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UBA PLC v. RIOK (NIG) LTD. & ORS (2022)

UBA PLC v. RIOK (NIG) LTD. & ORS

(2022)LCN/16531(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, January 19, 2022

CA/A/356/2019

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

1. RIOK (NIG) LTD. 2. DR. TED ISEGHOHI EDWARDS (Doing Business Under The Name And Style Of Edwards & Partners Law Firm) 3. GLOBAL SERVICES CONSULTING LTD. 4. BIZ PLUS CONSULTING SERVICES LTD. 5. ATTORNEY GENERAL OF THE FEDERATION 6. CENTRAL BANK OF NIGERIA RESPONDENT(S)

 

RATIO

THE FUNDAMENTAL RIGHT OF ALL PARTIES TO AN ACTION BE HEARD BY THE COURT

Our adversarial judicial system seriously frowns at any decision taken against a party, who has not been accorded the opportunity of being present; oftentimes, as in this case excuses are made, without justification, that the party had the opportunity but failed to make use of it. The right to being heard fairly is so fundamental it should not be toyed with under any guise. As a matter of both fact and law it is the whole essence of the equitable maxim: audi alteram partem. 
“… a Judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a material point no matter how clear it may appear, and, without hearing any of the parties to be affected by the decision, decides it. That can not be even handed justice. A Court ought never raise an issue for either of the parties and, without hearing both parties proceed to base its judgment on it”; SEE UGO V. OBIEKWE (1989) 1 NWLR (PT.99) 566 AT 582 PARAGRAPHS A – D, PER NNAEMEKA- AGU JSC SEE SHELDON V. BROMFIELD JUSTICES (1964) 2 QB 573; 578; R. V. HENDON JUSTICES, EXPARTE GORCHEIN (1973) 1 WLR 1502; INUA V. NTA (1961) 1 ALL NLR 576 AND EJOWHOMU V. EDOK- ETER MANDILAS LIMITED (1986) 5 NWLR (PT. 39)1.”
PER MUSTAPHA, J.C.A

THE POSITION OF LAW ON SERVICE OF AN ORIGINATING PROCESS ON A DEFENDANT

​The service of an originating process on a defendant is fundamental and a condition precedent to the exercise of jurisdiction by the Court. Failure to serve an originating process on the appellant is a very serious failing, which in the considered opinion of this Court ousted the jurisdiction of this trial Court; it is as simple as that. The service of process on the opposing party is meant to enable that party appear to defend itself against the relief sought, where he or his counsel is denied that service everything else goes up in flames, because the competence of the Court is jeopardized by that singular failing. It is also very important to bear in mind that failure to serve cannot be equated with an irregularity that can be cured, because it is fatal in every sense of the word. PER MUSTAPHA, J.C.A

WHETHER OR NOT A TRIAL COURT CAN GO OUTSIDE THE CLAIMS OR RELIEFS COURT BY PARTIES BEFORE IT

The trite position of the law is that, a trial Court cannot go outside the claims or reliefs before it; it has a duty to only adjudicate on claims or reliefs placed by parties before it. Generally speaking, it is not for the Court to make a case of its own from the evidence before it and proceed to decide issues on the basis of its own postulations different from the case made before it; See ADETOUN OLADEJI (NIG) LTD V. N.B. PLC (2007) 5 NWLR (PT.1027) PG. 415. The Court must always confine itself to the terms of the relief sought, otherwise, has no jurisdiction to grant any reliefs outside the ones claimed; see SALUBI V NWARIAKU (2003) 7 NWLR PT.819 PG 426. 
I have gone through the reliefs sought thoroughly; I find no relief related to the sharing formula prescribed by the trial Court. That being so, the order of the trial Court is effectively null and void, having been made without jurisdiction; see FUNDUK ENGINEERING LTD V JAMES MACARTHUR & ORS (1990) 4 NWLR part143 page 266 and ODOFIN V AGU (1992) 2 NWLR part 229 page 350. PER MUSTAPHA, J.C.A

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory High Court in suit No: FCT/HC/CV/472/2018 delivered on the 3rd of April, 2019 and presided by Hon Justice H. B. Yusuf.

