WILLIAMS & ANOR v. ADOLD/STAMM INTL (NIG) LTD & ANOR (2022)

WILLIAMS & ANOR v. ADOLD/STAMM INTL (NIG) LTD & ANOR

(2022)LCN/5021(SC)

In The Supreme Court

On Friday, January 07, 2022

SC.404/2013

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

FOLARIN ROTIMI ABIOLA WILLIAMS ESQ TOKUNBO ENIOLA WILLIAMS, SAN APPELANT(S)

And

ADOLD/STAMM INTERNATIONAL (NIG) LIMITED CHIEF ROTIMI WILLIAMS CHAMBERS RESPONDENT(S)

RATIO

WHERE NON COMPLIANCE WITH THE RULE WOULD NOT LEAD TO MISCARRIAGE OF JUSTICE

The non-compliance with the rules in this case is in the course of the proceeding after it has validly commenced. Order 5 Rule 1 (2) (Supra) has given the Court the discretion to condone this class of non-compliance with the rules, treat it as a mere irregularity and not allow it vitiate the relevant process except where the non-compliance has in the circumstances of the case occasioned a miscarriage of justice. EMMANUEL AKOMAYE AGIM, J.S.C

LEAVE IS A CONDITION PRECEDENT TO THE EXERCISE OF THE RIGHT OF APPEAL

It is to be stated that where leave is required before an appeal is taken but which was not obtained the appeal is incompetent as the Court lacks jurisdiction. Leave is a condition precedent to the exercise of the right of appeal. It goes to the question of jurisdiction of the appellate Court to the appeal. It will be an accepted fact that where this condition precedent is necessary but has not been fulfilled, there is legally speaking no appeal. Mary Ukaego Peter-Odili , J.S.C

TO DECIDE WHETHER THERE IS A PROPER APPEAL PENDING BEFORE THE SUPREME COURT BY VIRTUE OF SECTION 233 SUPRA, ONE HAS TO GO BEYOND THE PAPERS TITLED “NOTICE OF APPEAL

When an appellant is appealing on a point of law, that is to say, when his grounds of appeal are grounds of pure law he appeals as of right, see Section 233 (3) of the 1999 Constitution. But when he appeals on grounds of facts or of mixed law and fact his purported appeal is incompetent, a nudum factum, without the requisite leave. Therefore, to decide whether there is a proper appeal pending before the Supreme Court by virtue of Section 233 supra, one has to go beyond the papers titled “Notice of Appeal” and carefully examine all the grounds supporting and animating that Notice of Appeal. If none of the grounds is a ground of law and if in addition no prior leave has been obtained pursuant to Section 233(3) of the 1999 Constitution, then no appeal is yet pending before the Supreme Court. Papers titled Notice and Grounds of Appeal had been filed yes indeed, but those papers are worthless and quite ineffective to constitute a valid and competent appeal. The papers titled “Notice of Appeal” and “Grounds of Appeal” were coram non-judice and a nullity and the Court of Appeal would be perfectly justified in the exercise of its inherent jurisdiction not to overlook those invalid “Notice” and “Grounds” as constituting an appeal to the Supreme Court which should have deprived it of further jurisdiction in the matter. See Lazard Brothers & Co. v. Midland Bank Ltd (1933) A.C. 289. If Notice and Grounds of Appeal are not in conformity with the requirements of the Constitution and of the law they must be treated as void ab initio. Macfoy v. United Africa Company Ltd (1961) 3 WLR 1405, (1963) 3 All E.R 1169; (1962) AIC 152 refers. Mary Ukaego Peter-Odili , J.S.C

ANY ISSUE FOR DETERMINATION BASED ON SUCH INCOMPETENT GROUND OF APPEAL GOES TO NO ISSUE AND SHOULD BE STRUCK OUT

It needs no saying that where a ground of appeal is incompetent, any issue for determination based on such incompetent ground of appeal goes to no issue and should be struck out. In the case of Thor Limited vs. FCMB (2002) MJSC Vol. 4 page 179 at page 190 paras. F-G, the Supreme Court held thus:
“I am therefore of the view that the Defendant having not obtained leave to argue this ground of appeal, it is accordingly declared incompetent and liable to be struck out, vide Manigoro v. Garba (1990) 10 BWLR (Pt. 624) 555 at 568. It is trite that where a ground of appeal is incompetent, any issue for determination based on such incompetent ground of appeal to which a concession was indeed made during hearing, goes to no issue and should be struck out. Mary Ukaego Peter-Odili , J.S.C

THE DELIVERY OF THE RULING DURING THE COURT’S ANNUAL VACATION

The delivery of the ruling during the Court’s annual vacation, in my considered view is at best, an irregularity, which cannot vitiate the proceedings. Order 5 Rule 1 (2) provides that failure to comply with the rules as to time place, manner or form, shall be treated as an irregularity and may not nullify such steps taken in the proceedings. I agree with learned counsel for the 1st respondent, relying on the dictum of Tobi, JCA (as he then was) in Veritas Vs Citi Trust Investment Ltd. (1993) 3 NWLR (Pt.281) 349 @ 369 to the effect that the appellants have not shown that they suffered any injustice by the delivery of the ruling during the Court’s annual vacation. Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): The Lagos State Development and Property Corporation (LSDPC) owed the 1st respondent a debt arising out of a building contract. The 1st respondent engaged the 2nd respondent as its legal practitioners to recover the said debt. The 2nd respondent as the 1st respondents’ legal practitioners commenced and prosecuted Suit No. 10/2M/82 to recover the said debt. Upon recovery of the judgment debt after a protracted legal process, the judgment debt with interest was at the request of the 2nd respondent herein on 17-7-2010 paid into its account at United Bank for Africa Plc (UBA) on a fixed deposit at the interest rate of 11% per annum with a standing request to roll it over periodically. After the death of Chief F.R.A Williams SAN, the then Head of the 2nd respondent herein, the appellants herein assumed full control and management of the 2nd respondent and its said UBA account as the signatories to the account. On 3-2-2005, the appellants and the 2nd respondent paid the sum of N15,534,801.74 to the 1st respondent.

In their pleadings, both sides joined issue on whether any part of the said judgment sum remained unpaid after the said payment of 3-2-2005. The 1st respondent herein as plaintiff contends that the balance of N21,534,801.75 was remaining unpaid and that the appellants herein and 2nd respondent herein as defendants converted the said unpaid balance to their personal use without the authority of the 1st respondent and have refused to pay same even after several demands and reminders. The appellants and 2nd respondent herein as defendants contend that the 1st respondent was paid its complete entitlements in the suit as agreed during the life time of Chief F.R.A Williams SAN, that they are not owing the 1st respondent any money as it claimed, that Chief Ladi Williams SAN, the first son of Chief F.R.A Williams SAN is the alter ego and the directing mind of the 1st respondent, that at the time the 2nd respondent herein prosecuted the suit and appeals for the recovery of the debt due to the 1st respondent from LSDPC, Chief Ladi Williams was working in the 2nd respondent herein as legal practitioner, that Chief Ladi Williams SAN had on 23-11-2005 entered into an agreement with the appellants and 2nd respondent herein wherein he acknowledged and accepted that he had no claims whatsoever against the 2nd respondent and appellants herein in respect of his severance and voluntary disengagement from the 2nd respondent in respect of any matter, suit or case handled by the firm, that this agreement was comprehensive in respect of all the claims of Chief Ladi Williams SAN, including the claims made in the name of the 1st respondent, that Chief Ladi Williams is actually one and the same with the claimant and that the 2nd respondent had no fiduciary duty or any duty to the 1st respondent.

The appellants and 2nd respondent as defendants on 16-4- 2007 applied to the trial Court for an order staying the proceedings in suit no. ID/86/2007 filed by the 1st respondent against them and referring the above mentioned dispute to arbitration on the ground that the agreement above mentioned (attached to their affidavit in support of their application as exhibit TEW – (1)) has an arbitration clause that requires such claim as that of the 1st respondent to be referred to arbitration. After hearing both sides on this application the trial Court on 26-7-2007 decided thusly –

