GOJI v. GARNVWA (2022)

GOJI v. GARNVWA

(2022)LCN/16742(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, July 21, 2022

CA/YL/159/2017

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

HON. JUSTICE M.B. GOJI (RTD) APPELANT(S)

And

DAVID A. GARNVWA RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPEAL COURT HAS JURISDICTION TO DETERMINE AN ISSUE RAISED BY AN APPELLANT WHERE THERE IS NO VALID RECORD OF APPEAL

With no valid record of appeal it follows that there is no jurisdiction or platform upon which the Court can stand, and determine the issues as raised by the said appellant, or even the rest of the issues as raised by the respondent in this appeal. My stance is emboldened by the decision of the apex Court in the case of Dr. Okey Ikechukwu vs. FRN. & Ors (2015) 7 NWLR (Pt. 1457) 1, per Nweze, JSC. where at p. 21, paras. B-G and P. 22, para. C, he enjoined that: As a general rule, an intermediate Court, like the Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent’s Preliminary Objection to the competence of the Appellant’s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal. PER AKINBAMI, J.C.A.

WHETHER OR NOT AN INCOMPETENT PROCESS CAN BIRTH A COMPETENT PROCESS

This principle of law was given judicial imprimatur in the case of IFETETO VENTURES LTD & ANOR V. ENTERPRISE BANK LTD (2014) LPELR-23103(CA), wherein this Honourable Court aptly held thus:
“It is a fundamental principle of law, the application of which has become trite, that an incompetent process cannot birth a competent process. The colloquial legal phrase is you cannot place something on nothing and expect it to stand.” (Refers Macfoy v. UAC (1962) AC 152 at 160). PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant who was the Defendant at the trial Court. The appeal is against the judgment of the High Court of Justice, Adamawa State delivered on 19/06/2017 in favour of the Respondent who was the Plaintiff at the trial Court.

STATEMENT OF FACTS
By an undated Writ of Summons and the Statement of Claim dated 22nd day of March, 2011, the Plaintiff claimed against the Defendant at the trial Court as follows:
a. An order of the Hon. Court directing the Defendant to pull down the wall erected by the Defendant on the Plaintiff’s land.
b. Perpetual Injunction restraining the Defendant by himself, his agents, privies and servants from any act of trespass or further trespass on the Plaintiff’s land.
c. Two Million Naira damages against the Defendant for trespass to the Plaintiff’s land.

The Defendant vide a Statement of Defense dated the 25th May, 2011 put up a defense to the Plaintiff’s claim.

The matter was struck out for lack of diligent prosecution on the 09/11/2016 and relisted on the application of Counsel to the Plaintiff on the 11/01/2017.

Upon the demise of Late Hon. Justice B. P. Lawi, the trial Court Judge assigned the case to himself while he was the Acting Chief Judge of Adamawa State.

The Defendant through his Counsel applied for the new trial Judge to the matter to disqualify himself for real likelihood of bias, an application which was heard and refused.

On 05/04/2017, the matter came up before the Court and parties Counsel did not appear in Court and the matter was adjourned to 26/04/2017.

The following day of 05/04/2017, the Defendant’s Counsel met the Registrar of the Court and inquired as to when the case and other two (2) sister cases were adjourned to and Learned Counsel to the Plaintiff was told by the Registrar of the Court that the cases were adjourned to 27/04/2017. Which he recorded in his case diary.

Learned Counsel for the Defendant was informed that the cases including this on Appeal came up and evidence was taken and the cases for the Plaintiff and the Defendant closed.

By a Motion dated and filed on 11/05/2017, the Defendant brought an application to enable him open his defense in the matter, but that application was not heard nor entertained, despite the fact that its pendency was brought to the attention of the trial Court’s Judge four days after the matter was adjourned for judgment.

The trial Court delivered its decision on 19/06 2017 and granted all the reliefs sought by the Plaintiff.

Dissatisfied with the judgment, the Appellant filed his Original Notice of Appeal dated 30th June, 2017, which was later Amended, and was Further Amended dated 11th January, 2021 and was deemed as properly served on the 9th March, 2021 challenging the judgment of the trial Court delivered on 19/06/2017 in Suit No. ADSY /33/2011.

Aggrieved, the Appellant filed his Further Amended Notice of Appeal, wherein he complained and appealed on five grounds.

The reliefs sought from this Court are:
1. AN ORDER allowing this appeal.
2. AN ORDER dismissing the Claim of the Respondent in the Court below.

The Appellant’s brief settled by Mohammed Bamanga Esq., was adopted by the learned counsel for the Appellant along with the Reply brief. The learned counsel urged the Court to dismiss the preliminary objection and hear the substantive appeal.

He then urged the Court to allow the appeal.

At the hearing of this appeal on the 10th May, 2022, J.A Oguche Esq. Learned counsel for the Respondent drew this Court’s attention to their Notice of Objection duly filed in the Registry of this Court. The Respondent raised objection to the competence of the present Appeal on the following grounds, to wit:
“1. The appeal is incompetent in law, in that it has no competent and/or valid Record of Proceedings to sustain it.
2. The appeal is incompetent in law, in that the Further Amended Notice of Appeal is filed against a non-existent judgment.
3. The appeal is incompetent in law, in that there is no relief whatsoever touching on the judgment being appealed against.
4. Grounds 1, 2, & 5 of the Grounds of Appeal, as well as issues 1, 2, &. 5 distilled therefrom are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.
5. Grounds 2 & 5 of the Grounds of Appeal as well as issues 2, & 5 distilled there from which all are complaints against interlocutory decisions of the trial Court are incompetent in law, in that they were filed outside the 14 days period prescribed by Section 24 (2) (a) of the Court of Appeal Act.
6. Grounds 1, 2 & 5 of the Grounds of Appeal as well as issues 1, 2,& 5 distilled therefrom are incompetent, as they do not arise from the judgment of the trial Court being appealed against.
7. Ground 4 of the Grounds of Appeal as well as issue 4 distilled therefrom are incompetent as they are complaints against the admissibility of documents that are ordinarily admissible in law.
8. Ground 2, of the Grounds of Appeal as well as issue 2, distilled therefrom are incompetent as they were filed without leave, even when they are complaints against the exercise of discretion by the trial Court.
ARGUMENT ON GROUND 1 OF THE OBJECTION:
Learned counsel for the Respondent on ground one contended that this Appeal No: CA/YL/159/2017 is incompetent in law, in that it has no competent or valid record of appeal to sustain it. He gave the reasons as follows:
Record of Appeal complied in Suit No: ADSY/33/2011 whilst the judgment purportedly being appealed against is Suit No: ADSY/118M/2016.”
Learned counsel submitted that a calm and careful perusal of the Record of Appeal would clearly and undeniably show that same was compiled and transmitted to this Court on the 12th day of July, 2021 by the Appellant with respect to SUIT NO: ADSY/33/2011. He referred specifically to the cover page, the Index page, the Schedule of fees paid, as well as the Appellant’s Statement page.

