Emmanuel Okafor & 2 Ors v. Augustine Nweke & 3 Ors

This twenty-two (22) year old appeal emanated from suits/cases filed in the years 1955 and 1959 in the then High Court of South-East of Nigeria at Onitsha, (trial Court) as suits Nos: 0/72/1955, 0/120/1955 and 0/144/1959 in respect of the title and ownership of a piece of land called “Agbagolu”, Agba-Olu” or Mpiti”” situated at Akwa in Ifete Dunu, in Njikoka Local Government Area of Anambra State (now).

The appeal is a direct offshoot of the suit No. 0/114/1959 instituted by the Appellants’ forebears before the trial court which, as borne out by the record of Appeal at page 77, was tried on the basis of the Further amended Statement of Claim dated 15th April, 1993, filed on the 20^th April, 1993. The joint and several claims against the Respondents in paragraph 17 thereof were for the following reliefs:-

P.1

“() Declaration that the plaintifjs are entitled to a customary right of occupancy over their “Agbogolu'” land verged red on plan No. AGLS/AN/35/92.

(i) An order of injunction restraining the defendants, their servants and agents from entering or remaining on the plaintiffs “Agbogolu'” land verged red on the plan No. AGLSIAN. 35/92 or from doing anything thereon or from in any way whatsoever interfering with the plaintiff’s rights of ownership and possession over the said land,”

The 1 set of Respondents denied the claims and joined issues with the Appellants while the 2nd set of the Respondents neither filed pleadings nor participated in the proceedings of the case.

The Appellants called eight (8) witnesses and tendered copies of documents as Exhibits in support of their case, while the 1st set of Respondents called one (1) witness in defence and also tendered documents in support thereof.

At the end of trial, judgment was entered in favour of the Appellants/Plaintiffs on 9h April, 1998 in the following terms:-

“Accordingly; judgment is entered for the plaintiffs against the defendants jointly and severally as per paragraph 17 of their further amended statement of claim dated the 15h day of April, 1993 and filed on the 20 day of April, 1993 set out at the beginning of the judgment.

The shall be costs to the plaintiffs assessed at N10,000 (Ten Thousand Naira) only.”

Dissatisfied with the judgment of the trial court, the 1 set of Respondents approached the Court of Appeal, Enugu Division (court below) by way of

P.3

– an appeal, notice of which was filed on the 22nd June, 1998, containing two (2) grounds of appeal.

Further/Additional Grounds of appeal were filed and after hearing the parties to the appeal, the court below, in the judgment delivered on the 25th January, 2001, allowed the appeal and set aside the decision/judgment of the trial court on the main ground that the suit of the Appellants/plaintiffs was in/and an abuse of the court process in view of and in relation to the pending suit No. 0/120/1955. The Appellants/Plaintiffs suit No. O/114/1959 was struck out “as a gross abuse of judicial process”.

The Appellants were aggrieved by the above decision/judgment of the court below and so brought this appeal vide the Notice and Grounds of Appeal filed on the 2d April, 2001, which was amended by the Amended Notice of Appeal filed on the 7th September, 2020.

In the Amended Appellants’ Brief filed on the same 7h September, 2020, deemed on the 18 February, 2022, an issue is raised for determination from each of the six (6) grounds contained thereon, as follows:

P.4

“1. Was the Court of Appeal right in holding that Suit No. O/114/59 was an abuse of the process of the Court?

2 Was the Court of Appeal right in holding that the plaintiffs- appellants should have waited until the determination of Suit No. 0/72/55 before instituting Suit No. 0/114/59 and that instituting the said Suit No. 0/114/59 at the time they did constituted another abuse of the process of the Court or contempt of the Court?

3. Was the Court of Appeal right in its conclusion that the plaintiffs-appellants instituted Suit No 0/120sS?””

4 Was the Court of Appeal right in holding that the learned trial judge was not justified in relying on the evidence of the plaintiffs-appellants’ witnesses, particularly P. W.3 and P.W. 4, and that he did not give due regard to the documentary evidence in the cases?

5. Whether the Court of Appeal was right to consider issues arising from the defendants/respondents’ additional grounds of appeal at the Court below and the argument based thereon to allow the appeal, whereas the said additional grounds of appeal is a nullity and the Court of Appeal lacked the jurisdiction to consider same?
6. Whether the Court of Appeal was not wrong when it heard and allowed the defendants-respondents’ appeal at the Court below whereas it lacked the jurisdiction to consider the defendants- respondents brief of argument in the Court as it is invalid, null and void?”

According to the learned counsel who settled the Respondent’s Brief in Reply to Appellants’ Amended Brief, filed on the 25h March, 2022, the issues for determination on the Record of Appeal ought to be:

Whether the main Appeal as constituted in the Amended Notice/Grounds is not incompetent?