“Suffice it to say that, from a distillation of the affidavit evidence before me in this application, the contention of the Defendants/Applicants is that Chief Ladi Williams SAN being the alter-ego of the claimant, the claimant was bound by the agreement exhibit – TEW 1 and accordingly the claimant and or Chief Ladi Williams SAN could no longer sue to Court in respect of the claimant’s judgment funds in the hands of the 3rd defendant’s chamber the same having been compromised or settled as in the provisions of clause 1.2 of exhibit – TEW – 1, which dictated per clause 19: thereof, that any dispute arising from the execution of that agreement be first referred to arbitration. The claimant has however contended that not only is Chief Ladi Williams SAN, not the alter-ego of the claimant company, he has not authorized by the claimant’s Board of Directors to compromise its claim on the judgment sum in issue and that in any case, the claimant company was not a party to and nowhere mentioned in exhibit – TEW -1- which contained the Arbitration Clause, the basis of this present application by the Defendant’s/objections. The first issue and the one upon which every other issue will turn upon in this matter is therefore who are the parties to exhibit – TEW – (1) and the nature or tenor of that agreement itself.
The PREAMBLE Clause of Exhibit TEW – (1) is very instructive in this regard. It states all the parties to the agreement. Because of its importance, I shall reproduce it hereunder as follows: –
“This agreement is made this 23rd day of November, 2005 between Oladipupo Akanni Olumuiwa Williams … (which expression shall include his heirs and successors in title of the first part, and Kayode Adekunle Olusegun Williams … (which expression shall include his heirs and successors in title of the second part and Folarin Rotimi Abiola Williams which expression shall include his heirs and successors in title of the third part and Tokunbo Eniola Williams … (which expression shall include his heirs and successors in title of the fourth part”
The RECITALS Clause of Exhibit TEW – (1) is also very instructive on what the subject matter of the agreement is and it reads: –
WHEREAS
1. Ladi, Kayode, Folarin and Tokunbo are children and sons of the Late Chief Fredrick Rotimi Alade, Williams and the Late Chief (Mrs.) Beatrice Oladunni Williams hereinafter referred to as Papa and mama respectively.
2. Papa had interest in real and personal property and during his lifetime made various trust instruments in respect of these properties.
3. Some properties continue to be held in the name of papa.
4. All the personal property of mama passed to papa by operation of law and a third of the real property of Mama now forms part of Papa’s Estate
5. Ladi, Kayode, Folarin and Tokunbo are full brothers who out of brotherly love have elected to enter into this agreement in respect of their interest in the subject matter hereof”
The agreement proceeded to define parties/persons/properties mentioned therein.
The Habendum Clause then proceeded to state the respective shares of the parties the various real and personal properties involved.
Having described Chief F.R.A. Williams Chambers in the definition Clause foresaid, Clause 1:2 of the Habendum clause goes on and provides: –
“Ladi has decided to disengage from his position at Chief Rotimi Williams Chambers by the 31st March, 2006 and set up his own practice in Victoria-Island and he acknowledges and accepts that he has no interest in the firm known as Chief Rotimi Williams Chambers and has no claim whatsoever against that firm or Folarin or Tokunbo in respect of his severance and voluntary disengagement from the firms or in respect of any matter, suit or case handled at any time by the firm”
Now all the provisions in Exhibit – TEW – (1) above quoted, none has in any way or manner mentioned or referred to Adeld Stamm – the Claimant herein.
I have deliberately set out the preamble or parties clause of Exhibit – TEW (1) wherein the parties to that agreement are stated and described.
I have also set out the Definition Clause where all relevant persons/properties or terminologies are clearly explained. I have also deliberately set out the Recital Clause where the entire Chief F.R.A Williams SAN of blessed memory’s nuclear family was defined, and what probably and logically appears to be the subject matter of that agreement i.e. the state of Chief F.R.A Williams and Chief Mrs. Beatrice Olubunmi Williams; the properties – (real and personal) constituting same and those beneficially entitled thereto – are defined.
In short, from all of the above clauses, it is transparently clear that this agreement Exhibit – TEW – (1) is an agreement between the children of Chief F.R.A Williams on the division of the properties of their father and their mother Beatrice Olubunmi Williams, simpliciter.
In no part or clause of the entirety of Exhibit – TEW – (1) is Adold Stamm – the claimant herein mentioned as for the Court to even come to the conclusion that even it was not stated to be a party, it was referred to as one of the subject matter of the agreement. Clause 1:2 of Exhibit – TEW -1 which I have reproduced above would therefore be read only in the context of the subject matter of the entire agreement itself, which I had concluded is the Estate – (real and personal properties) of the parents of the parties – Ladi, Kayode, Folarin and Tokunbo Williams alone.
In further support for this conclusion, I emphasize the phrase has no claim whatsoever against that firm or Folarin and Tokunbo in respect of his severance and voluntary disengagement from the firm or in respect of any matter, suit or case handled at any time by the firm”
This clause itself has manifested its purpose i.e. the disengagement of Ladi from the firm.
Yes…. The matter of Adold Stamm – the present claimant – comes within “any case handled at any time by the firm, however that can only be interpreted to cover a situation where Chief Ladi Williams makes any personal claim on any fee or other entitlement of the firm in respect of any matter handled by the firm for that company. It cannot be otherwise, for that would amount to foreclosing the company – (a client of the firm) from claiming its monies or any other dues from the firm by an agreement to which it was not a party.
That will be quite contrary to the very basic and elementary principles of the Law of Contract to wit that only persons who are parties to contrary are bound by the terms thereof.
See S.71 (1) Companies and Allied Matters Act LFN 1990. Logically loc, such an interpretation would also make nonsense of the principle of corporate personality enshrined in S. 37 of the Companies Allied Matters Act 1990 LFN and the age long locus classicus SALOMON V SALOMON & CO. LTD 1897 AC 22. And LEE V LEE’s AIR FARMING LTD. 1961 A-c 12.
It has been very vigorously canvassed in this application by the objectors that Chief Ladi Williams was the alter-ego of the Claimant company and therefore that the company must be bound by all the steps he took.
I agree entirely with the position in law that in deserving circumstances, the veil of incorporation would be lifted. However, with due respect, this is not one of such occasion. In this matter, no issue of deception or any illegal act or breach of statutory provisions is involved.
The company as a legal facade has not been used to perpetrate any illegality or deceive any third-party to obtain any benefit. Rather it is the company’s own monies that is being asked for through the instrumentality of the said Chief Ladi Williams. I have also seen the affidavit of Tanga a Director of the company denying that the company authorize Chief Ladi Williams to compromise the payment to it of its judgment sum in the hands of the 3rd defendant chambers.
I therefore come to the conclusion that nothing in this case calls for lifting of any veil of incorporation of the claimant company in the circumstances or at all.
For the avoidance of any doubt my humble conclusion is that the claimant company was not party to Exhibit – TEW – (1), nor that it was subject matter of that agreement.
I also come to the conclusion that Chief Ladi Williams did not contract for that company in Exhibit – TEW – (1) – as to make it a beneficiary thereof and one which would then be bound by its terms if its board ratified same. The company has come out itself to claim its money – Exhibit – (ASI) is its Board Resolution to that effect.
I, having come to the above conclusions and since clause (19) which provides that disputes arising out of that agreement Exhibit – TEW – (1) be first referred to arbitration, is contained in the same agreement to which the claimant company is not a party, this objection and prayer for stay of proceedings pending reference to arbitration in this case crumbles.
The application fails and is hereby dismissed.”

The appellants herein appealed to the Court of Appeal against the above ruling of the trial Court contending inter alia that the learned trial Judge lacked the jurisdiction to deliver the ruling during the Court’s annual vacation without complying with the conditions precedent to sitting during the Court’s annual vacation.

On 1-3-2013, the Court of Appeal after extensively considering the above issue and three others raised for determination, dismissed the appeal for being devoid of merit.

On 14-3-2013, the appellants herein commenced this appeal in this Court by filing a notice of appeal containing six grounds for the appeal. The 1st respondent filed a respondent’s notice to confirm the judgment of the Court of Appeal on the additional ground that this Court would not disturb or interfere with the concurrent judgment or findings of the trial Court and the Court of Appeal, unless there are cogent and compelling reasons that justify such interference.

The appellants and 1st respondent filed, exchanged and adopted the following briefs- Appellants’ brief, 1st respondents brief and appellants’ reply brief. The 2nd respondent did not file any brief.

The 1st respondent’s brief raised and argued a preliminary objection to the appeal on the ground that the grounds of this appeal are of mixed law and facts and no leave of Court to appeal on those grounds was first obtained before the appeal was filed. The appellants argued in response to the preliminary objection in their reply brief.

I have carefully read and considered the arguments of all sides concerning this objection.

I will start the determination of the objection by reproducing the grounds for this appeal here for ease of reference.

The grounds of appeal are as follows: –
GROUND 1
“The learned Justices of the Court of the Appeal erred in law, when having found that the ruling of the lower Court was delivered I breach of Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 failed to set aside the ruling as not having competently delivered and therefore invalid.
PARTICULARS
1. The learned Judge had found that the ruling was delivered in breach of the provisions of Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure Rule) Rules 2004.
2. Having so found the Court of Appeal was obliged to hold that a fundamental condition precedent to the competence of the trial Court to sit and deliver the said ruling during the High Court’s long vacation under Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 was not fulfilled or complied with.
3. The delivery of the Court constituted a proceeding of Court.
4. The proceeding of the day including the ruling delivered was a nullity and ought to have been set aside.
5. The ruling was not valid and ought to have been set aside.
GROUND 2
The learned Justices of the Court of Appeal erred in law when they held as follows:
…I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, its rather obvious that on the 26/07/07 in question, all that the lower Court did was simply to read out and deliver the ruling. No issue was raised by the lower Court, suo moto that would have entitled the parties to the ruling. Secondly, it was not the case of the Appellant that the delivery of the ruling has in any way resulted in a miscarriage of justice thereto, or any party for that matter. See Obodo V Olomu (1987) 3. NWLR (Pt. 59) 111, Eseigbe v Agholor (1990) 7 NWLR (Pt. 161) 234, Veritas Ins. Co. Ltd v. Citi Trust Inv. Ltd (1993) 3 NWLR (Pt. 281) 249.
PARTICULARS
1. In so holding the Court failed to appreciate the Appellant’s point that the Court lacked jurisdiction to hold any proceedings on the date it delivered the ruling.
2. The consequence of a lack of jurisdiction is that the proceedings are a nullity no matter what.
3. The Court of Appeal failed to apply and be bound by the authoritative decision of the Supreme Court in Itaye & 7 Ors v Ekaidere (1978) 11 NSCC 485 that any such proceeding amounted to nullity.
4. The reliance by the Court of Appeal on the Court of Appeal case of Veritas Ins. Co. Ltd v. Citi Trust Inv. Ltd (1993) 3 NWLR (Pt. 281) 249 is unsupportable in the face of the aforesaid superior decision of the Supreme Court.
GROUND 3
The learned Justices of the Court of Appeal erred in law in affirming the decision of the trial Judge that Chief Ladi Williams SAN was not the alter ego and directing mind of the 1st Respondent and was therefore the actual Claimant/1st respondent.
PARTICULARS
1. By so holding, the learned Justices failed to appreciate the settled legal principle that an alter ego is the directing mind and will of a corporation, the very ego and centre of the personality of the corporation whose acts binds the company.
2. Admittedly Chief Ladi Williams SAN in Exhibit TEW2 consistently referred to the 1st Respondent as “my company” and “my balance” and thus held himself out as the company’s alter ego.
3. The Court had found that the 1st respondent was Chief Lady Williams’ company.
4. Having so found, it was obliged to lift the veil of incorporation and regard the 1st Respondent as Chief Ladi Williams.
5. The learned Justices ought to have held that 1st Respondent is actually Chief Ladi Williams using an artificial veil of incorporation.
GROUND 4
The learned Justices of the Court of Appeal erred in law when they upheld the finding of the trial Court to the effect that “the 1st Respondent was not mentioned in the exhibit and could not be liable for the terms and the conditions inherent in Exhibit TEW1.
PARTICULAR
1. In so holding, the Court showed a misapprehension of the whole tenor and substance of the Appellant’s argument.

2. The gravamen of the Appellant’s submission is that the 1st Respondent is actually Chief Ladi Williams and this makes the actual naming of the 1st Respondent unnecessary and irrelevant.
3. That being so, the 1st Respondent was thus liable for the terms and conditions inherent in Exhibit TEW1.
GROUND 5
The learned Justices of the Court of Appeal erred in law when they held that:
“…the said Exhibits TEW2, TEW4, 7 TEW5, owing to the obvious fact that they were written during the course of the bona fide attempt to settle the matter between Chief Ladi Williams, SAN and the Appellants, they are inadmissible.
PARTICULARS
1. There was no appeal by the 1st Respondent against the learned trial Judge’s decision sub silentio that the said documents were not inadmissible.
2. The Court of Appeal had no jurisdiction to entertain the point about the admissibility of the documents let alone determine that they were so inadmissible.
3. Also, by so doing the Justices of the Court of Appeal misconstrued and misapplied the provisions of Section 25 of the Evidence Act which is clearly not application to this case.