Nevertheless, a cursory look at the judgment contained at pages 206-210, of the Record of Appeal would show that same is in respect of SUIT NO: ADSY/118M/2016. He contended that it therefore goes without saying that the said Record of Appeal contains a judgment that is in respect of a different suit, thus being vitiated in law.

FAILURE OF THE RECORD OF APPEAL TO REFLECT THE CHANGE OF THE NOMENCLATURE OF THE APPELLANT AS CONTAINED IN THE FURTHER AMENDED NOTICE OF APPEAL
It is submitted that it is not in doubt whatsoever that the nomenclature of the Appellant, changed in the course of this appeal and that informed the addition of the word “RTD” to the name of the Appellant. He referred to the Further Amended Notice of Appeal, and submitted that with the addition of the word “RTD” to Appellant’s name, with the leave of this Honourable Court, Appellant is under the strict legal duty to recompile the Record of Appeal (specifically the cover page, the Index page, the Schedule of fees page as well as the Appellant’s Statement page) to reflect the change of nomenclature or status, as the names: HON. JUSTICE M.B. GOJI & HON. JUSTICE M.B. GOJI (RTD) are not one and the same. What this means, is that the Record of Appeal and the extant Notice of Appeal (i.e the Further Amended Notice of Appeal) both reflect different nomenclature of the Appellant. That, it is for the above twin reasons that, counsel submitted that the purported Record of Appeal which was compiled and transmitted to this Court by the Appellant on the 12th day of July, 2021 is incompetent in law and therefore incapable of sustaining APPEAL NO: CA/YL/159/2017 as same is in respect of a suit totally different from the judgment being purportedly appealed against.

The net effect therefore is that APPEAL NO: CA/YL/159/2017 is incompetent in law, as it has no competent or valid Record of Appeal to sustain it. This is so because the law is well settled beyond equivocation that an incompetent Record of Appeal cannot sustain an appeal. See the case of TOTAL E & P (NIG) LTD VS. JONATHAN & ANOR (2018) LPELR-44691(CA), PAGES 12-13, PARAGRAPH C. Learned counsel contended that it is for this reason therefore that, this Court is urged to strike out APPEAL NO: CA/YL/159/2017 for incompetence, as the Record of Appeal upon which it is premised, is incompetent in law. You cannot place something on nothing and expect it to stand. It must collapse. This much is illustrated by the latin maxim: ex nihilo nihil fit, meaning “Out of nothing, Nothing comes”.

This principle of law was given judicial imprimatur in the case of IFETETO VENTURES LTD & ANOR V. ENTERPRISE BANK LTD (2014) LPELR-23103(CA), wherein this Honourable Court aptly held thus:
“It is a fundamental principle of law, the application of which has become trite, that an incompetent process cannot birth a competent process. The colloquial legal phrase is you cannot place something on nothing and expect it to stand.” (Refers Macfoy v. UAC (1962) AC 152 at 160).

This Court on the strength of these judicial authorities is urged to uphold Ground 1 of the Respondent’s objection and strike out APPEAL NO: CA/YL/159/2017 for being grossly incompetent.

ARGUMENT OF GROUND 2 OF THE OBJECTION
The appeal is incompetent in law, in that the Further Amended Notice of Appeal is filed against a non-existent judgment.

Learned counsel on ground two, submitted that APPEAL NO: CA/YL/159/2017 is incompetent in law, and thus liable to be struck out in that the Further Amended Notice of Appeal is filed against a non-existent judgment. This is so because a calm and careful perusal of the judgment which is at pages 206-210 of the Record of Appeal (especially page 1 of the said judgment which is at page 206 of the Record of Appeal) would show clearly that the said judgment was delivered by the trial High Court in SUIT NO: ADSY/118M/2016 whilst the Appellant filed his Further Amended Notice of Appeal against the judgment purportedly delivered in SUIT NO: ADSY/33/2011, which is not contained in the Record of Appeal.

Since the Further Notice of Appeal is filed against a judgment which is not contained in the Record of Appeal, counsel submitted, that APPEAL NO: CA/YL/159/2017 is against a non-existent judgment, thus being incompetent in law.

In the case of NDUKWE V. NDUKWE (2015) LPELR-25604(CA), this Honourable Court held as follows:
“There is no doubt that the Appellant’s Notice of Appeal was without any foundation and like an empty bag, It cannot stand since it did not disclose the suit number, the determination upon which the Appeal was predicated. The authorities of Ossai v. FRN (2012) LPELR – 19669, Shettima v. Goni (2011) 18 NWLR (Pt.1279) 418, CPC v. INEC (2011) 18 NWLR (Pt.1279) 493 and Bawa v. Aliyu (2015) 3 NWLR (Pt.1447) 523 and in particular the dictum of our Learned brother, Oredola, JCA in Udeagha v. Nwogwugwu (2013) LPELR – 21819, where His Lordship eruditely emphasized the importance of a valid and competent Notice of Appeal as the “font et origo” of every valid Appeal, the absence of which the jurisdiction of an Appellate Court cannot be invoked; are all on point. Since the Notice and Grounds of Appeal as filed by the Learned Counsel for the Appellant are bereft of this element, this appeal is bound to be and is accordingly struck out.”