P.5

ii What is the status of Counsels’ Brief of Argument in an Appeal in relation to the Courts jurisdiction to entertain an Appeal? OR Put in other words.

Did the lower Courts considerations based on our Appellants issues Nos (i) & (iii) (on evaluation by the trial Court) offend in any manner the jurisdiction of that Court to entertain the appeal as filed?

iii. Was the lower Court right in holding that the Appellants Suit No 0/114/59 constituted an abuse of judicial process?

1. Was the lower Court wrong in castigating the evidence of PW3 and PW4 in the light of the welter of documentary evidence canvassed in the proceedings”

The Appellants filed an Amended Reply Brief on the 8h December, 2022 which was deemed at the hearing of the appeal on the 21st October, 2024.

The 2nd set of Respondents did not file a Brief of Argument in the appeal.

The 1s set of Respondents to the appeal, not satisficed with a part of the judgment/decision of the court below, brought a Cross Appeal, with the leave of court by the Notice of Cross Appeal filed on the 10th March, 2009.

I would deal with the Cross Appeal after a determination of the main appeal.

Before a consideration of the issues raised in the main appeal, the 1st set of Respondents have filed a Notice of Preliminary Objection on the 11^th October, 2021 challenging the competence of the Appellants’ Notice of

P.6

Appeal at page 216 – 219 of the Record of Appeal on, essentially, the ground that no Address of Service was provided thereon for the 2nd Set of Respondents who are parties to the appeal.

The arguments, as contained at page 4 – 9 of the Respondents Brief in Reply to the Appellants’ Amended Brief, are to the effect that the Amended Notice of Appeal filed on the 1st February, 2022 which was predicated on the Notice of Appeal at page 216 – 219 of the Record of Appeal is incompetent for failure to endorse or provide the Address for service thereof, on the 2nd set of the Respondents, as mandatorily required under Order 8, Rule 2 (1) and Order 2, Rule 4 of the Supreme Court Rules, 2012. The cases of the Ihedioha v. Okorocha (2020) 8 WRN, 137 and Odey v. Alaja (2021) 22 WRN, 1 are relied on and the court is urged to uphold the objection and strike out the Notice of Appeal.

In the Appellants’ Amended Reply Brief, it is said that the 1^st set of Respondents, as Appellants in the court below did not provide Address for service on the 2nd set of Respondents; who were indicated to be Defendants” in the appeal and that the judgment of the court below also

P.7

shows the 2nd set of Respondents as 2nd set of“ Defendants.” Pages 108– 110 and 114 – 118 of the Record of Appeal are referred to and it is contended that the Appellants cannot unilaterally alter the parties as constituted in the judgment of the court below. On the authority of Total Upstream Ltd. v. A. I. C. Ltd. (2016) 2 NWLR (pt. 1497) 467 and Apeh v. PDP (2016) 7 NWLR (pt. 1510) 153 at 174, among other cases, as well as Order 2, Rule 8 of the Supreme Court Rules which require that all processes to be filed in the court must reflect the same title as that in the court below. Also, relying on Zakari v. Mohammed (2017) 17 NWLR (1594) 181 at 23 1, Chime v. Chime (2001) 3 NWLR (pt. 701) 527 at 542 and Vab Pet. Inc. v. Momah (2013) 14 NWLR (pt. 1374) 284 at 316, learned counsel submitted that the 1st set of Respondents cannot complain for another party who is represented in the appeal. The cases of Ihedioha v. Okorocha (supra) and Odey v. Alaga (supra) are said to be inapplicable to the appeal because Addresses for service on the only Respondents in the said appeals were not provided.

The court is urged to overrule and dismiss the objection.

P.8

Resolution:

Without the need to waste verbiage, I would say that the learned counsel for the Appellants is right that the 1″ set of Respondents, through their counsel, cannot be seen and heard to complain for and on behalf of the “SECOND SET OF DEFENDANTS”, as contained on the judgment of the court below, against which the Appellants have brought this appeal, who are properly represented by counsel in this appeal; Mr. Akorede Habeeb Lawal, Esq. Counsel for the 1st set of Respondents; the objector, cannot act for and party to an appeal whose instructions and authority he does not have and who is duly represented by another counsel in the appeal.