The Justices of the Court of Appeal wholly misapplied the decision of this Court in the case of Fawehinmi v. NBA (No. 2) (1989) 2NWLR (Pt. 105) at 558 whose facts are clearly distinguishable from the case.
GROUND 6
The learned Justices of the Court of Appeal erred in law in refusing to stay proceedings in matter and refer parties to arbitration as they have contracted in Exhibit TEW1.
PARTICULARS
1. By so doing, the learned Justices of the Court of Appeal erred in law when in the case of MV Lupex v. N.O.C & S Ltd. (2003) 15 NWLR (Pt. 844) 469 at 488 which is to the effect that “where parties have chosen to determine for themselves that they would refer their dispute to arbitration instead of resorting to regular Courts, a prima facie duty is cast upon the Courts to act upon their agreement.
2. It was an admitted fact that there is an arbitration clause in the agreement entered into by the parties, contained in Exhibit TEW1.
3. The 1st Respondent was clearly Chief Ladi Williams and was bound by the terms of Exhibit TEW1.
4. It was an admitted fact that upon service of the originating processes on the Appellants, the Appellants without taking any steps brought an application praying the lower Court to stay proceedings pending arbitration.
5. The learned justices of the Court of Appeal ought to have stayed proceedings and referred the matter to arbitration.”

It is glaring that grounds 1 and 2 of this appeal raise questions only of law. The complain in the two grounds is that the Court of Appeal should have set aside the 26-7-2007 decision of the trial during the Court’s long vacation as a nullity for non-compliance with Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004. An appeal to this Court against the judgment of the Court of Appeal on a ground of law lie as of right and no leave of Court is required to so appeal by virtue of S. 233(2)(a) of the Constitution of the Federal Republic of Nigeria 1999 which provides that “An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases- (a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.” It is obvious that the complain in grounds 3 and 4 would involve a determination of the factual question of whether in the circumstances of the case, the concurrent decisions of the trial Court and the Court of Appeal refusing to lift the veil of incorporation are correct. The complain in ground 6 require a determination of the factual question of whether the circumstances of the case warrant a stay of the proceedings brought by the 1st respondent that was not a party to the agreement in TEW1 containing the arbitration clause. The Court in considering an application to lift the veil of incorporation of a company or to stay proceedings in a case would have to exercise its discretion having regard to the circumstances of the case. An appellate Court in reviewing such exercise of discretion must consider the facts of the case including the facts relied on by the trial Court in exercise of its discretion one way or the other.
Since grounds 3, 4 and 6 require the determination of issues of facts and law, they involve mixed questions of law and facts.
Leave of Court to appeal on grounds of mixed law and must be obtained before the appeal can be competently brought. Since leave to appeal on those grounds was not obtained before the appeal on those grounds was filed, the appeal on the said grounds 3, 4, and 6 is incompetent. The said grounds of appeal are hereby struck out. Only grounds 2 and 5 are valid as they are grounds of law alone.

As it is, issues of Nos II and IV raised for determination in the appellant’s brief and the respondent’s brief are equally incompetent since they are derived from the incompetent grounds of appeal Nos 3,4 and 6. The law is settled that for an issue raised for determination in an appeal to be valid for consideration it must derive from a competent and a valid ground of the appeal. It would be incompetent and not valid for consideration if the ground from which it is derived is not competent. Therefore, issues nos ii and iv raised for determination in the appellant’s brief are hereby struck out.

As it is, only issues nos. i and iii raised for determination in the appellants and respondent’s brief are valid, as they derive from the competent grounds of appeal.

Let me now proceed to determine issues nos. i and iii in the appellant’s brief. Let me start with issue no. i which asks – “i. Whether the lower Court ought to set aside the ruling of the trial Court having found that the ruling was delivered during the annual vacation of the trial Court. Distilled from grounds 1 and 2 of the Notice of Appeal.”

I have carefully read and considered the arguments in the respective briefs on this issue.

On 25-6-2007, the trial Court heard the preliminary objection and application by appellants and 2nd respondent for an order of stay of the proceedings in Suit No. ID/86/2007 brought by the 1st respondent herein and an order referring the suit for arbitration. After conclusion of addresses by all sides, the trial Court reserved ruling on the application for 6-7-2007 at 12 noon. It is glaring from the record of this appeal that the trial Court did not render the ruling on that day. The said record show that it delivered the ruling on 26-7-2007.

It is not in dispute that as at 26-7-2007 when the ruling was delivered by the trial Court, its long vacation had commenced about 11 days before then, by operation of Order 45 Rule 4 (d) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides thusly- “During the long vacation i.e. the period beginning middle of July and ending on a date not more than 6 weeks later as the Chief Judge may by notification in the gazette appoint.”
The appellants herein contend that the trial Court lacked the Jurisdiction to deliver the said ruling after the commencement of the long vacation without the consent of all the parties first obtained to do so and without an application by any party for an urgent hearing of the suit and without a determination of the urgent need for the delivery of the ruling during the long vacation and that therefore the delivery of the said ruling on 26-7-2007 during long vacation is in breach of Rules 4 and 5 of Order 45 of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides thusly “Subject to the directions of the Chief Judge, sitting at the High Court for the dispatch of Civil Matters will be held on every week day except:
(a) On any Public Holidays;
(b) During the week beginning with Easter Monday;
(c) During the period beginning on (Christmas Eve and ending on the 2nd January next following;
(d) During the long vacation i.e. the period beginning middle of July and ending on a date not more than 6 weeks later as the Chief Judge may by notification in the Gazette appoint.
(1) Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a judge during any of the periods mentioned in paragraphs (b), (c) or (d) of Rule 4 (except on a Sunday or public holiday) at where such cause or matter is urgent or a judge, at the request of all the parties concerned agrees to hear a cause or matter.
(2) An application for all urgent hearing shall be made by motion exparte and the decision of the judge on such an application shall be final.”
It is obvious that all the parties did not consent to the delivery of the ruling during long vacation, that there was no application by any of the parties to the Court for the urgent delivery of the ruling and there was no determination of the trial Court that there was urgent need for the delivery of the ruling during long vacation. So the provisions of Rules 4 and 5 (Supra) were not complied with before the trial Court sat to deliver the ruling during long vacation.
The appellants herein argue that the Court of Appeal was wrong to have held that the non-compliance with Rules 4 and 5 (Supra) did not vitiate the said ruling of the trial Court. The exact text of that portion of the Court of Appeal judgment reads thusly- ‘Nonetheless, contrary to the Appellant counsel’s submission, the mere fact that the delivery of the vexed ruling during the vacation period is in breach of/or contrary to the express provisions of Order 45 Rule 4 (d) of the High Court of Lagos State (Civil Procedure) Rules (Supra), notwithstanding. I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, it’s rather obvious, that on the 26/07/07 in question, all that the lower Court did was simply to read out and deliver the ruling. No issue was raised by the lower Court, suo motu, that would have entitled the parties to the right of fair hearing (to re-address the Court) prior to the delivery of the ruling. Secondly, it was not the case of the Appellant that the delivering of the ruling has in any way resulted in a miscarriage of justice thereto, or any party for that matter. See OBODO vs Olomu (1987) 3 NWLR (pt.59) 111, ESEIGBE VS AGHOLOR (1990) 7 NWLR (pt. 61) CA/L/151/10 234, VERITAS INS. CO. LTD VS CITI TRUST INV, LTD (1993) 3 NWLR (PT281) 349.
Most particularly, in the latter case of VERITAS INS CO. LTD VS CITI TRUST INV. LTD (supra), this Court was to have aptly held, inter alia, thus –
Parties and or their counsel sit in Court and listen to the judgment being delivered. They do not play any sole beyond listening and at times taking down random notes in the course of the delivery of the judgment. Some do not take notes. They just listen and leave the Court at the end of the judgment, with the unusual cliché as the Court pleases even; when the pleasure of the Court is not the pleasure of the party who lost (sic) the case.
In my view, since the Appellant, even if in Court, was not to take any legal steps to vindicate his legal ‘right’ if any, he has not suffered any injustice. The best she should have done was to apply to arrest the judgment. In my view or opinion, failure to do so is not tantamount to a miscarriage of justice, in the light of the circumstances of and level of the non-compliance with the sales. The Appellant merely raised and fomented a heavy storm inside a very small tea cup. Beyond the turbulence of the storm there is really nothing. Perhaps the position should have been different if the matter was at the stage of physically taking evidence or at the point of address. Per Niki Tobi, JCA (as he then was), in his notorious erudite characteristics.
There is no gainsaying the fact, that by the well cherished doctrine of stare decisis (Judicial precedent), this Court is bound by the said previous decisions thereof, nay those of the Supreme Court for that matter.”
I think that this decision of the Court of Appeal cannot be faulted in view of Order 5 Rule 1 (2) of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that “where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any directions as he thinks fit to regularize such steps”.
The delivery of the Judgment during long vacation in breach of Rules 4 and 5 of Order 45 High Court of Lagos State (Civil Procedure) Rules is a non-compliance with the requirements of the Rules as to time in the course of the proceedings.
By virtue of Order 5 Rule 1(2) (Supra), such non-compliance with the requirement of the Rules in the course of proceedings would not vitiate the proceedings or any step taken or anything done in breach of the Rules, unless where such non-compliance has caused injustice to the adverse party.
The hearing of the application had concluded on 25-6-2007. What was left was for the Court to give its verdict on the application. It reserved for it for 6-7-2007. There is nothing to show or suggest that the failure to render the ruling on the 6-7-2007 and the delivery of the Ruling on 26-7-2007 prejudiced the appellants and the 2nd respondent in any way. As rightly held by the Court of Appeal, the appellants did not even allege so or make such a case. Since the hearing of the application had ended, all the parties having been heard and the matter having become due for ruling and even adjourned to another date for that purpose, it would amount to sterile or arid legalism and dysfunctional judicialism to strike down the ruling for the mere reason that it was delivered during the long vacation without complying with Rules 4 and 5 of Order 45 of the High Court of Lagos State (Civil Procedure) Rules. Order 5 Rule 1 (2) (Supra) gives the Court the discretion to condone such non-compliance, treat it as a mere irregularity and not allow it to nullify the process or step in question.
It is important to note that in addition to the fact that the non-compliance with Rules 4 and 5 of Order 45 (Supra) did not occasion any miscarriage of justice, it is not non-compliance with the requirement of commencement of the suit and did not affect the competence of the process or the jurisdiction given to the High Court by S. 272(1) of the Constitution of the Federal Republic of Nigeria 1999 to admit and hear the case.
There is no doubt that non-compliance with the requirement of the rules for the commencement of a suit may affect the competence of the suit and may rob the Court of Jurisdiction to entertain it. But in this case, this is not that kind of non-compliance with the rules. The non-compliance with the rules in this case is in the course of the proceeding after it has validly commenced. Order 5 Rule 1 (2) (Supra) has given the Court the discretion to condone this class of non-compliance with the rules, treat it as a mere irregularity and not allow it vitiate the relevant process except where the non-compliance has in the circumstances of the case occasioned a miscarriage of justice.

In the light of the foregoing, I resolve issue no. 1 in favour of the 1st respondent. Having struck out issues nos. 11 and 111 and since the trial of the merit suit would go on at the trial Court no useful purpose would be served determining issue no. IV raised for determination in the briefs of all the parties.