In the latter case of NYAVO V. ZADING (2016) LPELR-40803(CA), this Judicial Division of the Court of Appeal aptly stated in it:
“In law an issue of competence is of utmost importance. This is so because where the requisite jurisdiction to hear and entertain any suit or matter or cause or appeal is found to be lacking by reason of incompetence of the originating processes, that is indeed the end of the matter and it does not matter how meritorious or even how painful or difficult the result may be on the party whose originating process turns out to be incompetent. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the erudite Kayode Eso JSC, (God bless his soul) had put it so poetically and biblically thus: “Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the Court on the other hand labour in vain” It is for this reason that the issue of competence, that is jurisdiction, can even be raised suo motu by the Court to ensure that matters before it are competent in order that the Court does not end up acting in vain and in nullity if it turns out in the end that it indeed lacked the requisite competence to have heard and determine the cause or matter or action or appeal before it. It is simply a nullity. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Balogun V. Ohiwhere (2005) All FWLR (Pt. 281) 1724, Onuorah V. Kaduna PRC Ltd. (2005) All FWLR (Pt. 256) 1356; Okereke V. Yar’Adua (2008) All FWLR (Pt. 343) 636, Essien V. Essien (2010) All FWLR (Pt. 523) 1192, Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693, Western Steel Works Ltd. V. Iron and Steel Workers Union (1986) 2 NSCC (Vol. 17) 786 AT p. 798. In law, therefore, where a Court finds that it has no jurisdiction and that the proceedings are a nullity that is where the matter ends and no amount of sentiment or substantial justice or indeed over zealousness can dictate otherwise, since one cannot put something on nothing and expect it to stand. In Macfoy V. UAC Ltd. (1962)I AC 100 AT p. 160, the immortal words of the erudite law lord, Lord Denning springs forth thus: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have an order declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”….The Notice of Appeal, in so far as appeals are concerned, is the originating process and thus must be valid and competent to confer life on an appeal. Consequently, once a Notice of appeal is found or turns out to be invalid and incompetent, as in the instant appeal, it is indeed the end of the matter. In law, such an appeal commenced by an invalid Notice of Appeal is itself incompetent. It is incurably bad and thus good for nothing or anything worthwhile the precious time of this Court to be considered on the merit….In Okarika V. Samuel (2013) 2 SCNJ 491, the Supreme Court pronounced with finality on the issue of invalid Notice of Appeal inter alia thus: It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute between them….Again, in Shelim V. Gobang (2009) Vol. 173 LRCN 36 at 42, it was emphatically stated thus: First and foremost, a notice of appeal is the basis, foundation and backbone of every appeal and where it is found to be defective or incompetent, the Court of Appeal has the power to strike it out or to discountenance any purported appeal for which there is no notice of appeal.” The above decision, though based on the strength of the succinct provisions of the Rules of this Court, vide Order 6 Rule 6 of the Court of Appeal Rules 2011, is equally true as the general position of the law whenever a Court or Tribunal finds that the originating process of any matter before it is incompetent and not initiated by due process of law, such a process or matter is invalid and a nullity and should be struck out without much ado! See Order 6 (6) of the Rules of this Court, which provides as follows: The Court shall have the power to strike out a notice of appeal when the appeal is not competent….It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the preliminary objection challenging the competence of the appeal partly succeeds on the second ground of objection. Consequently, I too hereby strike out the Notice of Appeal and the entire appeal founded thereon for being incompetent.”

Furthermore, this principle of law was re-iterated by this Honourable Court in AFRICAN SONGS LTD & ANOR V. KING SUNNY ADE (2018) LPELR-46184(CA) thus:
“Now, a notice of appeal is the spinal cord of an appeal and therefore, without a competent notice of appeal, which is the foundation on which the appeal is built, an appeal its if is incompetent and without a life of its own and thus liable to be terminated in limine by way of it being struck out by the Court….The Notice of Appeal, in so far as appeals are concerned, is the originating process and thus must be valid and competent to confer life on an appeal. Consequently, once a notice of appeal is found or turns out to be incompetent, as in the instant appeal, it is indeed the end of the matter. In law, such an appeal commenced by an invalid notice of appeal is itself incompetent. It is incurably bad and thus not good for anything worthwhile the precious time of this Court to be considered on the merit….This Court has the power to strike out a notice of appeal as well as the appeal when it turns out that the notice of appeal is not competent. This is so because, once there is no valid notice of appeal there is really no basis in law to proceed to consider and resolve an incompetent appeal on the merit, since no matter how well reasoned or sound such a judgment on the merit would be, it having been reached in the absence of competence and lack of jurisdiction, is nothing but a nullity. In Macfoy V UAC Ltd. (1962) AC 152 p. 160, the immortal words of that erudite law Lord, Lord Denning springs forth to life thus: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have an order declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. In the circumstances therefore, the preliminary objection by the Respondent challenging the competence of the Appellants’ notice of appeal is well founded and being meritorious is hereby upheld. In the result, the notice of appeal filed on 2/2/2016, as well this appeal, is hereby struck out without much ado.”

Premised on the judicial authorities above this Court is urged to uphold ground 2 of the Respondent’s objection and strike out the Appellant’s Further Amended Notice of Appeal as well as APPEAL NO: CA/YL/159/2017 for being grossly incompetent.

ARGUMENT OF GROUND 3 OF THE OBJECTION
The appeal is incompetent in law, in that there is no relief whatsoever touching on the judgment being appealed against.

Learned counsel referred to page, 6 of the Further Amended Notice of Appeal, wherein only two reliefs are embossed thereon, thus:
“RELIEFS SOUGHT
1. AN ORDER allowing the appeal.
2. AN ORDER dismissing the Claim of the Respondent in the Court below.”

It is submitted that a cursory glance at the above quoted reliefs, will show that there is no relief whatsoever in the Further Amended Notice of Appeal touching on the judgment being appealed against. In other words, the Appellant is not seeking for any order with respect to the judgment being questioned or challenged. This fundamental defect, counsel submitted, is fatal, thus vitiating the appeal. See the case of FAYEMI & ANOR VS. ONI & ORS (2010) LPELR-4145(CA), PAGES 99-100, PARAGRAPH G.
“It is trite and elementary to state that a notice of appeal/cross-appeal is akin to a writ of summons which is an originating process. It is the relief sought on such process that determines the nature of the claim or cause of action and also its competence. It follows without saying therefore that in the absence of a relief there cannot be any cause of action upon which the Court is to adjudicate. In other words, a Court’s jurisdiction is exercisable where there is clear and identifiable relief upon which the action is anchored.”

It is submitted that the Further Amended Notice of Appeal, not containing a relief touching on the judgment being appealed against is such that, if the appeal succeeds, this Honourable Court will be unable to make any order regarding or concerning the judgment being complained against, because there is no relief to that effect in the Further Amended Notice of Appeal. This Honourable Court will not grant a relief not sought for by the Appellant. See the case of U. O. O (NIG) PLC VS. OKAFOR & ORS (2016) LPELR-41507(CA), PAGES 34-37, PARAGRAPH F.

On the strength of these judicial authorities counsel urged this Court to uphold Ground 3, of the Respondent’s objection and strike out APPEAL NO: CA/YL/159/2017 for being grossly incompetent.

ARGUMENT OF GROUND 4 OF THE OBJECTION
Grounds 1, 2 & 5 of the Grounds of Appeal as well as issues 1, 2 & 5 distilled therefrom are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.

Learned counsel submitted that Grounds 1, 2 & 5 of the Grounds of Appeal as well as Issues 1, 2 & 5 distilled there from are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.

Indeed, at paragraphs 1 & 2 of page 1 of the Further Amended Notice of Appeal, the Appellant SPECIFICALLYCIRCUMSCRIBED the limit of his appeal thus:
“1. TAKE NOTICE that the Appellant being dissatisfied with the final decision of the High Court of Justice Adamawa State delivered on 19/06/2017 do hereby appeal to the Court of Appeal upon Grounds set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4. AND THE APPELLANT FURTHER states that the names and addresses of the persons directly affected by the Appeal are set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: the whole decision of Hon. Justice Nathan Musa delivered on the 19th day of June, 2017 in Suit No. ADSY/33/2011 between David A. Garnvwa Vs Hon. Justice M.B. Goji.”

It is submitted that by virtue of the above explicitly quoted wordings of paragraphs 1 & 2 of the Further Amended Notice of Appeal, the Appellant has UNDENIABLY and UNQUESTIONABLY limited the scope of his appeal to just the decision of 19th day of June, 2017.

