Legalpedia Citation: (2024-02) Legalpedia 64284 (CA)

In the Court of Appeal

Holden At Makurdi

Fri Feb 16, 2024

Suit Number: CA/MK/159/2012

CORAM

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

PARTIES

1. MR. CHIDIEBERE EWA(Alias CHIDI IMO)
2. MRS PRECIOUS CHIDIERBERE (Alias PRECIOUS CHINASA IMO)
3. ONYEKA CHRISTIAN
4. CLEMENT MBASOOR
5. OSITA SUNDAY
6. EZE KELECHI

APPELLANTS

1. ADOGBER OLOHI (GOOD NEIGBOURSTHRIFT AND CREDIT COOPERATION SOCIETY LTD)
2. ICHIMA ATHANISUS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondents, as Claimant before the lower Court, claimed that the Appellants had borrowed the sum of N4,500,000.00 at the interest rate of 10%, but after the initial repayment of the due interest charges, stopped repayment of the loan. Consequently, a 10% monthly compound interest, as agreed between the parties, was charged on the loaned sum from 19/9/2010 to 28/2/2011, resulting in the principal and interest standing at N4,831,690.00, which was due paying to the Respondent from the Appellants.

The Appellants denied the claim of being indebted in the sum of N4,831,690.00 as claimed by the Respondents but admitted that they applied to borrow the sum of N4,500,000.00 from the Respondents. They maintained that they have repaid the loan to the Respondents but that the 2nd Respondent failed to record some of the repayments made to the 1st Respondent through him. See pp. 31 – 38 of the Record of Appeal.

The lower Court delivered its judgment in which it granted the claims of the Respondents against the Appellants in the sum of N4,314,250.00 with post-judgment interest at the rate of 10% per annum. It also Ordered that the property which was tendered as security for the loan be sold under the supervision of the Registrar of the lower Court to recover the debt in accordance with the agreement of the parties.

The Appellants were aggrieved with this judgment hence the instant appeal.

 

HELD

Appeal allowed

ISSUES

1.Whether Grounds 3, 4 and 6 of the Amended Notice of Appeal and issues 1 and 5 founded thereon are valid in the light of the failure of the Appellants to seek the leave of this Court to raise them as fresh issues and whether this appeal is competent in the light of the failure of the Registrar of the lower Court to certify the Record of Appeal compiled by the Appellants?

2. Whether the Respondent, having not initiated the Suit by the due process of the law, the lower Court was therefore, without the requisite jurisdiction to hear and determine the said suit, which was therefore, liable to be struck out?
3. Whether the lower Court was right to have entered judgment for the Respondent in an amount not claimed and/or for the Claim which is in the nature of Special Damages that was not specifically pleaded and or specifically proved?
4. Whether the Appellants by their evidence established that they have repaid the loan plus the interest therefore, entitling them to the dismissal of the Claims?
5. Whether the lower Court was right in not relying on Exhibit 11 to show that the Respondents have admitted therein that the Appellants paid the sums of N760,000. 00 and N950,000.00 on the 24/06/2010 and 18/07/2010 respectively?
6. Whether the lower Court was right to admit in evidence and/or rely on Exhibit 2 to grant leave to the Respondents to sell the property of the Appellants?

RATIONES DECIDENDI

ISSUE – WHERE A RESPONDENT’S ISSUE FOR DETERMINATION IS NOT PREDICATED ON ANY OF THE GROUNDS OF APPEAL OF THE APPELLANT AND THE RESPONDENT DID NOT FILE ANY NOTICE OF CROSS APPEAL

My lords, having considered the submissions of counsel for the parties, and having taken time, one more, to look critically at the entire Eight Grounds of Appeal as contained in the Appellants’ Amended Notice and Grounds of Appeal, it is clear to me, and I so hold, that Respondents’ issue one does not arise from any of the Appellants’ Eight Grounds of Appeal, taking into cognizance the fact that the Respondents did not file any Notice of Cross – Appeal in this appeal. In law, a Respondent who has not filed a Notice of Cross – Appeal and or a Respondent’s Notice of intention to contend, is not at liberty to raise issues not arising from the grounds of appeal as filed by the Appellant, as all such issues would be discountenanced as going to no issue. He must therefore restrict and delimit his issue within the remit of the grounds of appeal as filed by the Appellant. See Association of Senior Civil Servants of Nigeria & Ors V. JUSUN & Ors (2014) LPELR – 24185 (CA).