In granting the reliefs sought by the 1st and 2nd Respondents in the amended originating summons the trial Court ordered the payment of:
“a. 1st Respondent a sum of $28,620,000.00 forthwith (Twenty Eight Million, Six Hundred and Twenty Thousand Dollars).
b. 2nd Respondent a sum of $71,380,000.00 (Seventy One Million, Three Hundred and Eighty Thousand Dollars)
c. Interest of 10% on the sum of $100,000,000.00 (One Hundred Million Dollars).
See pages 628 to 648 of the Record of Appeal Vol. II.

Dissatisfied the appellant appealed on three grounds by a notice of appeal filed on the 5th of April, 2019; the record of appeal in two volumes was transmitted on the 25th of April, 2019 and the supplementary record filed on the 6th of November, 2019 was deemed properly filed on the 9th of November, 2021. The Appellant’s brief was filed on the 30th of April, 2019; while the 1st and 2nd Respondents brief was filed on the 8th of October, 2019 but deemed properly filed on the 9th of November, 2019. 

The grounds of appeal shorn of their respective particulars are as follows: 
GROUNDS OF APPEAL 
GROUND ONE: 
The learned trial judge erred in law when after granting leave to amend the Originating Summons on the 29/3/2019, it proceeded to hear the suit thereby denying the Appellant fair hearing as guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. 
GROUND TWO: 
The learned trial judge erred in law when he made order that the Appellant should pay the 1st Respondent Riok Nigeria Limited a sum of $28,620,000.00 (Twenty Eight Million Six Hundred and Twenty Thousand Dollars) forthwith and the 2nd Respondent Dr. Ted Iseghohi Edwards a Sum of $71,380.00 (Seventy One Thousand, Three Hundred and Eighty Dollars) forthwith, in the absence of proof that the various sum were lodged with or domiciled with the Appellant. 
GROUND THREE: 
The learned trial judge erred in law when he made order for payment of 10% post Judgment interest relying on Order 39 Rule 4 of the Rules of Court. 

The reliefs sought at trial, before the amendment are as follows: 
i. A DECLARATION that the 1st and 2nd defendants are not entitled to share in the sum of $350,000,000.00 (Three Hundred and Fifty Million US Dollars) approved for payment of Legal/Consultancy Fees etc owed to the plaintiffs relating to the Paris/London club buy back over deduction refunds as per Exhibits A, B and C. 
ii. A DECLARATION that Linas International Limited (Consultant) having been paid the sum of $124,341,807.17 US Dollars out of the said sum of $350,000,000.00 (Three Hundred and Fifty Million US Dollars) the balance thereof shall be shared between the plaintiffs to exclusion of any other person. 
iii. A DECLARATION that the 5th defendant contrary to Exhibits A, B and C in contravention of the president’s approval. 
iv. AN ORDER of Court Compelling the 1st, 2nd and 4th Defendants to return the said sum of 125.4 Million US Dollars (One Hundred and Twenty Five Million, Four Hundred Thousand US Dollars) or it Naira Equivalent wrongfully paid to the 1st and 2nd defendants account Nos GSCL Consulting account No. 1021230610 credited with the sum of 16,250,000,000.00 and Biz Pius Consulting Service account No. 102120634 credited with the sum of 16,250,000,000.00, but now domiciled with 4th defendant to the General Escrow Account managed by the Honourable Attorney general of the Federation domiciled with the Central Bank of Nigeria. 
V. AN ORDER of the Honourable Court directing the Honourable Attorney General of the Federation to pay the said 125.4 Million US Dollars (One Hundred and Twenty Five Million, Four Hundred Thousand US Dollars) as part payment to the plaintiffs in proportion of their respective judgments 
vi. AN ORDER of this Honourable Court directing the 5th defendant, Central Bank of Nigeria to reverse the payments made to the 1st and 2nd defendants and pay the said 125.4 Million US Dollars (One Hundred and Twenty Five Million, Four Hundred Thousand US Dollars) as part payment to the plaintiffs in proportion of the respective judgments. 
vii. AND for such further Orders as the Honourable Court may deem fit to make in the circumstance. 

