and procedure), with a view to suppressing the wanton and rather contemptuous abuse of the judicial processes thereof. See Section 6 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999, as amended; ERISI VS. IDIKA (1987) 4 NWLR (Pt. 66) 503; ONIFADE VS. OLAYINWOLA (1990) 2 NSC (Pt. 3) 42; OGBU VS. URUM (1981) 4 SC1; OLOWU VS. ABOLORE (1993) 5 NWLR (Pt. 293) 255; BABAYA VS. BIDA (1998) 2 NWLR (Pt. 538) 367.
Consequently, having amply satisfied myself that the instant appeal is incompetent, it’s hereby dismissed by me.
There shall be no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment just pronounced by my learned brother, Saulawa, J.C.A., that by filing a brief of argument outside the one mandated by the order of the Court to be filed, the appellant’s said brief of argument is incompetent. If the order of Court had not specified the brief of argument the appellant was to file, then the appellant would have been right and at liberty to file any brief other than the one attached to the motion paper.
It is for the reason given above that I too uphold the preliminary objection to the brief and hereby strike out the said incompetent brief and rest my judgment on the score and subscribe to the consequential order on costs contained in the judgment of my learned brother, Saulawa, J.C.A.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my brother Ibrahim Mohammed Musa Saulawa JCA. I agree entirely with his opinion and conclusions, and I agree that failure of the Appellant to file his brief within the time prescribed by the Rules of Court, and ask for extension of time to do so, entitles the Respondents to apply to Court, for the dismissal of the Appeal for want for prosecution.
The appeal is devoid of merit and same is dismissed by me. I also subscribe to the consequential order made as to costs.

Appearances

U. Uyi Legal Officer
Tope Ashejunshango BanwoFor Appellant

AND

Opeyemi Usiola with Ayanlewa OnojaFor Respondent