My lords, at the hearing of this appeal on 17/1/2024, the Notice of Preliminary Objection, which appears to be the only basis on which the Respondents could have based the arguments of their issue one, was withdrawn by the learned counsel for the Respondents and was consequently, struck out by this Court. In law, that should signal the end of the Respondents’ issue one, and I so firmly hold. This is so because in the absence of any ground of appeal or cross-appeal or notice of intention to contend or notice of preliminary objection, the Respondents cannot go outside the Appellants’ grounds of appeal to raise any issue for determination. See Association of Senior Civil Servants of Nigeria & Ors V. JUSUN & Ors (2014) LPELR – 24185 (CA).

Per B. A. Georgewill, JCA

RECORD OF APPEAL – WHETHER EVERY INDIVIDUAL DOCUMENT IN A RECORD OF APPEAL MUST BE DISTINCTLY AND SEPARATELY CERTIFIED

Be that as it may, on the merit, I agree with the apt and unassailable submission of learned counsel for the Appellants that it is not the requirement of law that in a Record of Appeal, copies of every individual document must be distinctly and separately certified, in so far as some of the pages are duly certified. As an unrepentant and unapologetic apostle of substantial justice, I do not subscribe to such extreme technicalities being allowed to ride roughshod over and above the rendering of substantial justice by the Courts to the parties. This has always and will continue to be my stand! See Orders 8 Rule 9 and 25 Rule 3 of the Court of Appeal Rules 2021. See also African Songs Ltd & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA); Mr. Eworimo Isaiah & Ors V. Mr. Osobugha Igoin & Ors (2021) LPELR – 56366 (CA); Fortune Intl Bank Plc V. City Express Bank Ltd (2012) 14 NWLR (Pt. 319) @ p. 86.

Per B. A. Georgewill, JCA

APPEAL – WHETHER WRONGFUL ADMISSION OR REJECTION OF EVIDENCE CAN BE APPEALED ALONG WITH THE MAIN SUIT

In law, such a decision can be, and is so often, appealed against along with the final judgment, should there still be a need to appeal against it. Thus, wrongful admission and or rejection of evidence in the course of a trial is not a decision that unless it was appealed against within 14 days and or with the leave of Court to do so outside the 14 days would render a ground of appeal challenging wrongful admission or rejection of evidence incompetent. In law, a complaint against a decision for wrongful admission or rejection of evidence can be made a ground in an appeal against the final judgment and no prior leave of Court is required to do so. See Yohanna Davou V. Commissioner of Police, Plateau State Command (2019) LPELR – 47034 (CA) @ pp. 13 – 14; Itumo Onwe & Ors V. Nwaogbuinya & Ors (2001) LPELR – 2709 (SC) @ pp. 17 – 18.

Per B. A. Georgewill, JCA

WRIT OF SUMMONS – THE BURDEN OF PROVING THE EXISTENCE OF A WRIT OF SUMMONS

However, in law, the onus was on the Respondents, who were the Claimants before the lower Court, and not on the Appellants, who were the Defendants, to prove even by way of additional Record of Appeal the existence of the Writ of Summons filed by them for the commencement of the Suit before the lower Court. It is not for the Respondents, when confronted with the non-existence of any Writ of Summons as required of them by law for the commencement of their Suit before the lower Court, going by the very clear and succinct Rules of the lower Court, to turn around to rather expect the Appellants to prove the negative that the Writ of Summon was non-existent, as even prima facie shown by the Record of Appeal.

Per B. A. Georgewill, JCA

WRIT OF SUMMONS – WHETHER AN APPLICATION CAN AMOUNT TO A WRIT OF SUMMONS – WHERE A SUIT IS NOT INITIATED BY DUE PROCESS OF LAW

In law, mere application alone or even where coupled with a Statement of Claim, as was glaringly done by the Respondents as can be seen at page 3 of the Record of Appeal, does not and cannot amount to a Writ of Summons and this fact cannot even be defeated by the erroneous reference to Writ of Summons in the judgment of the lower Court in the face of the clear evidence of lack of any Writ of Summons filed before it by the Respondents as Claimants as clearly shown in the Record of Appeal. See Order 2 Rule 1 of the Benue State High Court (Civil Procedure) Rules 2007, now Benue State High Court (Civil Procedure) Rules 2021.

Thus, the competence of a suit would, amongst other factors, depend on its having been initiated by due process of law and upon the fulfilment of conditions precedent to its initiation. In law, the condition precedent for the assumption and exercise of jurisdiction by a Court over the Defendant, such as the Appellants, rest squarely on the issuance of a Writ of Summons and the service of same on the Defendant. See Emadago V. Wichndu (2014) All FWLR (Pt. 710) 1391 @ p. 1404. See also Etubom (Dr.) Anthony Asuquo Ani & Ors V. Etubom Essien Ekpenyong Effiok & Ors (2023) LPELR – 59783(SC) at 71-72, Anthony Tippi V. Sylvester Notani (2014) LPELR-24191 (CA).