Learned counsel submitted that a careful perusal of the Further Amended Notice of Appeal would show irrefutably that grounds 1, 2 & 5 of the Grounds of Appeal as well as Issues 1, 2 & 5 distilled therefrom are complaining against issues outside the judgment of 19th day of June, 2017, which is being purportedly appealed against, thereby taking them outside the scope/purview of the Further Amended Notice of Appeal and thus rendering them incompetent in law.

In the case of ECOBANK VS. UPRIGHT INCON LTD (2020) LPELR-49768(CA), PAGES 6-9, PARAGRAPH F, this Honourable Court stated as follows:
“The amended notice of appeal clearly states the part of the judgment of the trial Court that is complained against in this appeal in keeping with Order 7 Rule 2(1) which provides thus- 2-(1) “All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.”….The part of the judgment that granted relief 1 of the counter-claim and failed to grant relief (II) of the counter-claim is not part of the judgment the notice of appeal indicated this appeal is complaining against. By indicating the specific parts of the judgment the appeal complains against, the appellant gave notice that it is not complaining against the whole judgment and that it accepts as correct, conclusive and binding the parts of the judgment outside the parts the appeal complains against. Therefore, any ground of appeal or issue for determination that complains against any part of the judgment of the trial Court outside the part listed in the notice of appeal as the part complained against by the appeal is incompetent.”

It is on the strength of these judicial authorities that counsel urged this Court to uphold ground 4 of the Respondent’s objection and strike out grounds 1, 2 & 5 of the Grounds of Appeal as well as Issues 1, 2 & 5 distilled therefrom for being grossly incompetent.

ARGUMENT OF GROUND 5 OF THE OBJECTION
Grounds 2 & 5 of the Grounds of Appeal as well as issues 2 & 5 distilled there from which all are complaints against interlocutory decisions of the trial Court are incompetent in law, in that they were filed outside the 14 days period prescribed by Section 24(2)(a) of the Court of Appeal Act.

Learned counsel submitted that grounds 2 & 5 of Appellant’s Grounds of Appeal, as well as issues 2 & 5 distilled therefrom, are not complaints against the judgment of the trial Court delivered on the 19th day of June, 2017 but complaints against interlocutory decisions of the trial Court. The law is well settled beyond equivocation that an appeal, or a complaint against an interlocutory decision of a High Court (the trial Court), can only be competently filed within 14 days of the delivery of the said interlocutory decision. See Section 24(2)(a) of the Court of Appeal Act, which expressly provides thus:
“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.” (Underlining ours for emphasis).
It is submitted that, a careful perusal of the Record of Appeal, will clearly show that the interlocutory decision of the trial Court, which is the subject of the complaint in Ground 2 of the Grounds of Appeal, was delivered on 04/05/2017, whilst the interlocutory decision of the trial Court which is the subject of the complaint in Ground 5 of the Grounds of Appeal, was delivered on 15/05/2017. See pages 203 & 206 of the Record of Appeal. Since it is abundantly clear that Grounds 2 & 5 of the Appellant’s Grounds of Appeal, are complaints against the interlocutory decisions of the trial Court, which appeal ought to have been filed within 14 days of the delivery of the said decisions, the simple question therefore is whether the said Grounds 2 & 5 are competent in law, same having been filed outside the statutorily prescribed period of 14 days without either LEAVE of this Honourable Court or that of the trial High Court? Learned counsel Answered in the negative. See NWAOLISAH VS. NWABUFOH (2011) 199 LRCN 21 AT 26, the Supreme Court held among other things thus:
“….Leave of Court, where it is required, is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court.”
See AJOBENA VS. MUJAKPERUO & ORS (2014) LPELR-23209(CA), this Honourable Court had this to say:
“Doubtless, a party can include in one appeal, appeals against a ruling and judgment in one exercise in order to avoid unnecessary delay by appealing separately, provided that where such appeals are out of time, the proper procedure is complied with in order to meet the unavoidable technicalities involved. See OGIGIE vs. OBIYAN (1997) 10 SCNJ 1 at 15 and UBA PLC vs. OSULA (2002) LPELR -7176 (CA) 1 at 13. So technically, the learned Counsel for the Appellant is on a strong wicket when he submitted that he was at liberty to complain against any earlier decision/order made in the course of proceedings before the final judgment. I am however quick to add that in order for such complaint to be validly taken along with the appeal against the final judgment, such an appeal against the earlier decision must have been made in a timely manner and upon due compliance with all the requirements attendant thereto, including getting leave of Court to appeal out of time, if necessary. On the peculiar facts of this matter, the decision of the lower Court of 26th June, 2006 striking out the Appellant’s motion filed on 23rd June, 2006 is an interlocutory decision. By Section 24 (2) (a) of the Court of Appeal Rules 2011, an appeal against an interlocutory decision is to be brought within fourteen days. The notice of appeal in this matter was filed on 17th August, 2006, more than fourteen days after the decision of the lower Court of 26th June, 2006 and there was no order for extension of time granted to the Appellant in that regard. The proper procedure was therefore not followed in order to meet the unavoidable technicalities involved: UBA PLC vs. OSULA (supra) . The law is that for a ground of appeal to be competent, it must arise from the judgment or decision appealed against. See NGIGE vs. OBI (2006) 14 NWLR (PT 999) 1 at 240 and EZE SUNDAY vs. ONYEZE (2010) LPELR – 4985 (CA) 1 at 12 – 13. Since grounds 5 and 6 of the Grounds of Appeal do not arise from the decision of 3rd August, 2006, which is the decision appealed against as expressed in the Notice of Appeal, the said grounds of appeal are incompetent and must be struck out. Accordingly, the preliminary objection of the 1st – 7th Respondent succeeds in part and grounds 5 and 6 of the grounds of appeal are hereby struck out for being incompetent.”

On the strength of these judicial authorities, counsel urged this Court to uphold Ground 5, of the Objection and strike out Grounds 2 & 5 of the Grounds of Appeal for being grossly incompetent. Learned counsel noted that at page 3, of Appellant’s Brief of Argument, the Appellant formulated Five Issues for determination, wherein he distilled issue 1 from Ground 1, Issue 2 from Ground 2, Issue 3 from Ground 3, Issue 4 from Ground 4 and Issue 5 from Ground 5, respectively.

It is submitted that since Appellant’s issues 2 & 5 are distilled by him from Grounds 2 & 5 of the Grounds of Appeal, it therefore stands to reason that the incompetence of the said Grounds 2 & 5 has automatically vitiated the said Issues 2 & 5 distilled therefrom.

It is for this reason therefore that learned counsel urged this Court to strike out the said issues 2 & 5 of the issues for determination for being incompetent.

ARGUMENT ON GROUND 6 OF THE OBJECTION
Grounds 1, 2 & 5 of the Grounds of Appeal as well as issues 1, 2 & 5 distilled therefrom are incompetent as they do not arise from the judgment of the trial Court being appealed against.