On the whole, this appeal fails as it lacks merit. It is accordingly hereby dismissed. The appellants shall pay costs of five million naira to the 1st respondent.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Emmanuel Akomaye Agim JSC and to underscore the support in the reasonings from which the decision emanated, I shall make some remarks.

This appeal is against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Ibrahim Mohammed Musa Saulawa JCA (as he then was), J.S. Ikyegh and R.N. Pemu JJCA, delivered on 1st March, 2013 dismissing the appeal of the appellants and affirming the decision of the trial High Court, Lagos per K.O. Alogho J. in his ruling of 26th July, 2007 refusing the application of the appellants.

The Appellants as the 1st and 2nd Defendants at the trial Court entered a conditional appearance to the suit of the 1st Respondent (Claimant at the trial Court) and filed an application dated 27th March, 2007 for stay of proceedings at the trial Court pending arbitration, pursuant to Sections 4 and 5 of the Arbitration and Conciliation Act, Cap A 18, Laws of the Federation 2004, in view of the arbitration clause in an agreement exhibited in the application before then lower Court as Exhibit TEW 1.

The 1st Respondent opposed the said application at the trial Court. The trial Court after hearing the arguments of counsel fixed the ruling on the application on the 6th of July, 2007, on which date the trial Court failed to deliver the said ruling. That ruling was eventually delivered on 26th July, 2007 which fell within the period of the Court’s Annual Recess.

In the said ruling, the trial Court dismissed the application for stay pending arbitration and refused to stay proceedings. The Appellant appealed the decision of the trial Court at the lower Court which appeal was dismissed by the aforementioned judgment of the lower Court and the Appellant has further appealed to this Court by a Notice of Appeal 14th March, 2013.

The fuller details leading to this appeal are better captured in the lead judgment and I shall not repeat them except circumstances warrant a reference to any party thereof.

At the hearing on 12/10/2021, learned counsel for the appellant, Chima Okereke Esq., adopted the brief of argument filed on 6/11/2015 and deemed filed on 9/11/2015 and a reply brief filed on 25/1/2021 and deemed filed on 26/1/2021. In the brief of argument, were distilled four issues for determination, viz:-
i. Whether the lower Court ought to set aside the ruling of the trial Court having found that the ruling was delivered during the annual vacation of the trial Court. Distilled from grounds 1 and 2 of the Notice of AppeaI.
ii. Whether the lower Court was right in holding that Chief Ladi Williams, SAN was not the alter ego and directing mind of the 1st Respondent and could not be held liable for the terms and conditions in Exhibit TEW1. Distilled from Grounds 3 and 4 of the Notice of Appeal.
iii. Whether the lower Court was right in holding that Exhibits TEW2, TEW4 and TEW5 were inadmissible. Distilled from ground 5.
iv. Whether the lower Court was right in refusing to stay the proceedings of the trial Court pending arbitration. Distilled from Ground 6.

P.D. Daudu, learned counsel for the 1st respondent adopted the brief of argument filed on 10/12/2015 in which he argued the Preliminary Objection which if not upheld, the Court should consider the arguments proferred and based on the issues formulated by the appellant.

Learned counsel for the 2nd respondent, O.E. Osubade Esq., filed no brief.

It needs no saying that the Preliminary Objection would be first dealt with before anything else as the jurisdiction of the Court is at stake since it rests on the competence of the appeal itself.

PRELIMINARY OBJECTION:
The basis of the objection of the 1st respondent/objector is, whether this Honourable Court has the jurisdiction to entertain this appeal where the appellant failed to obtain the leave of Court first before filing the Notice of Appeal consisting of facts and mixed law and facts.

Learned counsel for the objector contended that the grounds of appeal being of facts or mixed law and facts and leave of Court not sought and obtained, the appeal thereby lost competence and the jurisdiction of the Court consequently ousted. He cited Section 233 (2) and (3) of the 1999 Constitution (as amended). See Thor Limited v. FCMB (2002) MJSC vol.4 page 179 at 188 etc.

That where a ground of appeal is incompetent, any issue for determination based on such incompetent ground of appeal goes to no issue and should be struck out. He cited Thor Limited v. FCMB (2002) MJSC vol. 4 page 179 at 190.

That all the six grounds of appeal are incompetent and the result is the lack of jurisdiction of the Court.

Responding, learned counsel for the appellant stated that a careful perusal of grounds 1, 2, 3, 5 and 6 allege that the Court below misunderstood the law/and or misapplied the law to admitted or proved facts simplicita. He cited Dairo v. Union Bank and Ors (2007) LPELR – 913 (SC).

That ground 2 and 5 challenge the jurisdiction of the Court below to decide an issue which strictly is a ground of law. He cited Ekulo Farms Ltd v. Union Bank of Nigeria Plc (2006) 4 SC (pt. 11) p. 1.

Learned counsel for the appellants contended that ground 4 is of law since it complains the lower Court using the wrong criteria in misapprehending the case made. He cited Arowolo v. Adimula (1991) 8 NWLR (pt. 212) 753 at 763 – 764.

The grouse of the respondent/objectors is that the grounds of appeal are not of law but of mixed law and fact or of fact simply and so the right of appeal is only exercisable after the party aggrieved has first sought leave of either the Court below or the Apex Court. This is in line with Section 233 (2) and (3) of the 1999 Constitution (as amended). That Section is reproduced below thus:-
“233 (2) An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases:-
(a) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings before the Court of Appeal …
233(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal.”
I shall call in aid some decided cases as guide on the subject.
In the case of Thor Limited vs. FCMB (2002) MJSC Vol. 4 page 179 at page 188, the Supreme Court held as follows:-
“To further elucidate Section 213 (2) and (3) of the 1979 Constitution (now Section 233(2) and (3) of the 1999 Constitution), the section gives a party a right to appeal from the decision of the Court of Appeal to the Supreme Court in that by virtue of Subsection (2) thereof, a party who is aggrieved by the decision of the Court of Appeal has a right of appeal on grounds of appeal which are of law only. Where, however the ground or grounds of appeal are not of law alone but of mixed law and fact or fact simpliciter, the right of appeal from the Court of Appeal to the Supreme Court can only be exercised, where the party aggrieved has first sought, and obtained the leave of either the Court of Appeal of the Supreme Court.”

The mere christening of a ground of appeal as a ground of law does not necessarily make such a ground of Law. The ground may be examined to consider whether in fact, it is a ground of law or of fact or of mixed law and fact. In Ojemen v. Momodu (1983) 3 SC 173 at 211, the Supreme Court per Obaseki JSC held that:
“This Court will not be misled by the mere description of a ground of appeal as a ground complaining of error in law when in fact, the particulars show clearly that the complaint or the substance thereof is against the evaluation, assessment, weight of evidence, findings of fact or complaint or misdirection on the fact or the law.”
Also Oputa JSC in UBA v. GMBH (1989) 3NWLR (Pt.110) 374 at 410, State v. Ajayi (196) 2 NWLR (Pt.429) 203 at 212-214, went along a similar path.

On how a Court would determine whether grounds of appeal are grounds of law or facts and or of mixed law and facts, the Supreme Court in Faith Enterprises Limited v. BASF Nig. Limited (2001) 1 M.J.S.C (pt. 1) page 132 at 133 held thus:-
“The Court is required to examine thoroughly the grounds of appeal together with their particulars in order to see whether any of the grounds reveal a misunderstanding of the law by the lower Court or a misapplication of the law to the fact already proved or admitted, in which case it would be a question of law. Where however the grounds is such that would require questioning the evaluation of facts by the lower Court before the application of the law, which would amount to a question of mixed law and fact. A ground of appeal which raises facts which needed to be determined either way is a ground of fact. See Onifade v. Olayiwola (1990) 7 NWLR (161) 130, Olanrewaju v. Ogunleye (1997) 2 NWLR (pt. 485) 12 and Shanu v. Afribank (Nig) Plc 2 WRN 1 at 4; Obatoyin v. Ejidike (1996) 4 SCJ 249 …”
Where the ground of appeal complains against the construction of the rules of Court vis-a-vis the deposition of the parties, it is a ground of mixed law and fact as held in the Supreme Court case of Arowolo v. Adimula (1991) 8 NWLR (pt.212) 753 at Pp. 763-764 held thus:
“A ground of appeal will be construed as ground of fact or of mixed facts and law where:
(a) It is a complaint against a finding of fact
(b) The complaint is that the lower Court made no finding of fact on all the issues.
(c) The ground of appeal involves the construction of a rule of Court vis-a-vis the deposition of the parties” At pages 764-765.
The Court held further as follows:
Chief Wole Olanipekun in reply to the interlocutory appeal agreed with the appellants that the issue in the appeal are whether the lower Court could compel the defendants now respondents to be sued in a representative capacity, and whether the lower Court was right in refusing the application of the plaintiffs now appellants having regard to the provisions of Order 11 Rules 7(1) and 8 of the High Court (Civil Procedure) Rules, 1989… Ground 1: involves the construction of Order 5, Rule 11(1) and Order 11, Rule 7 and 8 of the Kwara State High Court Rules, and the depositions of the parties. It is therefore a ground of mixed law and facts, which is incompetent without prior leave of Court sought and obtained. See Obechie v. Onochie (1986) 2 NWLR (pt. 23) 484 at 491.”

In the case of Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503 at 516 SC, the Supreme Court, Per Oputa JSC while elaborating on the import of Section 213 of the 1979 Constitution which is impari materia with Section 233 of the 1999 Constitution (as amended) held that an appellant who appeals on grounds of facts or of mixed law and fact without leave, his purported appeal is incompetent, a nudum factum; Coram non-judice and a nullity. The ‘papers’ are worthless and quite ineffective to constitute a valid and competent appeal and as such no appeal is yet pending before the Supreme Court and the Court lacks jurisdiction as shown by the jurist thus:
“This is because Section 213 of the 1999 Constitution gave an appellant two rights namely: 1. A right of appeal as of right; and 2. A right of appeal with leave.”
When an appellant is appealing on a point of law, that is to say, when his grounds of appeal are grounds of pure law he appeals as of right, see Section 233 (3) of the 1999 Constitution. But when he appeals on grounds of facts or of mixed law and fact his purported appeal is incompetent, a nudum factum, without the requisite leave. Therefore, to decide whether there is a proper appeal pending before the Supreme Court by virtue of Section 233 supra, one has to go beyond the papers titled “Notice of Appeal” and carefully examine all the grounds supporting and animating that Notice of Appeal. If none of the grounds is a ground of law and if in addition no prior leave has been obtained pursuant to Section 233(3) of the 1999 Constitution, then no appeal is yet pending before the Supreme Court. Papers titled Notice and Grounds of Appeal had been filed yes indeed, but those papers are worthless and quite ineffective to constitute a valid and competent appeal. The papers titled “Notice of Appeal” and “Grounds of Appeal” were coram non-judice and a nullity and the Court of Appeal would be perfectly justified in the exercise of its inherent jurisdiction not to overlook those invalid “Notice” and “Grounds” as constituting an appeal to the Supreme Court which should have deprived it of further jurisdiction in the matter. See Lazard Brothers & Co. v. Midland Bank Ltd (1933) A.C. 289. If Notice and Grounds of Appeal are not in conformity with the requirements of the Constitution and of the law they must be treated as void ab initio. Macfoy v. United Africa Company Ltd (1961) 3 WLR 1405, (1963) 3 All E.R 1169; (1962) AIC 152 refers.

See Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16 at E-F. I accordingly have no hesitation in striking out the two issues for determination identified and argued in the Defendant’s brief as incompetent. The two grounds of appeal and issues for determination being incompetent, the appeal itself is incompetent.”

Taking those principles above referred to what is before the Court, I shall quote the said grounds of appeal and particulars for a comprehensive overview thus:-
GROUND 1
The learned Justices of the Court of Appeal erred in law, when having found that the ruling of the lower Court was delivered in breach of Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 failed to set aside the ruling as not having been completely delivered and therefore invalid.
PARTICULARS
1. The learned Judge had found that the ruling was delivered in breach of the provisions of Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rule 2004.
2. Having so found the Court of Appeal was obliged to hold that a fundamental condition precedent to the competence of the trial Court to sit and deliver the said ruling during the High Court’s long vacation under Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 was not fulfilled or complied with.
3. The delivery of the ruling of the Court constituted a proceeding of Court.
4. The proceeding of the day including the ruling delivered was a nullity and ought to have been set aside
5. The ruling was not valid and ought to have been set aside.
GROUND 2:
The learned Justices of the Court of Appeal erred in law when they held as follows:
“…I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, its rather obvious that on the 26/07/2007 in question, all that the lower Court did was simply to read out and deliver the ruling, No issue was raised by the lower Court, suo motu that would have entitled the parties to the right of fair hearing (to re-address the Court) prior to the delivery of the ruling. Secondly, it was not the case of the Appellant that the delivery of the ruling has in any way resulted in a miscarriage of justice thereto, or any party for that matter. See Obodo v. Olomu (1987) 3 NWLR (pt 59) 111, Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234, Veritas Ins. Co. Ltd v. Trust Inv, Ltd (1993) 3 NWLR (281) 249.”
PARTICULARS
1. In so holding, the Court failed to appropriate the Appellant’s point that the Court lacked jurisdiction to hold any proceedings on the date it delivered the ruling.
2. The consequence of lack of jurisdiction is that the proceedings are a nullity no matter what.
3. The Court of Appeal failed to apply and be bound by the authoritative decision of the Supreme Court in Itaye & Ors v. Ekaidere (1978) 11 NSCC 485 that any such proceeding amounted to a nullity.
4. The reliance by the Court of Appeal on the Court of Appeal case of Veritas Ins. Co. Ltd. V. Citi Trust Inv. Ltd (1993) 3 NWLR (281) 249 is unsupportable in the fact of the aforesaid superior decision of the Supreme Court.
GROUND 3:
The learned Justices of the Court of Appeal erred in law in affirming the decision of the trial Judge that Chief Ladi Williams was not the alter ego and directing mind of the 1st respondent and was therefore the actual Claimant/ 1st respondent.
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PARTICULARS
1. By so holding, the learned Justices failed to appreciate the settled legal principle that an alter ego is the directing mind and will of a corporation whose acts bind the company.
2. Admittedly, Chief Ladi Williams SAN in Exhibit TEW2 consistently referred to the 1st Respondent as “my Company” and “my balance” and thus held himself out as the company’s alter ego.
3. The Court has found that the 1st Respondent was Chief Ladi Williams’ company.
4. Having so found it was obliged to lift the veil of incorporation and regard the IS t Respondent as Chief Ladi Williams.
5. The learned Justices ought properly to have held that the 1st Respondent is actually Chief Ladi Williams using an artificial veil of incorporation.
GROUND 4
The learned Justices of the Court of Appeal erred in law when they upheld the finding of the trial Court to the effect that “the 1st Respondent was not mentioned in the exhibit and could not be liable for the terms and conditions inherent in Exhibit TEW2”.
PARTICULARS
In so holding, the Court showed a misapprehension of the whole tenor and substance of the Appellant’s argument.
1. The gravamen of the Appellant’s submission is that the 1st Respondent is actually Chief Ladi Williams and this makes the actual naming of the 1st Respondent unnecessary and irrelevant.
2. That being so, the 1st Respondent was thus liable for the terms and conditions inherent in Exhibit TEW2.
GROUND 5:
The learned Justices of the Court of Appeal erred in law when they held that:
“…the said Exhibit TEW2, TEW3, TEW4 & TEW5, owing to the obvious facts that they were written during the course of the bona fide attempt to settle the matter between Chief Ladi Williams, SAN and the Appellants, they are:
PARTICULARS
1. There was no appeal by the 1st Respondent against the learned trial Judge’s decision sub silentio that the said documents were not admissible.
2. The Court of Appeal had no jurisdiction to entertain the point about the admissibility of the documents let alone determine that were not admissible.
3. Also, by so doing the Justices of the Court of Appeal misconstrued and misapplied the provisions of Section 25 of the Evidence act which is clearly not applicable to this case.
4. The Justices of the Court of Appeal wholly misapplied the decision of the Court in the case of Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt 105) at 558 whose facts are clearly distinguishable from the instant case.
“GROUND 6:
The learned justices of the Court of Appeal erred in law in refusing to stay proceedings in this matter and refer parties to arbitration as they have contracted in Exhibit TEW1.
PARTICULARS
1. By so doing, the learned Justices of the Court of Appeal erred in law when they failed to give effect to the decision of this Honourable Court in the case of MV Lupex v, N.O.C & S Ltd (2003) 15 NWLR(Pt. 844) 469 at 488 which is to the effect that “where parties have chosen to determine for themselves that they would refer their dispute to arbitration instead of resorting to regular Courts, a prima facie duty is cast upon the Courts to act upon their argument”.
2. It was an admitted fact there is an arbitration clause in the agreement entered into by the parties, contained in Exhibit TEW1.
3. The 1st Respondent was clearly Chief Ladi Williams and was bound by the terms of Exhibit TEW1.
4. It was an admitted fact upon service originating processes on the Appellants; the Appellants without taking any steps brought an application praying the lower Court to stay proceedings pending arbitration.
5 The learned Justices of the Court of Appeal stayed proceedings and referred the matter to arbitration.

The appellant had labeled ground 1 as a ground of law, an examination of it and the particulars involves the construction of a rule of Court being Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004. This is a ground of law. See Arowolo v Adinmula (1991) 8 NWLR (pt. 212) 753 at 763 – 764.
Grounds 3, 4, and 5 with their particulars question the evaluation of facts being Exhibits TEW1, TEW2, TEW3, TEW4 and TEW5 by the lower Court before the application of the law which amounts to a question of mixed law and fact as illustrated in the case of Faith Enterprises Limited v. BASF Nig. Limited (supra)
Grounds 6 with its particulars questions the exercise of discretion by the lower Court in refusing to stay proceedings after the evaluation of the agreement being Exhibit TEW1. This borders on mixed law and fact as held in First Bank Plc v. TSA Industries Ltd (supra) and Ogbechie v. Onochie (supra). Therefore, the Appellant’s Notice of Appeal with the 6 Grounds of Appeal are incompetent for failure to obtain leave and based on the case of Erisi v. Idika (supra), they contravene Section 233 of the 1999 Constitution (as amended) and as such incompetent, and a nullity. The Notice of Appeal and its 6 grounds are worthless and quite ineffective to constitute a valid and competent appeal and as such no constitutionally valid appeal is pending before the Supreme Court and consequently there will be no invocation of its jurisdiction. Also all the issues for determination being issues I, II, III, IV and V based on such incompetent grounds are incompetent as illustrated by the Supreme Court in First Bank Plc v. TSA Industries Ltd (supra)
The grounds 3, 4 and 6 are clearly grounds of mixed law and facts or even of facts and needed of necessity leave before the appeal can be said to be valid.
However, the same cannot be said of grounds 1, 2, and 5 which challenge the jurisdiction of the lower Court to decide on the issue and so are strictly grounds of law and so leave needs not be sought and obtain for the competence of those grounds. I refer to Ekulo Farms Ltd v. Union Bank of Nigeria Plc (2006) 4 SC (pt. 11) 1.

In my humble view, since there are grounds contesting the jurisdiction of Court which are of law alone, the appeal can survive on those grounds hence the Preliminary Objection is partly upheld and the appeal competent on account of the three grounds challenging jurisdiction.

ISSUES 1 AND 3
1. Whether the lower Court ought to set aside the ruling of the trial Court having found that the ruling not delivered during the annual vacation of the trial Court.
2. Whether the lower Court was right in holding that Exhibits TEW2, TEW4 and TEW5 were inadmissible.
It was contended for the appellant that the lower Court erred in holding that the decision of the trial Court was not a nullity having been delivered without jurisdiction on account of the vacation of the trial Court. He cited Order 45 Rule 4(d) of the High Court of Lagos (Civil Procedure) Rules, Itaye & 7 Ors v. Ekaidere (1978) 11 NSCC 485 at 491 etc.

He further submitted that the Court below erred in affirming the decision of the trial Court that Chief Ladi Williams SAN was not the alter ago and directing mind of the 1st respondent and that 1st respondent could not be held liable for the terms and conditions in Exhibit TEW1.

That the lower Court was wrong when it held that Exhibits TEW2, TEW4 and TEW5 are not admissible since there was no appeal concerning the admissibility of those documents.

For the appellant, it was submitted that the Exhibits TEW2, TEW4 and TEW5 are admissible because they were pleaded and relevant to the determination of the matter in disputes. He cited NITEL PLC v. Ayu (2008) All FWLR (pt. 411) 904 at 918.

Learned counsel for the respondent contended that the combined effect of Order 1 Rule 1 (2) and Order 5 Rule 1(2) of the Lagos State High Court Rules did not operate to invalidate the ruling delivered during the annual vacation. He cited Veritas vs Citi Trust Ltd (1993) 3 NWLR (pt. 281) 349 at 369 etc.

He contended that Exhibits TEW2, TEW4 and TEW5 are letters exchanged between the parties in the course of seeking amicable settlement of the matter before going to litigation and are precluded from disclosure and therefore inadmissible. He cited Section 25 of the Evidence Act, Fawehinmi v Nigeria Bar Association (No.2) (1989) 2 NWLR (pt.105) 358 at 622 and 633 etc.