Per B. A. Georgewill, JCA

INITIATING PROCESS – WHERE THE INITIATING PROCESS IN A SUIT IS INVALID

Order 2 Rule 1 of the Benue State High Court (Civil Procedure) Rules 2007, now Benue State High Court (Civil Procedure) Rules 2021, provides thus:

“All Civil proceedings commenced by writ of summons shall be accompanied by: a. List of witnesses to be called at the trial; b. Written statement on oath of the witnesses and c. Copies of every document to be relied on at the trial.”

It follows therefore, that in law, the failure of the Respondents, as Claimants before the lower Court, to initiate the proceedings against the Appellants, as Defendants, by means of a Writ of Summons, which they applied for but was not issued, rendered the entire proceedings and judgment of the lower Court delivered on 16/7/2012 a nullity, and therefore, liable to be set aside. See Miss R. A. Bamgboye & Anor V. United Bank for Africa Ltd & Ors (2022) LPELR – 57842 (CA) @ p. 19, where this Court had stated succinctly inter alia thus:

“Failure to initiate a writ or initiating process according to law is fatal and it means the suit is incurable and irredeemably defective…the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders issue of jurisdiction and the competence of the Court to adjudicate on the matter.”

See also Okarika V. Samuel (2013) 7 NWLR (Pt. 1357) 19 @ p. 43; SLB Consortium Ltd V. NNPC (2011) All FWLR (Pt. 583) 1902 @ pp. 1911 – 1912; Tunji Braithwaite V. Skye Bank Plc (2013) NSCQR 1.

In law, such a suit commenced by an invalid Writ of Summons is incurably bad and thus not good for 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 had pronounced with finality inter alia thus:

“It is thus the law that an initiating process whether a 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.”

Thus, there can be no valid action or matter or cause before the lower Court to have been considered on the merit once there was no competent Writ of Summons, which is indeed the life-giving source of competency and validity for the Respondents’ suit before the lower Court to be heard and determined on the merit. It is the spinal cord on which the body of the case of the parties, their pleadings and evidence, lies for its competence and validity. It follows that once the Writ of Summons is incompetent, an action or matter or cause founded on it is likewise incompetent and liable to be struck out. See Mingi Services Ltd V. Imaote (2003) FWLR (Pt. 143) 341 @ p 346; Mokwe V. Williams (1997) 11 NWLR (Pt.528) 309 @ p. 311; Ekpan V. Uyo (1986) 3 NWLR (Pt.26) 63 @ pp. 598- 599; Mohammed V. Kayode (1997) 11 NWLR (Pt. 530) 584 @ p. 590.

Per B. A. Georgewill, JCA

COURTS – CONDUCT OF THE COURT OF APPEAL TO MATTERS NOT INITIATED BY VALID PROCESSES AT TRIAL COURTS – SUBSTANTIAL JUSTICE V. TECHNICALITY –

This Court has the power to strike out a suit, even though filed before the lower Court, and which turns out to be incompetent in an appeal before it. This is so because, once there is no valid Writ of Summons, there is really no basis in law to proceed to consider and resolve an appeal emanating from a decision of the lower Court predicated on an incompetent suit on the merit, since no matter how well reasoned or sound such a judgment on the merit would be, whether of the lower Court or even this Court, 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.”

It follows therefore, in law, once an action or matter or cause is found to be incompetent, that indeed should be the end of the matter, since one cannot put something on nothing and expect it to stand. See Macfoy V. UAC Ltd. (1962) 1 AC 100 @p. 160. See also Babatope & Ors V. Sadiku & Anor (2017) LPELR – 41966 (CA) @ pp. 10 – 14.

My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet, it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as a substantial issue of law. In other – words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Madukolu V. Nkemdilim (1962) 1 All NLR 587. See also African Songs Ltd & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA); P. E. Ltd. V. Leventis Trading Co. Ltd. (1992) 6 SC. (Pt. 1)1 @ pp. 27 – 28; Dangana & Anor. V. Usman & Ors. (2012)2 SC (Pt. 1)3.

Now, what is the proper Order for this Court to make in this appeal having come to the inescapable conclusion the Respondents’ Suit filed before the lower Court, and heard and determined on the merit by the lower Court, was incurably incompetent? In law, the proper Order to make when a Court finds that it lacks jurisdiction is one of striking out such an incompetent process or Suit. See Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503 @ p. 525, where the Supreme Court had per Niki Tobi JSC, (God bless His Soul), reiterated inter alia thus:

“Once a Court lacks jurisdiction, the matter ends there and the only procedural duty of the Court is to strike it out. No more and no less. The position of the law is as hard and as strict as that.”