It is submit that Grounds 1, 2 & 5 of the Grounds of Appeal are, incompetent in law, as they do not arise or flow from the judgment of the trial High Court contained at pages 206–210 of the Record of Appeal.

It is well settled beyond equivocation that in an appeal before an appellate Court (as in the case at hand), the parties and the appellate Court are strictly bound by the record of appeal. See the case of IDRIS VS. ABUBAKAR (2011) ALL FWLR (PT. 557) 733 AT 738 RATIO 7. As can be seen clearly, a comparative analyses of Grounds 1, 2 & 5 and the judgment of the trial Court at pages 206-210 of the Record of Appeal would show irrefutably that the said Grounds 1, 2 & 5 of the Grounds of Appeal they do not arise and/or flow from the judgment of the trial High Court being appealed against. See ETIEMONE V. APINA (2019) LPELR-47258(CA), this Court held as follows:
“I have gone through the decision of the trial Court under challenge, I cannot find any part of the decision where illegality relating to the interest claimed was raised and determined by the learned trial judge. The law is trite that an appeal can only lie against what was decided by the lower Court. An appeal against a judgment on a matter not decided in the judgment appealed against is incompetent and not valid for consideration by the appellate Court. See FCMB V. Benbok Ltd (2014) LPELR 23505 and Onyia V. Mbiko & Anor (2014) LPELR 23028. In the light of the above, arguments of counsel in support of an issue for determination must as of necessity relate to the issue and the decision appealed against. A counsel is not permitted in his argument on an issue to delve into matters of fact or law that were never considered by the trial Court. Counsel ought to restrict himself in matters in controversy that formed the ratio of the trial Court’s decision. The issue of illegality of the interest charged was an issue raised and canvassed at the trial Court, but it did not form part of the Court’s decision and as such ought not be strenuously argued by counsel as he did in this case.”

Learned counsel contended that, having successfully established that Grounds 1, 2 & 5 of the Grounds of Appeal are incompetent for having not arisen from the judgment being appealed against, he submitted therefore that issues 1, 2 & 5 of the issues for determination are incompetent in law and liable to be struck, same having been distilled from the incompetent Grounds 1, 2 & 5 of the Grounds of Appeal. This is so because the law is well settled that, an issue for determination which is distilled from the ground of appeal which does not flow or arise from the judgment or ruling being appealed against, is incompetent since the ground from which it is distilled is incompetent ab initio. See the case of ABDULLAHI & 2 ORS VS. THE STATE (2013) 224 LRCN (PT. 2) 151 AT 156 RATIO 1, wherein the Supreme Court held thus:
“The principle must be restated at this stage that an issue for determination in an appeal must relate to a Ground of Appeal which challenges the validity of the ratio of the decision being appealed against. Where the Ground of Appeal issue which purports to have been distilled therefrom do not arise from the decision appealed against both are incompetent.
Put differently, an appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point there cannot, therefore, possibly be an appeal against what has not been decided.”

ARGUMENT ON GROUND 7 OF THE OBJECTION
Ground 4 of the Grounds of Appeal as well as issue 4 distilled therefrom are incompetent as they are complaints against the admissibility of documents that are ordinarily admissible in law.

It is submitted that Ground 4 of the Grounds of Appeal is a complaint against the admissibility of Exhibits A, B & C, on the ground that they were not frontloaded by the Respondent. It is not also in doubt that, the said Exhibits A, B & C are ordinarily admissible in law, but according to the Appellant, they are admissible upon the fulfillment of the condition of being frontloaded.

Exhibits A, B & C were not objected to by Appellant’s Counsel, when they were tendered in evidence by Respondent’s Counsel on the 26th day of April, 2017. lt is submitted that since Exhibits A, B & C are ordinarily admissible in law, and since they were tendered and admitted in evidence without objection by Appellant’s Counsel, the Appellant is by law barred from raising a Ground of Appeal challenging them. To that end therefore, Ground 4 of Appellant’s Grounds of Appeal is incompetent in law, and therefore liable to be struck out. See MICHAEL v. ACCESS BANK (2017) LPELR-41981(CA), this Court held as follows: “I thought I must point it out at once that in law whether a complaint against inadmissible evidence being admitted by a trial Court should be raised on appeal or not will depend on whether the evidence so admitted by the trial Court was one admissible on proper foundation and no such foundation was laid or one which is rendered inadmissible by law and thus not admissible in evidence in any event. Where the evidence is of the former category and admitted in evidence without proper foundation but without any objection, it will be too late in the day for a party who had not objected to its admissibility to do so for the first time on appeal. Where however, the evidence belongs to the latter category of being inadmissible in any event or rendered inadmissible by law, an objection can validly be taken against its admissibility for the first time on appeal even where it was not objected to at the trial. This is so because in law a Court of law is under a duty to act only on admissible evidence in deciding matters before it. See Olukade V. Alade (1976) 1 SC 83. See also Esso West African Incorporated v. Alli (1968) NMLR 414, Ajayi v, Fisher 1 FSC 97, Ugbala v. Okorie (1975) 12 SC 13, Yassin v. Barclays Bank (1968) 1 ALL NLR 171, Kossen Nig. Ltd V. Savanah Bank Nig. Ltd (1995) 9 NWLR (PT. 421) 1, GOODWILL & TRUST INVESTMENT LTD & ANOR v. WITT & BUSH LTD (2011) LPELR-1333(SC), PAGE 22, PARAGRAPH B, the Supreme Court laid the matter to rest in these beautiful words: “…In a trial by a judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law, and where the evidence complained of is admissible under certain conditions. In the former class of cases, the evidence cannot be acted upon even if parties admitted it by consent, and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the lower Court (although the evidence was admitted in the lower Court without objection), in the latter class of cases, if the evidence was admitted in the lower Court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial Court to act on it and the Court of Appeal will not entertain any complaint on the admissibility of such evidence.”

It is submitted that having successfully proven that Ground 4 of the Grounds of Appeal is incompetent in law, it therefore goes without saying that Issue 4, of the issues for determination is, incompetent in law and liable to be struck out too, same having been distilled from an incompetent Ground 4 of the Grounds of Appeal. ABDULLAHI & 2 ORS VS. THE STATE (SUPRA).

On the whole, this Court is urged to uphold Ground 7 of Objection, and hold that the present appeal is incompetent in law, and thus liable to be struck out.