The appellants are asking this Court to set aside the ruling of the Court of Appeal for failing to set aside the decision of the trial Court determined on 26th July, 2007 during the trial Court’s annual vacation without complying with Order 45 Rule 5(1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 2004.
Indeed, the fact is not in dispute that the ruling of the trial High Court was rendered during the Court’s annual vacation. The question naturally thrown up is, what injustice did the appellants suffer by the delivery of the judgment during the vacation period? The follow up poser is what is the essence of judgment in relation to the role or roles of the parties in the judgment delivery process. The answers seem to me in the negative and so the proposed invalidation of the decision rendered during the vacation would remain a still-birth. See Veritas Investment Co. Ltd. v. Citi Trust Invest. Ltd (1993) 3 NWLR (pt. 281) 349 at 369.
Again, the relevant rule of Court lends its weight to the postulation above stated when our Courts are called upon to indulge in slavish adherence to judicial precedence i.e. case law. There is no controversy that the said ruling was delivered on the 26th day of July, 2007 which said date fell within the Court’s Annual Vacation. However, the big question one is compelled to ask following the reasoning of Tobi JCA (as he then was) in Veritas Investment Co. Ltd vs. Citi Trust Invest Ltd (1993) 3 NWLR (pt. 281) 349 @ 369 paragraph H is thus:
“What injustice did the Appellant suffer by the delivery of the Judgment during the vacation period? To be precise, what injustice did the Appellant suffer by the delivery of the judgment on 29th December, 1987, instead of on the 2nd January, 1988? What is the essence of judgment vis-a-vis the role or roles of the parties in the judgment delivery process?”
I refer to Order 1 Rule 1 (2) and Order 5 Rule 1(2) respectively of the High Court of Lagos State (Civil Procedure) Rules, 2004:
Order 1 Rule 1 (2)
“Application of these rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.”
Order 5 Rule 1(2):-
“where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, as to time, place, manner, or form, the failure shall be treated as an irregularities and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps.”
The combined effect of Order 1 Rule 1(2) and Order 5 Rule 1(2) (supra) clearly covers instances such as the conditions provided for in Order 45 Rule 5(1) and (2) (supra). Thus, the non-compliance complained about should not in any way be seen to operate as an invalidating factor as to nullify the ruling delivered during vacation.
The condition precedent provided under Order 45 Rule 5(1) and (2) (supra), is in the purview of a failure to comply with the requirements as to time, place, manner, or form, which said failure in accordance with Order 5 Rule 1(2) may in the discretion of the Judge be treated as an irregularity and may not nullify such a proceeding.
The Court of Appeal in Sanni vs. Agara (2010) 22 NWLR (Pt. 1178) 371 @ 400-401 while construing Order 4 Rule 1(1) of the Plateau State High Court (Civil Procedure) Rules which is impari materia with Order 5 Rule 1(2) (supra) held thus:-
Order 4 Rule 1 Sub-rule (1) of the Lower Court Rule provides that:-
“Where in beginning or purporting to begin any proceedings, or any stage in the course of or in connection with the any proceedings, there has by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or Order therein ”
The above is a saving grace in the rules and it is to ensure that matters are not for some non-compliance struck out but should be treated as a mere irregularity which can be cured.
It has to be restated that rules of Court are meant for Courts and not Courts for rules. Thus rules cannot be the master of the Courts. This was the position of Tobi JCA (as he then was) in Veritas vs. Citi Trust Investment Ltd (supra) @ page 369 thus:

“Although rules of the Court are meant to regulate the conduct of a case, they cannot be masters of the Court. It is the contrary and it is the Court that is the master of its own rules. And no servant is bigger that its masters.
The function of the Court is to use the armoury of its rules to do justice in the matter. The armoury, for a change, cannot this time around be weapons for war but for justice through peace and to the egalitarian advantage of the parties. Once rules become an affront and hurdle to or wedge against justice, the Court is entitled to meander its way through the rules in search of justice. Once rules involve themselves in direct confrontation with justice, once rules directly antagonize the well settled principles of justice, the rules must invariably succumb and give way to justice par excellence.
The Court is not entitled to stand on and legalism by doing ‘justice’ to the rules and injustice to the matter before it. By that approach, the Court has done ‘justice’ in inverted commas. The Court has reverse justice and has done injustice.
While a Court of law should follow its own rules, let it take the earliest opportunity to receive its steps when it is in the interest of justice to do so. It should not allow itself to fall headlong into a ditch in the course of following its rules. Litigants will not be happy. The Courts themselves will not be happy too.”
The appellants have not established the injustice or lack of fairness meted out to them when the judgment was delivered during the vacation nor have they shown the link between the judgment delivered to their opportunity to properly present there case. For a fact, there is no linkage between the two as by the time of judgment delivered, all that the parties could put forward are foreclosed and there being no room legally to put a hold on a judgment to be delivered, the processes available to parties are deemed to have come to an end.
There is therefore a need to distinguish the authority of Itaye v. Ekaidere(supra) within the peculiar facts and circumstances of the matter at hand. In Itaye vs. Ekaidere (supra), Obaseki JSC gave a summary of the facts as follows at page 259 thus:-
“…The learned trial Judge ordered hearing to continue and adjourned the case to August 12, 1975 for hearing from day to day until hearing is completed.
The Court did not sit on 12th day of August, 1975. The case was placed on the cause list for the 14th day of August, 1975. Again the Court did not sit on August 14, 1975 but early on that day Mr. A.O. Akpedeye addresses and caused to be delivered a letter to the Senior Registrar of the High Court imploring the Senior Registrar to bring to the notice of the learned trial Judge the contents of the said letter which in essence was an application for adjournment to a suitable date in September, 1975 after the Court Annual Vacation, on the ground that he was indisposed suffering from malaria fever and has been advised by his doctor to rest for 14 days.
The contents of this letter were brought to the attention of the learned trial Judge and on the 15th day of August, 1975, the Court sat, considered and refused the application and instructed the Senior Registrar to communicate his refusal to him.
This, the Senior Registrar did. The Plaintiffs and their Counsel were present in Court. The 1st to 5th Defendants were also present in Court but the 6th, 7th and 8th Defendants together with Defendants’ Counsel were absent.
The Court heard and took the evidence of the 5th Plaintiff and the 3rd Plaintiff. They testified in Chief and each of the 5 Defendants present on being asked to cross the witnesses, stated that he had nothing to ask as his lawyers was absent.
Counsel for the Plaintiff then closed the case for the Plaintiff. The Court thereafter called the Defendants for their defence.
On being asked for their defence, the 1st, 2nd, 3rd, 4th and 5th Defendants and proceeded to write and deliver his judgment in favour of the Plaintiffs.
Therefore, it is apparent that the Court proceeded to take evidence on behalf of the Plaintiffs without affording the Defendants the opportunity of presenting their own case. The absurd procedure adopted by the learned trial Judge even becomes pronounced where he refused the application of Counsel to the Defendant, Mr. A.O. Akpedeye to have the matter adjourned after the Court’s Annual Vacation.
There is no doubt that from the facts stated above, great injustice was meted out to the Defendants by the hearing of the matter during the Court’s Annual Vacation and the subsequent judgment without the consent and indeed against the consent of the Defendants and their Counsel.
However, in the present appeal, the lower Court, per Alogba J., after hearing arguments of counsel on both sides fixed the ruling on the application on the 6th of July, 2007. The Court failed to sit on the 6th day of July, 2007 and the ruling was subsequently delivered on the 26th day of July, 2007 which fell within the period of the Court’s Annual Vacation.
For full clarification, I shall go into the record the 1st Respondent’s counsel took steps to notify the Appellants of the date fixed for the ruling vide letter dated 23rd July, 2007. I refer to page 116 and 117 of the records and records of proceedings of 26th July, 2007 at page 121 of the records where F.R.A Williams (Miss) informed the Court thus “we notified our colleagues on the other side and filed Affidavit of Service dated 26/07/2007”. This was captured in the trial Court’s ruling 3rd day of April, 2008 seen at pages 144 – 150 of the Supplementary Record of Appeal filed on the 8th November, 2011 particularly at pages 146, 147, 149 and 150 on issue of delivering Ruling during vacation:
“The facts leading to this application are not in dispute.