See also Zerock Construction Nigeria Ltd V. Faplin Nig. Ltd (2022) LPELR – 57504 (CA); Titus Tyonongu Kuma V. The Governor Of Benue State& Ors (2023) LPELR -59610 (CA); Musical Copyright Society of Nig. Ltd. V. NCC (2016) LPELR – 41009(CA) @ pp. 29 – 30; Umaru V. Yahaya (2015) LPELR – 26043(CA) @ pp. 15 – 16; Okarika V. Samuel (2005)7 NWLR (Pt. 924) 36.

Now, there is no doubt in my mind, whether the above position of the law would not amount to sacrificing substantial justice at the altar of technical justice raises a real concern but since without competence there can be no validity in any Court proceedings or judgment thereon, the admonition of the Apex Court in Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 1 is apt, where the Supreme Court per Niki Tobi JSC., (God bless his soul) had on the issue of substantial justice opined inter alia thus:

“The role of the Court is to apply the principles of substantial justice according to law. The principle cannot be applied outside the law or in contradiction of the law. A Court of law will not be performing its role as an independent umpire if it bends backwards to do justice to one of the parties, at the expense of the other party. Justice, that very expensive commodity in the judicial process should be evenly spread between the parties. Where a rule of Court has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation and here the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame.”

Per B. A. Georgewill, JCA

COURTS – CONDUCT OF COURTS WHERE A SUIT IS NOT COMPETENT – THE IMPORTANCE OF JURISDICTION

In my view, and I so firmly hold, issues of competence of a suit and jurisdiction of a Court are issues that transcend issues of mere technicality. So, should this Court, notwithstanding our firm decision that the Respondents’ Suit was incompetent and thereby robbed the lower Court of its jurisdiction, still proceed to consider the respective cases of the Appellants and the Defendants in this appeal on the merit? I think not!

A Court of law need not, with its eyes wide open, embark upon such nullities upon nullities in the name of substantial justice. With the nullity of the entire Suit, proceedings and judgment of the lower Court now staring us in our faces, I think it would be a sheer waste of our time, in such circumstances, and at this stage, to proceed to consider and resolve all or any of the other issues touching on the merit or otherwise of the claims of the Respondents against the Appellants as was heard and determined, without the requisite jurisdiction, by the lower Court. It is a folly which the lower Court, perhaps unadvisedly or inadvertently, fell into, but which this Court must not and will not, and cannot, fall into with our eyes so wide open by reason of and on the strength of the applicable principles of law.

My lords, jurisdiction is a threshold issue and is thus, very fundamental to adjudication as it goes to the foundational competence of any cause or matter or action before the Court. It is the epicentre of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is also regarded as being radical and thus, a sine quo non to adjudication of any matter or action or cause in a Court of law.

It follows therefore, that without jurisdiction, there can be no competence in any Court to exercise its adjudicatory powers over a cause or matter, no matter how meritorious it would have been if considered on the merit. In such a situation, zealousness to do substantial justice, where there is no competence, is not a virtue! It is simply overzealousness. See Madukolu V. Nkemdilim (1962) 1 All NLR 58 @ p. 595. See also AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Zerock Construction Nigeria Limited V. Faplin Nigeria Limited (2022) LPELR – 57504(CA); Tukur V. Maggaji & Ors (2022) LPELR – 59245 (CA); Mr. Jimi Adebisi Lawal V. Peoples Democratic Party & Ors (2022) LPELR – 58813 (CA); Union Bank Of Nigeria Plc V. Estate Of Late Clement Ogeh (2018) LPELR – 46701(CA). – Per B. A. Georgewill, JCA

JURISDICTION – WHETHER A COURT CAN DECIDE THE MERIT OF A CASE THAT INCOMPETENT

A Court cannot, in my view, decide the merit of a case that is incompetent and has robbed it of its jurisdictional competence. – Per B. A. Georgewill, JCA

COURTS – CONDUCT OF COURTS WHERE THE CASE FILED BEFORE THE LOWER COURT WAS INCOMPETENT

It is glaring that the Respondent’s case filed before the lower Court was incompetent as the initiating process, i.e., the writ of summons, which is indeed the spinal cord of the action as rightly observed by his Lordship in the lead judgment, is invalid. There is nothing to do in the circumstance as you cannot put something on nothing and expect it to stand. Macfoy vs UAC Ltd (1962) AC 100 at page 160. – Per I. W. Jauro, JCA

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Act 2004
2. Court of Appeal Rules 2011
3. Court of Appeal Rules 2021
4. Benue State High Court (Civil Procedure) Rules 2007
5. Benue State High Court (Civil Procedure) Rules 2021.
   

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