ARGUMENT ON GROUND 8 OF THE OBJECTION
Ground 2 of the Grounds of Appeal as well as Issue 2 distilled therefrom are incompetent as they were filed without LEAVE even when they are complaints against the exercise of discretion by the trial Court. It is submitted that ground 2 of the Grounds of Appeal as well as issue no. 2 distilled therefrom, are complaints against the exercise of the discretion by the trial Court, not to grant adjournment to him to enable him cross-examine Respondent’s sole witness. Indeed, this contention is well buttressed and affirmed by the Appellant himself in paragraphs 5.06, 5.07 & 5.08 at page 8 of his Brief of Argument, wherein he emphatically argued as follows:
“5.06 My Lords, it is trite that adjournment is granted at the discretion of the Court, it is also trite that all judicial discretion must be exercised both judicially and judiciously in the interest of justice.
5.07 In Onah Vs Okom (2012) ALL FLWR (PT. 647) Pg. 703 at 723, the Court of Appeal Calabar Division held thus:
The decision whether or not to grant an adjournment is the discretion of the trial Court. Once that has been properly and judiciary and judiciously exercise, an Appellant Court will not interfere therewith.
5.08 My Lords, as can be gleaned from the decision of this Honourable Court in Onah Vs. Okom (Supra) it is not in doubt that the trial Court has discretion to grant an adjournment or not to grant it. But is it however clear that such discretion must be exercised properly, judicially and judiciously in the interest of justice.”

It is submitted that it is beyond doubt that ground 2, of Appellant’s Grounds of Appeal as well as issue 2, distilled therefrom, are complaints against the exercise of the discretion by the trial Court, therefore the said ground 2 of Appellant’s Grounds of Appeal as well as Issue 2 distilled therefrom are incompetent in law, and thus liable to be struck out, as they were filed without LEAVE of this Court first sought and obtained. This position of the law was succinctly laid down by this Court in OGUNMILUA VS. ASHAOLU & ANOR (2013) LPELR-22324(CA), PAGES 22 & 23 PARAGRAPH A thus:
“Clearly, the decision of the learned trial judge to refuse the application for amendment is an exercise within his discretionary powers as a Judge. See PANALPINA WORLD TRANSPORT HOLDING A.G. v. JEIDOL LTD & ANOR (2011) LPELR 4828 CA. The law presupposes that the trial Judge is in charge of his Court and in dispensing justice he must be allowed to exercise discretion judicially and judiciously. Thus Courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See OWNERS OF M. V. LUPEX v. N.O.C. & S LTD (2003) 15 NWLR (Pt. 844) 469. That is why the Superior Courts have held that where the discretion of a trial Court is challenged Leave must first be sought and obtained before that Court or the Appellate Court before it can be countenanced by an Appellate Court….”

On the whole, learned counsel urged this Court to uphold Ground 8 of Objection, and strike out Ground 2 of the Grounds of Appeal together with Issue No.2 distilled from it.

The Appellant in his Reply Brief filed on the 4th April, 2022 responded to the eight grounds objection raised by Respondent.

RESPONSE OF APPELLANT ON GROUND ONE:
It is submitted that the appeal is incompetent in law, in that it has no competent or valid Record of Appeal to sustain it.

As could be seen on page 3, of the Record of Proceedings transmitted to this Honourable Court on 12th July 2021, by the Court below. The suit number of this case as filed in the Court below is Suit No. ADSY /33/2011. The suit was struck out on 9th November, 2016.

However, as could be seen on page 25, of the same Record of Proceedings, the Respondent himself filed a Motion for Relistment dated 14th November, 2016, and gave the case two suit numbers in their Motion papers, these are ADSY/118M/2016 and ADSY /33/2011.

In the course of trial of the case in the trial Court, as could be seen on page 124 of the Record of Proceedings, the trial Court Judge in its ruling delivered on 24th February, 2017 used Suit No. ADSY /118M/2011.

Furthermore, on page 132 of the Record of Proceedings, the trial Court Judge in its Ruling delivered on 14th March, 2017, again used No. ADSY/118M/2011. Also at page 138, of the Record of Proceedings, the trial Court Judge in his sitting on 11th January, 2017 used Suit No. ADSY/118M/2016. On page 206 of the Record of Proceedings the trial Court Judge when delivering his judgment in this suit used Suit No. ADSY/118M/2016 on is June, 2017.

It is submitted that from the above scenario, the use of inconsistent suit number in the Court below, was never the architect of the Appellant rather it was that of the Respondent himself and the Court below.

Therefore, the Appellant has no hand in determining which suit number the Court below will use to transmit its Record of Proceedings. And if at all this Honourable Court will frown at the use of multiple suit numbers in the trial Court, it is either from the Respondent himself or the Court below as shown in the Record of Proceedings.

Therefore, there is a valid transmission of the Record of Proceedings of the trial Court with suit No. ADSY/33/2011 which the Court below also used in the trial.

Furthermore, as to the addition of the word “Rtd” in the name of the Appellant in the Appellant’s Further Amended Notice of Appeal, because at the time of the trial he was still a serving Judge and during the pendency of this appeal he retired hence his new position only affects the Notice of Appeal, and the Appellant cannot change the record of proceedings of the trial Court to reflect his status because it is still valid and subsisting. The case of Total E & P (Nig) Ltd Vs Jonathan & Anor (2018) LPELR – 44691 (CA), Pages 12 – 13, Paras. C and Ifeteto Ventures Ltd & Anor Vs Enterprise Bank Ltd (2014) LPELR – 23103 (CA) relied upon by the Respondent are inapplicable, this Court is and urged to hold that there is a valid record.

RESPONSE OF APPELLANT ON GROUND TWO
The Respondent raised in his Preliminary Objection that this appeal is incompetent in law, in that the Further Amended Notice of Appeal is filed against a non-existent judgment.

lt is submitted that the above assertion is not true that the Further Amended Notice of Appeal, was against a non-existent judgment, this is because there was valid judgment delivered by the Court below on 19th June,2017. See page 206 of the Record of Proceedings, though on that page 206, the trial Court Judge claimed to have delivered judgment on Suit No. ADSY/118M/2016. This suit number was only introduced by the Respondent himself in his Motion for Relistment dated 14th November, 2016, as could be found on page 25 of the Record of Proceedings, and that the actual Suit number in the Court below as per the Writ of Summons on page 3, of the Record of Proceedings is Suit No. ADSY/33/2011, which the Appellant used in his further Amended Notice of Appeal, which is clearly stated in paragraph 2 of the Further Amended Notice of Appeal. The case of Ndukwe Vs Ndukwe (2015) LPELR – 25604(CA), Nyavo Vs Zading (2016) LPELR – 40803(CA) and African Songs Ltd & Anor Vs King Sunny Ade (2018) LPELR – 46184(CA) are distinguishable and inapplicable to this present appeal and this Court is urged to hold that, there is a valid Appeal, therefore this objection lacks merits and should be discountenanced.

RESPONSE OF APPELLANT ON GROUND THREE
The third Preliminary Objection raised by Respondent is that the appeal is incompetent in law, in that there is no relief whatsoever touching on the judgment being appealed against.