Upon moving the motion brought by the Defendants to stay proceedings in this matter pending reference of the matter to arbitration, on 25th June, 2007, ruling was reserved till 6th July, 2007.
The Court due to pressure of work could not deliver the ruling on that day as it did not also sit on that day, ruling was further adjourned to 19th July, 2007, which date was also caught up by the subsequent declaration of the Long Vacation beginning from 16th July, 2007, and so the Court did not sit.
I thereafter assigned the 27th July, 2007 for delivery of the ruling, with a directive to notify Counsel in the matter.
The Registrar informed Claimant’s counsel Miss F.R.A Williams who was first seen and enjoined her to notify other counsel.
There is no doubt that Miss. FRA Williams communicated the next adjourned date 26th July, 2007 for delivery of the Ruling to the counsel to all the Defendants. Those are the letters Exhibits RO1 & 2 annexed to the Counter-affidavit of the Claimant/Respondent to this application.
Come 26th July, 2007, and after being notified by learned counsel Miss F.R.A Williams and also seeing the affidavit of service dated 26th July, 2007 in the Court’s record, this Court being satisfied that the defence had been duly notified of that date, proceeded and delivered the ruling.
The ruling is to the effect that the Claimant was not party to the agreement containing the Arbitration Clause upon which premise and pursuant to which the Defendants have sought a stay of proceedings in this case pending arbitration by the parties …
In these days when every stakeholder in the litigation process yearn for speedier dispensation of justice, it is bemusing that counsel would complain that a Court had tried to do so, on the flimsy excuse that that was during vacation period.
The Defendants/Applicant’s counsel has not denied that the letter which the Court directed to be written to notify them of the upcoming date of ruling was served on and acknowledged in their chambers.
Those are exhibits – RD … Duly acknowledge,.
They have not denied that that letter came to the notice of Counsel, or in the alternative have they sworn that when the letter came in, counsel was not available.
It was only during argument that Defendant counsel tried to suggest so, but it is trite that Counsel’s argument cannot take the place of evidence.
However, assuming that when the letter was served on their chambers that their counsel was not available or the date was not convenient being during vacation, did it not behove the counsel or chambers to write back to the Court indicating such non-availability of counsel or inconvenience of the date so notified for the ruling.
That letter of notification was received and simply ignored, and being dissatisfied with the ruling really for refusal to send the case to arbitration, the issue that the Ruling was read during vacation is now being raked up as a ground that the entire proceedings on the date the Ruling was delivered is null.
I do not think it is ethical for any counsel who is served notice that a matter would come up in Court, whether or not during vacation period, to just ignore the notice, refuse to come to Court, and thereafter contend that not having received a FORMAL HEARING NOTICE or COURT ORDER, the sitting of such previously notified date was incompetent
That is a blatant disrespect to the Court, I do not think the rules of Court will aid such disrespectful conduct on the part of any party or counsel, worse still when Defendant’s counsel in the course of her argument stated that though the letter was received she did not believe claimant’s counsel.
That is no kind of courtesy to extend to a professional colleague either…”
I adopt the decision of Tobi JCA in Veritas vs. Citi Trust Ltd (supra) as follows at page 370:
“While a mere withholding of a right of a person may be injustice in general parlance, in my view, in law, a mere withholding of a right which is dormant cannot amount to an injustice, And here it is my view that the right to be present during the delivery of judgment is nothing more than a dormant right, in the sense that beyond listening to the judgment, no other consequential right accrues to the party. After all, either of the parties is constitutionally entitled to a copy of the judgment after delivery.
The long and short of it is this Court cannot find its way clear in allowing the appeal or that ground.”
I would state without hesitation that each case must be confined to and treated or dealt with in the context of the unique facts of its given circumstance. Otherwise, there would be confusion and misconceptions where there should be none. See Group Danone v. Voltic (Nig.) Ltd (2008) NWLR (pt.1087) 637 per Ogbuagu JSC at 678.
To be brought into the mix is to state that there is no iota of a miscarriage of justice in view in the fact of the judgment delivery during the vacation.
I refer to the case of Larmie vs. DPMS Ltd (2005) 12 SC (Pt.1) 93 per Onnoghen JSC @ 106 – 107 respectively thus.-
“…The terms “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the Defendant.”
It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the Court, after examination of the entire case including the evidence is of the opinion that it is reasonably probable that a result more favourable to the Appellant would have been reached in the absence of the error. A miscarriage of justice therefore means such a departure from the rule which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all. SeeNnajiofor vs. Ukonu(1986) 4 NWLR (Pt. 36) 505. I find no miscarriage of justice in the instant case which should enable the Court to interfere.
I also refer the Court to decision of the Supreme Court Per Ogbuagu JSC in Sule vs. The State (2009) 6 7 SC (pt. 111) 28 @ 56 thus:-
“But the law is settled that the error or mistake by a trial judge or Court will not lead to the nullification of the entire proceedings or necessarily determine an appeal in favour of an Appellant or automatically, result in the appeal being allowed. It is only when the error is so substantial, that it has occasioned a miscarriage of justice that an Appellate Court will interfere. There are too many decided authorities in this regard. See the case of Gwonto vs. The State (1983) 1 SCNLR 142 and Odukwe vs. Mrs. Ogunbiyi (1998) 6 SC 72; (1998) 8 NWLR 339 at 351; (1998) 6 SCNJ 102 at 113, just to mention but a few.”
In the case of Ososami v. Police (1952) 14 WACA 24, the Court deemed it appropriate to dismiss the appeal which mainly complained that the trial Court sat on a public holiday. It was held that the trial Court heard the case on the public holiday at the request and in the interest of the accused person and that the sitting by the trial Court was neither prejudicial to the defence, nor caused a miscarriage of justice.
It is important to note that the Appellants have not shown by credible evidence or any other form of evidence that the non-compliance with Order 45 Rule 5(1) and (2) (supra) is a determinant factor which weighed on the mind of the lower Court to reach its decision. Stated differently, appellants have not said if the judgment was delivered during the normal Court sitting not within the annual vacation, that the decision would have been different, that is in their favour hence the appellants failed to show the miscarriage of justice meted out on them. What the Court below said on the point shall be restated below:
“Nonetheless, contrary to the Appellant counsel’s submission, the mere fact that the delivery of the vexed ruling during the vacation period is in breach of/or contrary to the express provisions of Order 45 Rule 4(d) of the High Court of Lagos (Civil Procedure) Rules (supra), notwithstanding, I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, it’s rather obvious, that on the 26/07/2007 in question, all that the lower Court did was simply to read out and deliver the ruling. No issue was raised by the lower Court, suo motu, that would have entitled the parties to the right of fair hearing (to re-address the Court) prior to the delivery of the ruling. Secondly, it was not the case of the Appellant that the delivering of the ruling has in any way resulted in a miscarriage of justice thereto, or any party for that matter. See Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111, Esiegbe v. Agholor (1990) 7 NWLR (pt. 161) 234, Veritas Investment Co. Ltd vs. Citi Trust Invest Ltd (1993) 3 NWLR (Pt. 281) 349.”
It is glaring that the Court below captured the full essence of the matter properly before them and reached a sound decision which cannot be faulted.

There is nothing outside what the Court below did to say on the fact that Exhibits TEW2, TEW4 and TEW5 which are letters exchanged between the parties in the course of trying to achieve settlement of this matter before going to litigation are privileged from disclosure and inadmissible. It is the policy of the law that disputes should be amicably settled where possible, and it would be unwise for parties to enter into negotiations if statements made during such negotiations were admissible in evidence at trial in the event that the attempt to settle was not successful.
Where such a negotiation is by letter, the words “without prejudice” protects subsequent and even previous correspondence and admissions made during “a bona fide attempt to settle a dispute”. As such any correspondence made along the line of “bona fide” settlement of a dispute, even if not expressly marked so is inadmissible. Section 25 of the Evidence Act states as follows:-
“In civil cases, no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.”

That position was reiterated by this Court in the case of Fawehinmi vs. Nigerian Bar Association (No.2) (1989) 2 NWLR (Pt.105) 358 at 622 and 633 where the Apex Court per Agbaje J.S.C alluded to Section 22 of the Evidence Act at page 622 thus:-
“The Section grants privilege from disclosure to Court any admission made upon express condition, that evidence of it is not to be given or in circumstances from which the Court can infer that the parties agreed together that evidence of it should be given. There is no question here of the admissions in question being made upon express conditions that evidence of it is not to be given for there was no such conditions. It remains therefore to see having regard to the circumstances surrounding the making of the administrations whether the Court can infer that the parties agreed that evidence of it should not be given.”
His Lordship went further to hold inter-alia:-
“Happily, we are not without precedents to guide us in the matter. As regards this point Phipson on Evidence 294, paragraph 679 says: Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions, the law, on grounds of public policy, protecting negotiations bona fide entered into for the settlement of disputes.
The rationale of the doctrine is a complex of factors. The policy of the law is to encourage settlement; it is thought to be “unfair” that advantage should be taken of one party to negotiate, and some cases discover an express or implied contract between the parties that without prejudice communications should not be disclosed…
It is probable that the modern rule extends to all third parties who act as mediators with a view to enabling the parties to reach a settlement or compromise, whether or not that third party is a legal representative.
“Without prejudice” protects subsequent, and even previous letters in the same correspondence, and an admission made during a bona fide attempt to settle a dispute has been excluded even when not expressly made without prejudice. See also SCOTTS PAPER CO. VS DRA YT0N PAPER WORKS 44 PPC 15, 529.”
In Fawehinmi vs. Nigerian Bar Association (No.2) (supra), the Supreme Court found that the admissions relied upon by the Plaintiff were evidently made during a bona fide attempt to settle a dispute. However, the admissions in question were not expressly made “without prejudice”. The Supreme Court on that held thus:-
“Because of the rationale behind the principle, I am now considering namely the policy of the law to encourage settlement, it only stands to reason that this legal principle of privilege should extend to statements made by mediators in the course of their attempt to settle a dispute. Otherwise, the legal repercussions to them of such statements will deter peacemakers or mediators from attempting to settle a dispute out of Court. So I am satisfied that the case of SCOTTS PAPER CO, VS DRAYTON PAPER WORKS (SUPRA) is in point here.”
It is not difficult to follow the case of Owonyin vs. Omotosho (1961) ANLR 304; 2 SCNLR 57 where the Court held as follows:-
“It is now trite law that a trial Court must reject any inadmissible evidence and decide the case on legal evidence.”

In the case at hand, it has been established by the Affidavit evidence of Mr. Adeleke Dina that: “Chief Ladi Williams, SAN, solely on his own unauthorized initiative made efforts to settle the matter out of Court unsuccessfully”. This is understandable because the Appellants are brothers of Chief Ladi Williams, SAN, and he was trying to avert the very situation that has now developed namely, being put in the uncomfortable situation of the 1st Respondent in which he is a Director, taking his own brothers to Court and the resulting ignominy that would be associated with the Late Chief F.R.A Williams, CFR, SAN, and his family of being associated with two Lawyers who are ultimately being sued in an action for what represents misappropriation or embezzlement of client’s money contrary to the provisions of the Legal Practitioners Act and the Rules of Professional Conduct.

Chief Ladi Williams, SAN, took every step to avert the current situation by enlisting the aid of eminent Nigerians to mediate, Indeed the list of eminent Nigerians called upon to mediate in the matter is evidence by Exhibits TEW4 and TEW5 are impressive, men of standing and great note in Nigeria and men like Chief Koye Majekodunmi, the Honourable Justice Kayode Eso (Rtd), Chief Ernest Shonekan and a personal appeal to his Uncle, Mr. Akinola Williams. It appears the issue would be resolved amicably and Chief Ladi Williams, SAN, was able to persuade the Board of Directors of 1st Respondent to withdraw Suit No. ID/1093/2006 in anticipation of receiving the judgment sum from the Appellants.

Sadly, the matter was not resolved amicably and a writ of Summons instituting the action was filed in 2007.

Chief Ladi Williams, SAN, is a Director of 1st Respondent and as a Director, he must act in the best interest of the company. Accordingly, the Board’s resolution, Exhibit AD (at page 100 of the Records) was passed which clearly shows the company was ready to institute legal action to recover its money. This money is the judgment sum in Exhibit RT/2 received pursuant to the Drawn-Up Order of the Supreme Court in SC/19/200 dated 24th January, 2005, and see also Exhibits RT/3, RT/3A and RT/4 (See pages 81 to 84 of the Records) where the Defendants categorically described the source of the funds as the judgment sum standing to the credit of the claimant.

Exhibits TEW2, TEW4 and TEW4 are letters exchanged between Chief Ladi Williams, SAN, and the Appellants to reach settlement between 1st Respondent and the Appellants.
It is my humble view that because these letters were written during the course of the bona fide attempt at negotiations to settle the matter between Chief Ladi Williams, SAN and the Appellants, these letters are inadmissible.

Clearly Exhibits TEW2, TEW4 and TEW5 are inadmissible.

The inadmissibility of those documents are without question and there being no redeeming feature afloat, I hold that the Court below was right in the stand it took in that respect.

The two issues resolved against the appellants, and in favour of the respondents, I see no peg on which this appeal can stand as it is without merits I too dismiss the appeal and abide by the consequential orders made.
Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, EMMANUEL AKOMAYE AGIM, DSC, just delivered.

I agree entirely with the reasoning and conclusion that the appeal is devoid of merit.