The reliefs sought after amendment deemed on the 27th March, 2019 are as follows: 
i. A DECLARATION that 1st and 2nd Defendants are not entitled to share in the sum of $350,000,000.00 (Three Hundred and Fifty Million Dollars) approved for payment of legal/consultancy fee etc. owed to the Plaintiffs relating to the Paris London Club Debt but back over deduction refunds as per Exhibit A, B and C 
ii. A DECLARATION that Linas International Limited (Consultants) having been paid the sum of $224,000,000.00 (Two Hundred and Twenty Four Million US Dollars) or its naira equivalent plus $17,000,000.00 (Seventeen Million US Dollars) paid to his Counsel out of the said sum of $350,000,000.00 (Three Hundred and Fifty Million Dollars) the balance thereof shall be shared between the Plaintiffs to the exclusion of any other person. 
iii. A DECLARATION that the instruction giving by the 3rd Defendant to the 5th Defendant to pay the sum of $100,000,000.00 (One Hundred Million US Dollars) to the Nigeria Governors Forums is in error and contrary to Exhibit “A, B, and C. ” 
iv. AN ORDER of Court restraining the 4th Defendant from paying to any other person other than the Plaintiffs the said sum of $100,000,000.00 (One Hundred Million US Dollars) or the N32 Billion Naira received by the 1st & 2nd Defendants now domiciled in the accounts or any other account to which the money has been moved by the 1st and 2nd Defendant in the UBA or any other banking or financial institution in so far as the said funds are retraceable to the sum of $100,000,000.00 (One Hundred Million US Dollars) or its naira equivalent paid out of the $350,000,000.00 (Three Hundred and Fifty Million Dollars) approved by the president. 
v. AN ORDER directing UBA, the 4th Defendant, to pay the said $100,000,000.00 (One Hundred Million US Dollars) or the equivalent of the sum of N32 Billion Naira received by the 1st and 2nd Defendant at 16.250 billion Naira each) forthwith as part payment to the Plaintiffs in proportion to their due under Exhibit “B”, failure of which the United Bank for Africa (UBA) will be primarily liable directly to the plaintiffs for the $100,000.00 or the sum of N32 Million Naira paid to 1st & 2nd Defendants. 
vi. AND for such further others as the Honourable Court may deem fit to make in the circumstance. 
See pages 434 to 438 of the Record of Appeal Vol. 1.

From the three grounds the following issues were formulated on behalf of the Appellant by G. Ofordile Okafor Esq., SAN: 
“1. Whether the trial Court was right to proceed with the hearing of the Originating Summons upon grant of leave to amend and after a deeming order, notwithstanding the absence of the Appellant and non-service of the Amended Originating Summons on them. 
Distilled from Ground 1. 
2. Whether the learned trial judge was right to make order for payment of specific sums to the 1st and 2nd Respondents outside the relief sought in the Originating Summons. Distilled from Ground 2.”

Ade Okeaya-lnneh Esq., SAN formulated the following issues of his own on behalf of the 1st and 2nd Respondents: 
“i. Whether the Court below gave the Appellant an opportunity to defend itself in the action brought against it and whether the Appellant can validly complain of a breach to its right to being heard in the circumstances. (Ground 1) 
ii. Whether the Honourable Court had the jurisdiction to grant consequential reliefs which gives effect to its judgment. (Ground 2).”

​The appeal will be decided on the issues formulated on behalf of the Appellant, not only because the issues are more or less the same, but also because it is the appellant.

ISSUE ONE: 
Whether the trial Court was right to proceed with the hearing of the originating summons upon grant of leave to amend and after a deeming order, notwithstanding the absence of the appellant and non service of the amended originating summons on them. 