It is submitted on this issue that the Appellant has both in his Further Amended Notice of Appeal dated 11th January, 2021, and filed before this Honourable Court on 11th January,2021, and his Amended Appellant’s Brief of Argument dated 7th January, 2022, and filed 7th January, 2022, sought for reliefs from this Honourable Court in this appeal, and therefore it is not true that, the Appellant never sought for reliefs before this Honourable Court. The case of Fayemi & Anor Vs Oni & Ors (2010) LPELR – 4145(CA), Pages 99 – 100, Paras. G and U.O.O (Nig) Plc Vs Okafor & Ors (2016) LPELR – 41507 (CA), Pages 34 – 37, are also irrelevant. RELIEFS SOUGHT from the Further Amended Notice of Appeal:
1. AN ORDER allowing the appeal
2.AN ORDER dismissing the claim of the Respondent in the Court below, while the reliefs in the Brief of Argument is contained at page 17 of the Appellant’s Amended Brief of Argument.

RESPONSE OF APPELLANT ON GROUND FOUR
In response to Preliminary Objection on Ground four, that Grounds 1, 2 & 5 of the Grounds of Appeal, as well as issues 1, 2 & 5 distilled therefrom are incompetent, in that they are complaints which oscillate outside the scope/purview of the Further Amended Notice of Appeal.

It is submitted that Grounds 1, 2 & 5 of the Grounds of Appeal, as well as issues 1, 2 & 5 distilled therefrom, are competent and can be looked into by this Honourable Court, and it is within the scope/purview of the Further Amended Notice of Appeal, which complains about lack of fair hearing, being meted on the Appellant to the extent of denying his right to put a defense in the matter, or allowing him to file his Witnesses Statement on Oath, and frontloading of his documents as provided by Order (1) Rule (2)(1)(c)(d) of the High Court Civil Procedure Rule, 2013 which were enforced at the commencement of trial of this suit.

Learned counsel submitted that fair hearing connotes or involves a fair trial, which invariably consists of the whole hearing. This right cannot be waived or statutorily taken away. See Ovunwo Vs Woko (2011) All FWlR (PT. 1) 587-796 & 603 paragraphs 5. The apex Court went further to say that where a person alleging breach of fair hearing has been established, it follows that a breach of fair hearing in trial vitiates such proceedings rendering same null and void. See Usan Vs Audi (2004) 7 NWLR (PT 871) 116.

It is submitted that the Appellant was denied fair hearing by Upper Area Court 2, by not giving him opportunity to be heard. See Odesa VS FRN (2006) 27 WRN page 45 Ratio 10; First Inland Bank Plc Vs Alliance International Nigerian Ltd (2013) Vol. 18 WRN page 106 ratio 6:
“The concept of fair hearing enshrined in Section 36 of the Constitution of Federal Republic of Nigeria, 1999 is founded upon the twin pillars of the natural justice rule, the parties must be given equal opportunity of being heard Audi-alteram-parten…..”

Consequently, counsel surmised that this Preliminary Objection lacks merit and should be disregarded by this Honourable Court.

RESPONSE OF APPELLANT ON GROUND FIVE
On Preliminary Objection number five, that grounds 2 & 5 of the Grounds of Appeal as well as issues 2 & 5 distilled therefrom, which all are complaints against interlocutory decisions of the trial Court are incompetent in law, in that they were filed outside the 14 days period prescribed by Section 24(2)(a) of the Court of Appeal Act.

It is submitted that Grounds 2 & 5 of the Grounds of Appeal are competent, because they are issues that touch the fundamental human rights of the Appellant, which touches on the jurisdiction of the Court. Once a Court of Law is patently biased especially as shown in this case from the beginning of the trial, to the end of the trial as was shown in this case, the Appellant has the right to complain of lack of fair hearing throughout the trial. See ORUGBO & ORS V. BULARA UNA & ORS. (2002) 11 NSCQR PAGE 537 AT 540 RATIO 3.

It is submitted that from the entire record of proceedings of the Court below, which commenced from 11th January, 2017 from page 198, of the Record of Proceedings to page 210 of the Record of Proceedings, when judgment was delivered on 19th June, 2017, there was no fair hearing accorded to the Appellant by the Court below. Even on 19th June,2017, when the judgment was delivered, the Appellant was still having a pending application before the Court, yet the Court disregarded this application and delivered its judgment. See Aliko Nig Ltd Vs ACCMU Ltd (2004) AFWLR Pt. 210. The Appellant was denied fair hearing when the trial Judge refused to hear the Appellant’s Motion, and make a ruling on it. Therefore this ground alone can sustain the appeal.

Therefore, this Preliminary Objection should be disregarded, this Court should hold that grounds 2 & 5 of the grounds of appeal, and the issues distilled therefrom are competent, and should be considered by this Honourable Court.

RESPONSE OF APPELLANT ON GROUND SIX
On preliminary objection number six, that grounds 1, 2 & 5 of the Grounds of Appeal as well as issues 1, 2 & 5 distilled therefrom are incompetent, as they do not arise from the judgment of the trial Court, being appealed against.

It is submitted that Grounds 1, 2 & 5 of the Grounds of Appeal are competent, and they are derived from the Record of Proceedings of the trial Court, and indeed even from the judgment of the trial Court from pages 206 to 207, the Court held thus:-
“On 12th June, 2013 when matter first came up before me, counsels to Plaintiff Akamode and the Defendant Ma’azu Bamanga, sought and obtained leave of Court to adopt their earlier processes filed as proper before the Court i.e. the writ of summons, statement of claim and statement of defence. The matter was then adjourned for hearing. For unforeseen reasons, the matter did not come up again before the Court not until 8th March, 2016. Aboyomi, counsel to Plaintiff and AjiKamale Counsel to Defendant on that date sought land obtain leave of Court to file new processes before the Court (i.e. deposition of witnesses on oath) in accordance with the new Rules of Court that came into effect in 2013.
Consequently, the matter was adjourned as prayed. At the adjourned date, counsel to Defendant EI- Yakub told the Court that he is yet to file the deposition of Witnesses Statement on Oath and instead made an oral application to withdraw his appearance for the Defendant.
The Court refused and instead advice the Counsel to come by way of motion on notice.
The Counsel to Defendant then came by way of motion on notice where he withdrew his appearance for Defendant. The Court then had to adjourn the matter to enable defendant secure service of a new Counsel.
After series of adjournments as the matter could not go on, this Court suomutu struck out the case for lack of diligent prosecution.
On 11th January 2017, the matter was relisted back to the general cause list.
Upon the relistment of the matter, the Defendant secured the service of a Counsel G.E. Akpanamasi Esq.”

For example, the Appellant Counsel G.E. Akpanamasi Esq., on 4th May, 2017, at page 201 and 202 when the case came up for hearing, learned counsel for the Appellant told the Honourable Court that he is not ready for hearing, and that he has an application which was to file the written statement on oath which the trial Court Judge denied, despite the fact that it was the same Judge that ordered that the case should comply with the new rules of the High Court as noted by him in the above quoted judgment.

It is submitted that the same principles apply to Ground 2 of the Grounds of Appeal, where on page203, of the Record of Proceedings of the trial Court where learned counsel for the Appellant asked for a date to examine the sole witness of the Respondent, and was objected to by the counsel to the Respondent, and the trial Court Judge upheld and overruled the oral application for the cross-examination of the witness.