The appellants have made heavy weather of the fact that the ruling appealed against was delivered during the Court’s annual vacation, contrary to the provisions of Order 45 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004, which were applicable at the time. They rely on the decision of this Court in Itaye Vs Ekaidere (1978) 11 NSCC 485 @ 491 paras 10-25 for the proposition that the proceedings of 26th July, 2007, were conducted without jurisdiction and therefore a nullity.
It is pertinent to note that the case was decided in 1978 when technicalities were often allowed to trump substantial justice. This Court had since moved away from that approach and leans on the side of substantial justice. See Odu’a Investment Co. Ltd. Vs Talabi (1997) 10 NWLR (Pt.523) 1, Famfa Oil Ltd vs A.G. Federation & Anor (2003) LPELR – 1239 (SC) @ 20 – 21 F- C and Amaechi Vs INEC (2008) LPELR-446 (SC) @ 67 – 68 D- E.
The delivery of the ruling during the Court’s annual vacation, in my considered view is at best, an irregularity, which cannot vitiate the proceedings. Order 5 Rule 1 (2) provides that failure to comply with the rules as to time place, manner or form, shall be treated as an irregularity and may not nullify such steps taken in the proceedings. I agree with learned counsel for the 1st respondent, relying on the dictum of Tobi, JCA (as he then was) in Veritas Vs Citi Trust Investment Ltd. (1993) 3 NWLR (Pt.281) 349 @ 369 to the effect that the appellants have not shown that they suffered any injustice by the delivery of the ruling during the Court’s annual vacation.

Furthermore, the Court must be alive to its Constitutional responsibility to deliver its decision in writing not later than ninety days after the conclusion of final addresses, as required by Section 294 of the 1999 Constitution, as amended. There is no merit whatsoever in the submission of the appellants in this regard.

I also dismiss the appeal and abide by the order on costs

EJEMBI EKO, J.S.C.: On 26th September, 2007, the High Court of Lagos State (the trial Court) in its ruling, on the application of the Appellants seeking it (as the trial Court) to lift the veil of incorporation of the company in which Chief Ladi Williams, SAN was one of the shareholders and Directors, refused the application. The Appellants sought to lift the veil on account of the negotiations undertaken by Chief Ladi Williams, SAN in a matter of a dispute between the Appellants and the Company in which Chief Ladi Williams, SAN had interest in as a shareholder and a director. The company was not a party to the agreement containing therein the arbitration clause.

The Appellants, as the applicants, had invoked the arbitration clause in the said agreement and had requested the trial Court to stay proceedings to enable the arbitration take place. They seemed to have sought to enforce a contract they were not parties to. Upon refusing to order stay of proceedings and also refusing to unveil the mask of incorporation to enable them put in evidence against the company (the 1st Respondent herein) the written communications made by Chief Ladi Williams, SAN in the course of the negotiations with his brothers, the trial Court dismissed the interlocutory application on 26th September, 2007. The substantive suit has been languishing at the trial Court since 2007. The Appellants appealed the dismissal of their application to the Court of Appeal (the lower Court), which on 1st March, 2013, dismissed the interlocutory appeal. The Appellants on 14th March, 2013, further appealed the lower Court’s decision to this Court as of right. The main relief, in this apparently interlocutory appeal, is “an order staying proceedings in this suit and referring the matter to arbitration”. The Notice of Appeal at pages 287 – 292 of the Record of Appeal has six grounds of appeal. It was settled by Miss Oremiyi Amune of counsel in the law firm of Kola Awodein & Co., for and on behalf of the Appellants.

In my firm view, the Appellants could not appeal as of right on the six (6) grounds of appeal. The grounds of appeal are either clearly of pure facts or mixed law and fact on which, by dint of Section 233(3) of the 1999 Constitution, as amended, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.

Ground 1 raises issue of mixed law and fact. It complains that the lower Court erred in law, having found as a fact that the ruling appealed was delivered during the trial Court’s long vacation, it failed to come to conclusion that the ruling appealed had contravened Order 45 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules, 2004.

Ground 2, purporting to raise issue of jurisdiction, in actuality complains that the lower Court erred in law when they held as follows –
I am of the considered view that such a decision has not amounted to a nullity for some very obvious reasons. One, it’s rather obvious that on the 26/07/07 in question, all that the lower Court did was simply to read out and deliver the ruling. No issue was raised by the lower Court, suo motu, that would have entitled the parties to the right to fair hearing (re-address the Court) prior to the delivery of the ruling. Secondly, it was not the case of the Appellant that the delivery of the ruling has in any way resulted in a miscarriage of justice thereto or any party for that matter.

The two reasons the lower Court gave for holding that the ruling appealed was not a nullity are all matters of fact to be fished from the record of proceedings. The said ground 2, in my firm view, raises an issue of mixed law and fact, and not a jurisdictional issue per se.

A finding, as the trial Court did, “that Chief Ladi Williams, SAN was not the alter ego and directing mind of the 1st respondent and … therefore the actual claimant/1st Respondent” is one of fact. Ground 3, complaining that the lower Court “erred in affirming” that finding of fact by the trial, is my firm view, a ground raising and complaining about the concurrent findings of fact. Ground 3 therefore raises issue of pure fact.

Ground 4 classically raises issue of pure fact. It complains that the lower Court “erred in law when they upheld the finding of the trial Court to the effect that the 1st Respondent was not mentioned in the exhibit and could not be liable for the terms and the condition inherent in Exhibit TEW.1”, The ground challenges, or complains about, the concurrent findings of fact.

Since ground 5 would require this Court, first, probing into or interrogating the crucial fact whether Exhibits TEW.2, TEW.4 and TEW.5 were made by Chief Ladi Williams, SAN “during the course of bona fide attempt to settle the matter between Chief Ladi Williams and the Appellants” before Section 25 of the Evidence Act could be invoked to render them inadmissible in evidence. Ground 5 raises an issue of mixed and fact.

Ground 6 complains that the “learned Justices of the Court of Appeal erred in law in refusing to stay proceedings in the matter and refer the parties to arbitration as they have contracted in Exhibit TEW.1″. The ground questions the discretion by the lower Court in “refusing to order stay of proceedings”. It is trite that exercise of judicial discretion shall be done judicially and judiciously. Ground 6 is accordingly premised on mixed law and fact.

On the foregoing premises, this appeal is clearly incompetent and frivolous, It accordingly deserves to be struck out. Previous leave of Court sought and obtained is mandatory for the Appellants herein to lodge this further appeal on the six (6) grounds of appeal raising issues of either pure fact or mixed law and fact. The notice of appeal filed on 14 March, 2013 as of right in defiance of the mandatory provisions of Section 233 (2) & (3) of the 1999 Constitution, is grossly incompetent.

This further appeal, even on the merits, is totally uncalled for. It is clearly frivolous and vexatious. Sadly, the arbitration clause the appellants, as defendants, have foisted their appeals on is contained in a contract between Chief Ladi Williams, SAN, and his siblings in their personal capacity which contract neither the Respondents, as claimants nor the Appellants as defendants are party to. It is trite only a party to a contract that can sue on it and/or take the benefit of the arbitration clause therein AIDC v. NLNG LTD (2000) 4 NWLR 497, IKPEAZU v ACB LTD (1965) NMLR 374.

I have read Order 45 Rule 5(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004. It permits the business of Court during vacation where “the cause or matter is urgent”. When the Order 45 Rule 5(1) is read together with Section 294(1) of the 1999 Constitution, I should think that the learned trial Judge should be commended for delivering his ruling during the long Vocation as waiting till the vacation was over would run him on collision course with the mandatory constitutional provision in Section 294(1) of the Constitution that enjoined him to deliver his “decision in writing not later than ninety days after the conclusion of evidence and final addresses…”
It is obvious from reading Orders 1 Rule 1(2) and 5 Rule 1(2) of the said Lagos State High Court (Civil Procedure) Rules, 2004 that non-compliance with Order 45 Rule 5 of the same Rules is a mere procedural irregularity, unless the Appellants established that they had suffered miscarriage of justice. See OSASAMI v. POLICE (1952) WACA 24, VERITAS INVESTMENT CO. LTD v. CITI TRUST INVESTMENT LTD (1993) 3 NWLR (pt. 281) 349 (CA) cited with approval by this Court in ANIE v. UZORKA (1993) 8 NWLR (pt. 309) 1 (SC) at 23. The Appellants, belligerently penchant at pursuing the abuse of Court process in the frivolous and vexatious appeals at the lower Court and here, never once alluded to these provisions of the extant rules of the trial Court and the authoritative judicial precedents.

The law is trite the mere fact that Chief Ladi Williams, SAN has the controlling shares in the company, the 2nd Respondent, does not ipso facto make him the alter ego. See OKOMU OIL PALM CO LTD v. ISERHIENRHIEN (2001) SC 140. The unchallenged counter-affidavit of Adeleke Dina at pages 97 – 98 poignantly averred “that Chief Ladi Williams, SAN, is not “the alter ego or controlling mind of” the 2nd Respondent and that the Chairmanship of the 2nd Respondent is rotational and is done informally being a private company, and further “that Chief Ladi Williams, SAN, is not even the Managing Director of the 2nd Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is clear that the concurrent findings of fact, on which was predicated the trial Court’s decision affirmed by the lower Court, did not occasion any miscarriage of justice that would warrant the interference by this Court. By virtue of Sections 134 and 135 of the Evidence Act, 2004 (now Sections 131 and 132 of the Evidence Act, 2011) the Appellants, who were applicants seeking the discretionary remedy or order staying further proceedings, had the burden of establishing the facts they asserted in order to be entitled to favourable decision of the trial Court. They failed to establish their entitlement to the discretion of the trial Court, which of course must be exercised judicially and judiciously.

I reiterate my stance that this further appeal is frivolous and vexatious, and an exercise in gross abuse of the process of Court. It is sad to note that the chambers of a Senior Advocate – Kola Awodein & Co., had been the engine room responsible for propelling this reprehensible charade of the interlocutory appeals, designed only to delay and gag the trial of the substantive suit since 2007. How long can our administration of justice tolerate this unworthy and corruptly shenaniganism, even by Senior lawyers? This gross abuse of process, notwithstanding the incompetence of the appeal, enables me to agree with the final order of my learned brother, EMMANUEL AKOMAYE AGIM, JSC dismissing the appeal. I abide by all consequential orders made in the lead judgment.

MOHAMMED LAWAL GARBA, J.S.C.: The lead judgment written by my learned brother, E. A. Agim, JSC, in this appeal, which I read before now has fully considered all my views on the issues that call for decision by the Court and so I agree that the appeal, apart from being frivolous and a deliberate frustration of the substantive suit, deserving of the strongest deprecation, is also grossly devoid of merit, deserving of penal dismissal.

I join in dismissing the appeal in terms of the lead judgment.

Appearances:

CHIMA OKEREKE ESQ with him ABDULLAHI OLUSUNMAE ESQ For Appellant(s)

P. B. DAUDA with him him E.A ONI ESQ, O. O. IGBAYI LOLA ESQ, B.N DIBIAH and A. O, AKOR for 1st respondent

O. E OSHUBADE for 2nd respondent For Respondent(s)