It is submitted for the Appellant that from the record the 1st Respondent and the 2nd Respondent filed their amended originating summons on the 4th day of march, 2019, upon the grant of leave to amend and deeming order, the trial Court adjourned the matter for two days to enable the Attorney General respond, the Appellant was not represented in Court on the 27th of March, 2019 and there was no proof of service on it. So learned counsel contends, there is no justifiable reason for hastily hearing the application without service on parties; IMPRESIT BAKOLORI PLC V A.U.I.M.D LTD (2015) 1 NWLR part 1492 page 27. 

That when an amendment is made what stood before the amendment no longer defines the issues between the parties; GREEN FINGERS LTS V MUSAWA (2017)5 NWLR part 1558 page 308. Also that Order 25 Rule 5 of the High Court of the FCT (civil procedure Rules) 2018 require that parties be served with the processes filed; 21 days from which they ought to react; IMPRESIT BAKOLORI PLC V A.U.I.M LTD(2016) 1 NWLR part 1492 page 27 and ACHUZIA V OGBOMAH (2016) 8 NWLR part 1522 page 59.

It is further submitted that the trial Court proceeded to hear the case of the 1st and 2nd Respondents without serving the amended originating summons on the appellant or the hearing notice; ANPP V INEC (2010) 12 NWLR part 1212 page 549.

That the failing on the part of the trial Court is not a mere irregularity that can be cured, rather the entire proceedings has been vitiated; because consequences of the failure to observe the principle of fair hearing is that any decision reached is a nullity and an exercise in futility; OLAYIOYE V OYELARAMI (2019) 4 NWLR part 1662 page 351.

It is submitted for the 1st and 2nd Respondents in response that the trial Court gave sufficient opportunity to the appellant to defend itself before arriving at a final decision. So, the Appellant cannot validly complain of not being fairly heard; NEWSWATCH COMM. LTD V ATTA (2006) 12 NWLR part 993 page 144; UNUM V ASAGH (2018) LPELR-44254- CA and FORBY ENGR CO LTD & ANR V AMCON (2018) LPELR-43861-CA. 

That the Appellant was served the originating summons but elected not to appear because from the reliefs claimed, there is no relief against it, so it failed to respond to or join issues with the plaintiffs on its claim.

That the questions for determination and reliefs sought indicate that they were directed at the Appellant, especially question number two submitted for determination and relief (iv) at page 3 of the record of appeal.

It is submitted that the Appellant was expected as a responsible organization to put up a defense, but it shied away from doing that only to claim now that its right to fair hearing has been breached.

That the Appellant did not have a pecuniary interest in the suit, the only relationship the appellant has with the subject matter of the suit is that they are bankers to the 3rd and 4th Respondents who erroneously received the subject matter.

It is further submitted that the contention that the amended originating summons changed the nature of the claim before the Court is misconceived, because question 2 reveals that the question seeks to achieve the same objective as question 2 in the original summons, also relief (v) in the amended originating summons seeks to achieve the same objective with relief (iv) of the original originating summons, where an amended originating summons which has one and the same spirit with the original was heard and determined in its absence. 

It is contended also that reliance on Order 25 Rule 5 of the Rules of the trial Court is also misconceived, because the Appellant did not take advantage of the opportunity given to it to put up a defense; GENERAL OIL LTD V SUNDAY ODUNTAN & ANR (1990) 7 NWLR part 153 page 423. 

RESOLUTION OF ISSUE ONE: 
The 1st and 2nd Respondents applied to amend their originating summons by a motion filed on the 4th of March, 2019. The amended originating summons was deemed by the trial Court on the 27th of March, 2019 as duly filed and served.