The Appellant’s counsel filed a Motion on Notice for the trial Court Judge to disqualify himself from trying the matter, but he equally refused. See page 31 to 110 of the Record of Proceedings where the motion papers were filed, yet the trial Court Judge refused to disqualify himself from trying the matter. It is submitted that Grounds 1, 2 & 5 are competent grounds of appeal and the issues derived from there are also competent. This Court is urged to disregard this preliminary objection.

RESPONSE OF APPELLANT ON GROUND SEVEN
Learning counsel on objection seven submitted that ground 4 of the Grounds of Appeal, as well as issue 4 distilled therefrom are incompetent, as they are complaints against the admissibility of documents that are ordinarily admissible in law. Ground 4 of the Grounds of Appeal, and the distilled issues therefrom, is competent in that it is the same Judge as quoted in his judgment above, that ordered the parties should comply with the new rules of the Court, which came into force in 2013. The lower Court on 4th May, 2017 on page 202 of the Record of Proceedings of the Court, allowed his only witness PW1, to testify orally before the Court, without statement on oath and without the documents tendered frontloaded to the appellant, or to the Court which violated Order (1) Rule (2),(1)(c)(d) of the High Court Civil Procedure Rules 2013.

It is therefore submitted that the Appellant has the right to appeal against the violation of this order, and also the order made earlier by the Court (that parties should comply with the new rules).

RESPONSE OF APPELLANT ON GROUND EIGHT
It is submitted on ground eight, that Ground 2, of the Grounds of Appeal, as well as Issue 2, distilled therefrom are incompetent as they were filed without LEAVE even when they are complaints against the exercise of discretion by the trial Court.

It is trite that an application for an adjournment is matter of discretion for the trial Judge, which must be exercised judicially, and judiciously in the interest of justice, however such discretion is appealable where the trial Court fall short of it, leave is not required to Appeal after the final judgment. The case of Onah Vs Okom (20l2) ALL FLWR (Pt. 647) Pg. 703 at 723, Ogunmilua Vs Ashaolu & Anor (2013) LPELR – 22324 (CA), pages 22& 23 Paras. A and Omeru Vs Omame (2020) LPELR – 52426 (CA).

It is submitted that Ground 2, of the Grounds of Appeal and issue 2, derived from it is competent, in that the Respondent tendered documents before the trial Court which were never frontloaded before the Court, and copies given to appellant, contrary to Order (1) Rule (2)(1)(d) which provides that copies of every document to be relied on at the trial, must be frontloaded to the parties. The trial Judge in 2016, ordered the parties to comply with this Rule, yet the trial Court Judge accepted and admitted the documents relied on in this case without it being frontloaded.

This Court is urged to disregard this preliminary objection and hold that, Ground 2 and Issue 2, distilled from it are competent, and should be relied upon by this Honourable in determining his judgment.

RESOLUTION OF PRELIMINARY OBJECTION
I have painstakingly studied the record of Appeal, transmitted to this Court on the 12th July, 2021, deemed properly complied and transmitted on the 25th October, 2021.

Respondents’ counsel in my view, rightly pointed out in ground one, the fact that the record of appeal compiled and transmitted to this Court on the 12th day of July, 2021 by the Appellant, is in respect of Suit No: ADSY/33/2011. Whilst the judgment delivered on 19th June, 2017, on page 206-210 of the Record of appeal, being sought to be appealed is in respect of Suit No ADSY/118M/2016. Appellant in his Further Amended Notice of Appeal, filed on the 11th January, 2021, referred to his dissatisfaction with the final decision of the High Court of Justice Adamawa State, delivered on 19/06/2017 in Suit No. ADSY/33/2011 between David A. Garnvwa v Hon. Justice M.B.Goji. I have carefully perused the record of appeal, l find that there is no judgment delivered on 19th June, 2017, in the record of appeal. It therefore goes without saying that the said Record of Appeal contains a judgment delivered on the 19th June, 2017 in Suit No: ADSY/118M/2016, that is in respect of a different suit, therefore the record of Appeal is vitiated in law.
It was correctly pointed out by Respondent’s counsel that, the Record of appeal transmitted on the 12th July, 2021, ought to have reflected the change in Appellant’s nomenclature which was by the addition of the word “RTD” to his name at the instance of the Court. As the names Hon Justice M.B Goji and Hon. Justice M.B. Goji (RTD) are not one and the same. What this means is that the Record of Appeal, and the extant Notice of Appeal i.e the Further Amended Notice of Appeal both reflect different nomenclature of the Appellant.
The Record of Appeal which was compiled and transmitted to this Court by the Appellant on the 12th July, 2021 is incompetent in law, therefore incapable of sustaining Appeal No: CA/YL/159/2017, as same is in respect of a suit totally different from the judgment being purportedly appealed against.
Premised on the above contention, the effect therefore is that Appeal No: CA/YL/159/2017 is incompetent in law, as it has no competent Record of Appeal to sustain it. The law is that an incompetent Record of Appeal cannot sustain an appeal. This Appeal No. CA/YL/159/2017 devoid of a competent record of appeal cannot stand, it must be struck out.
The Appellant must in his Notice of Appeal state correctly the number of the suit he is appealing against as well as the parties. The argument of the Appellant’s counsel that, there is a valid record of proceeding to sustain this appeal is not tenable. The record of appeal transmitted to this Court on the 12th July, 2021 pursuant to Appellant’s Further Amended Notice of Appeal, deemed properly compiled and transmitted to this Court on the 10th May, 2022, is very clear that it is in respect of Suit No: ADSY/33/2011. Whereas in the record of appeal transmitted to this Court on 12th July, 2021, there is no judgment delivered on 19th June, 2021, in Suit No. ADSY/33/2011 between David A. Garnvwa v Hon. Justice M. B. Goji. The Respondent stated the correct position of the law, that Appeal No: CA/YL/159/2017 is incompetent in law, as it has no competent valid record of appeal to sustain it. This is to stay that the appellant is not properly before this Court having failed to satisfy the necessary pre-condition for him to be before us. This appeal cannot in the circumstances stand, given the absence of a valid record of appeal.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft judgment of my learned brother, FATIMA OMORO AKINBAMI, JCA. His Lordship has comprehensively resolved the preliminary objection, I adopt his conclusion arrived at as mine in upholding the preliminary objection with nothing else to add. The appeal is incompetent and it is accordingly struck out.

I abide by the order made by my learned brother as to costs in the leading judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, FATIMA OMORO AKINBAMI JCA. The issues formulated in the appeal have been exhaustively dealt with by my learned brother. I agree that the appeal is incompetent and should be struck out. It is hereby struck out by me. I have nothing more to add.

Appearances:

EVARISTUS PAUL, ESQ. For Appellant(s)

J. A. OGUCHE, ESQ. For Respondent(s)