It is very clear to this Court, from the original reliefs and the amended reliefs, copiously listed above that reliefs 2,3, 4 and 5 are without doubt completely new and a total departure from the original reliefs claimed. The Appellant did not respond to them because it had nothing to do with it, see pages 436 of volume 1 of the record of appeal and it is equally not in doubt that, when the trial Court proceeded to hear the amended originating summons it did so without service of hearing notice on the appellant who was the 4th defendant at trial. For some inexplicable reasons, the trial Court heard the case on the 29th of March, 2019, even though the defendants were entitled to 21 days to respond by the rules. 

No matter how bad a trial judge thinks a party’s case is, in civil trials, each party must be accorded every opportunity of canvassing its case to the best of its ability within the rules regulating the procedure to achieve the end of justice; ATOBATELE & ORS V FASERU & ORS (2012) LPELR-9305- CA. 

This is more so because in reaction to the amendment the 3rd and 4th Respondents filed a 39 paragraphs counter affidavit against the originating summons, see pages 169 to 173 of volume 1 of the record of appeal; while the 5th respondent filed a 13 paragraphs counter affidavit, see pages 117 to 119 of volume 1 of the record of appeal.
​ 
These depositions are clearly contentious, but regardless the trial Court heard the matter under the originating summons procedure, unsuitable as it is for contentious proceedings as in this case.

At the risk of prolixity it ought to be pointed out that the 1st and 2nd respondents filed their amended originating summons on the 4th of March, 2019. The trial Court adjourned the case for two days to enable the Attorney General to respond after the grant of leave to amend and the deeming order. The Appellant was not represented on the 27th of March, 2019, and there is nothing to show that it was served the amended originating summons; see pages 448 to 452 of the record of appeal, volume 2. Hearing the case without the Appellant is as hasty as it can get. Learned senior counsel to the 1st and 2nd Respondents’ contention that the Appellant chose to be absent cannot fly in the circumstances, I find the authority of IMPRESIT BAKOLORI PLC V A.U.I.M.D cited apt.

Our adversarial judicial system seriously frowns at any decision taken against a party, who has not been accorded the opportunity of being present; oftentimes, as in this case excuses are made, without justification, that the party had the opportunity but failed to make use of it. The right to being heard fairly is so fundamental it should not be toyed with under any guise. As a matter of both fact and law it is the whole essence of the equitable maxim: audi alteram partem. 
“… a Judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a material point no matter how clear it may appear, and, without hearing any of the parties to be affected by the decision, decides it. That can not be even handed justice. A Court ought never raise an issue for either of the parties and, without hearing both parties proceed to base its judgment on it”; SEE UGO V. OBIEKWE (1989) 1 NWLR (PT.99) 566 AT 582 PARAGRAPHS A – D, PER NNAEMEKA- AGU JSC SEE SHELDON V. BROMFIELD JUSTICES (1964) 2 QB 573; 578; R. V. HENDON JUSTICES, EXPARTE GORCHEIN (1973) 1 WLR 1502; INUA V. NTA (1961) 1 ALL NLR 576 AND EJOWHOMU V. EDOK- ETER MANDILAS LIMITED (1986) 5 NWLR (PT. 39)1.”

The contention that the questions for determination and reliefs sought indicated that they were directed at the Appellant, especially question number two submitted for determination and relief (iv) indeed begs the question, if they were directed at the appellant there wouldn’t have been any need to amend those paragraphs in the first place. Once an amendment is made, whatever stood before it no longer defines the issues between the parties; GREEN FINGERS LTD V MUSAWA(supra).
Furthermore Order 25 Rule 5 of the Rules of the High Court of the FCT clearly state that: 
“Whenever any originating process or pleading is amended, a copy of the amended documents shall be filed in the registry and copies served on all parties to the action” 

​The contention that the appellant was aware of the original originating summons because it failed to respond, believing, that there is no relief against it is stretching both logic and common sense too far. No one expects a normal person to jump into the fray merely because two people are fighting, without knowing what they are fighting about or whether it affects him. It is a different thing after realizing that they have a stake in the issue in dispute. Even if the Appellant knew about the original originating summons, as contended, why would it be expected to join the fray, when no relief is sought against it? The contention also that the original and the amended originating summons are so alike because of question 2 in the originating summons and relief (v) that they have the same spirit is neither here nor there. The fact of the matter is that they are different. 

Having been served with the processes the party so served is entitled to 21 days to react, hearing the matter without the benefit of exhausting the time allotted to it breaches the appellants right to fair hearing as provided by Section 36 (1) of the Constitution, as amended. 

​The service of an originating process on a defendant is fundamental and a condition precedent to the exercise of jurisdiction by the Court. Failure to serve an originating process on the appellant is a very serious failing, which in the considered opinion of this Court ousted the jurisdiction of this trial Court; it is as simple as that. The service of process on the opposing party is meant to enable that party appear to defend itself against the relief sought, where he or his counsel is denied that service everything else goes up in flames, because the competence of the Court is jeopardized by that singular failing. It is also very important to bear in mind that failure to serve cannot be equated with an irregularity that can be cured, because it is fatal in every sense of the word. 

It is for these reasons that I now resolve this issue in favour of the Appellant against, the 1st and 2nd Respondents 

ISSUE TWO: 
Whether the learned trial judge was right to make order for payment of specific sum to the 1st and 2nd respondents outside the relief sought in the amended originating summons. 

It is submitted for the Appellants that the amount disbursed by the trial Court and the manner of their disbursement is not contained in the reliefs sought by the 1st and 2nd Respondents; AIRTEL NETWORKS LTD V GEORGE (2015) 4 NWLR part 1448 page 60. That the fact that the 1st and 2nd Respondents did not seek for the assistance of the trial Court in the disbursement or sharing of the funds is evident from the questions for determination; EMIRATES AIRLINE V AFORKA (2015) 9 NWLR part 1463 page 80. 

As a consequence, it is further submitted that the judgment of the trial Court is a nullity and has robbed the trial Court of Jurisdiction; and also that the effect of the judgment of  the trial Court is that each of the 1st and 2nd Respondents could take out a writ of execution against the Appellant; the trial Court went beyond evaluation of the case of the 1st and 2nd Respondents to proffer its own solution; ESTISIONE H. NIG. LTD V OSUNSTATE GOVERNEMET (2012) 14 NWLR part 1321 540. That the judgment of the trial Court is perverse and ought to be set aside for the same reason; EDILCON NIG. LTD V UBA PLC (2017) 18 NWLR part 1596 page 74 and ADEBIYI V STATE (2016) 8 NWLR part 1515 page 459.

It is submitted in response that the order of the trial Court prescribing the formula for sharing the funds to the 1st and 2nd Respondents is merely incidental to the overall decision of the Court. The order flows natural, and consequentially from the decision of the trial Court; AKPO V HAKEEM (1992) 6 NWLR part 247 page 266.

That a party need not seek consequential orders because the Court can suo moto make one depending on the circumstances of the case; and the 1st and 2nd Respondents who were affected did not complain about miscarriage of justice; and that the original originating summons though subsequently amended served as a record of the Court and the trial Court took judicial notice of its contents because reliefs (v) and (vi) sought by the 1st and 2nd Respondents in the original originating summons prescribed for a sharing formula in proportion to their respective judgments.

It is submitted that exhibit A served as a foundation on which the trial Court prescribed the sharing formula to give effect to its judgment by giving the consequential order which is not extraneous to the main relief; AMAECHI V INEC & ORS (2008) vol 158 LRCN 1. 

RESOLUTION OF ISSUE TWO: 
The trial Court in its judgment at page 647 of the record of appeal, volume 2 held that from the pleadings in the amended originating summons and exhibit A the plaintiffs are to share the $100,000,000 in the following order: 1. the 1st plaintiff 40% which translates to $127,523,180.23; 2. 2nd plaintiff, $300,000,000; and that the sharing ratio is 28.62% and 71.38%.

The trial Court proceeded to make the following orders: a) the 4th defendant, IJBA, is ordered to pay the 1st plaintiff, the sum of $28,620,000 forthwith; b) the 4th defendant, UBA, is ordered to pay the 2nd plaintiff the sum of $71,380,000 as part payment for the claims against the Federal Government of Nigeria in the Paris London Club related refunds, failure of which the 4th defendant, UBA and the 5th defendant, CBN automatically become the primary debtors to the plaintiff for the disputed fund and execution shall lie against both the UBA and or the 5th defendant; and ordered that pursuant to Order 39(4) of the Rules of this Court the $100,000,000 shall attract post judgment interest of 10% from the date of judgment till the entire sum is paid; see page 648 of volume 2 of the record of appeal.

These disbursements are clearly not in the reliefs sought by the 1st and 2nd respondents; see pages 2 to 3 of the record of appeal. The trite position of the law is that, a trial Court cannot go outside the claims or reliefs before it; it has a duty to only adjudicate on claims or reliefs placed by parties before it. Generally speaking, it is not for the Court to make a case of its own from the evidence before it and proceed to decide issues on the basis of its own postulations different from the case made before it; See ADETOUN OLADEJI (NIG) LTD V. N.B. PLC (2007) 5 NWLR (PT.1027) PG. 415. The Court must always confine itself to the terms of the relief sought, otherwise, has no jurisdiction to grant any reliefs outside the ones claimed; see  SALUBI V NWARIAKU (2003) 7 NWLR PT.819 PG 426. 
I have gone through the reliefs sought thoroughly; I find no relief related to the sharing formula prescribed by the trial Court. That being so, the order of the trial Court is effectively null and void, having been made without jurisdiction; see FUNDUK ENGINEERING LTD V JAMES MACARTHUR & ORS (1990) 4 NWLR part143 page 266 and ODOFIN V AGU (1992) 2 NWLR part 229 page 350. 

The contention that the sharing formula prescribed by the trial Court is incidental to the overall decision of the Court is absurd as it is without basis, even if resort is had to exhibit A as suggested; granted the Court is a Court of record, bound by its record. To suggest that the original originating summons, amended and replaced, contain reliefs which appear to prescribe a sharing formula, and therefore should be reckoned with is absurd, not least because once an amendment is made what stood before goes, and is replaced by the amendment. To that extent, even if the original originating summons had some kind of formula, it will make no sense to resort to it having been amended and replaced. 
It is very important to emphasize that once an amendment is granted, what stood before the amendment no longer defines the issues tried; this is because once an amendment to a pleading is allowed by the Court the amendment relates to the original pleading which must be regarded as having been discarded; See: MADAM SAFURATU SALAMI & ORS V SUNMONU ENIOLA OKE(1987) 9 – 11 SC 43; VICTOR ADEGOKE ADEWUMI & ANOR V ATTORNEY GENERAL OF EKITI STATE (2002) 2 SCM 1 and NWOSU V I.S.E.S.A. (1990) 4 SC 7. 

It is for these reasons that I now resolve this issue also in favour of the Appellant, against the 1st and 2nd Respondents. Having resolved all the issues that call for determination in favour of the Appellant, against the Respondents, the appeal succeeds per force, and it is accordingly allowed. Judgment of the trial Court is hereby set aside. 

Cost of N50,000 is awarded in favour of the Appellant, against the 1st and 2nd Respondents.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother MOHAMMED MUSTAPHA, JCA. 

I am in agreement with the reasoning and the conclusion thereat. I too do allow this appeal. I abide by the consequential Orders inclusive of the Order of Cost as made in the lead Judgment.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mohammed Mustapha, JCA. I agree with the reasoning therein and the conclusion reached.

Appearances:

G. Ofodile Okafor SAN For Appellant(s)

Ifeanyi Okpor Esq. for the 1st & 2nd Respondent.

P. I. N. Ikwueto SAN with Alex Ukwueze for the 3rd & 4th Respondent. 

Zekeri Garba for the 6th Respondent. For Respondent(s)