In additional, the essence of the provisions in Order 8, Rule 2 (1) of the Supreme Court Rule, 2014, pursuant to which the Amended Notice of Appeal was filed, was for all parties directly affected by an appeal in this court to be given adequate and reasonable notice of the appeal in order to enable them know the nature of the material issues to be canvassed in the appeal for them to prepare for the hearing appeal in line with the

P.9

requirements of the Constitutional right to fair hearing, provided for and guaranteed in Section 36(1) of the Constitution. Because the Rules of any court in Nigeria are primarily enacted to ensure certainty in procedure, fair, expeditious and effective conduct of judicial proceedings for the purpose of attainment of substantial justice in matters that come before the courts; and therefore mere aids or/and maids which assist the courts to achieve that primary objective, in appropriate situations or circumstances, strict interpretation and application which tend to frustrate or defeat the substantial justice of a case would not, or better, should not be adopted by the courts. In the present appeal, despite or in spite of the absence of the endorsement of an address for service of the Notice of Appeal on the 2^nd Respondents on the said Notice of Appeal as proved for in the Rules of the court, the 2nd set of Respondents have become aware of the appeal, somehow, and are represented by a counsel, in the appeal, thereby satisfying the requirements of the right to fair hearing as parties directly affected by the appeal and for the judgment therein to be legally binding on them.

P.10

In the above premises, I find no merit in the objection which simply seeks to achieve a technical knockout at the expense of the hearing and determination of the appeal on the merit.

It is dismissed, See Solanke v. Somefun (1974) 1 SC 141 at 148, Univ. of Lagos v. Aigoro (1985) 1 NWLR (pt. 2) 143 at 154, Nneji v. Chukwu (1988) 6 SCNJ, 132, (1988) 3 NWLR (pt. 81) 184 (SC), UTC v. Pamotei (1989) 2 NWLR (pt. 103) 244 (SC), Alsthom v. Saraki (2000) FWLR (pt. 28) 2267 (SC).

I now proceed with the issues raised in the Briefs of Argument.

For the main appeal, the issues raised by the Appellants, who are the complainants before this court would be used in the determination of the appeal. In doing so, issues 1, 2 and 3 all dealing with the issue of abuse of court process, are to be considered together.

Issues 1, 2 &3 of the Appellants as a reminder, are in the following terms:-

“1. Was the Court of Appeal right in holding that Suit No. OM14/59 was an abuse of the process of the Court?

P.11

2 Was the Court of Appeal right in holding that the plaintifs- appellants should have waited until the determination of Suit No. 0/72/5S before instituting Suit No. 0114/59 and that instituting the said Suit No. 0/114/59 at the time they did constituted another abuse of the process of the Court or contempt of the Court?

3. Was the Court of Appeal right in its conclusion that the plaintiffs-appellants instituted Suit No 0/120/55?”

Appellants’ Arguments on the issues

It is submitted that for the suit No. 0/114/1959 to be an abuse of the court process, it must be proved that the suit No. 0/120/1955 was pending when it was instituted and that the parties and subject matter were the same in both cases.

Paragraph 15 of the Appellants’ Further Amended Statement of Claim at page 4 of the Record of Appeal was referred to along with the evidence of PW3 at page 26 lines 29-34 of the Record of Appeal on the fact the suit No. 0/114/1959 was commenced after the Appellants’ application to join suit No. 0/72/1955 was refused by the trial court. It is contended that PW7 never testified specifically on suit No. 0/120/1955 as all he said in his evidence was that the Exhibits tendered during the first unconcluded hearing of suit No. 0/114/1959, including Exhibit ‘D’, could not be traced

P.12

after the Civil War. Learned counsel for the Appellants argues that failure by the Respondents to tender the writ of summons, statement of Claim, Statement of Defence e.t.c, in suit No. 0/120/1955 in proof of the parties, subject matter and issues therein, to be the same as in suit No. 0/114/1959 was failure to show abuse of court process and sufficient for the presumption, under section 167 (d) of the Evidence Act, 2011, that if such documents were produced, they would be unfavourable to them. He maintained, citing page 195, lines 22 -23 of the Record of Appeal, that it cannot rightly be said that suit No. 0/120/1955 was pending at the hearing of the suit No. 0/114/1959 or that it was instituted by the Appellants and so the court below wrongly associated Exhibit D’ with suit No. 0/120/1955 which led to the conclusion that the suits were between the same parties and on same subject matter.

Then, relying on, inter alia, Duru & Ors v. Onwumelu & Anr. (2001) 18 NWLR (pt. 746) 672 at 694-695 and Onwu & Ors v. NKa & Ors. (1996) 7 NWLR (pt. 458) 1 at 18, on the principle of estoppels by standing by, it is submitted that the Appellants rightly instituted suit No. 0/1 14/1959

P.13

– which their application to join in suit No. 0/72/1959 was refused instead of waiting for the determination of the suit in which they were not parties.

1^st set of the Respondents’ Arguments

The arguments are made under issue III of the Respondents (as set out  above) and to the effect that the Appellants were deemed to have admitted the facts in the Respondents’ 2nd Further Amended Statement of Defence before the trial court on the existence of suit No. 0/120/1955 or No. 0/120/1956 (sic) which they did not deny. Reference was made to Civil Procedure in Nigeria, 1990 (MUJ Publishers, by Fidelis Nwadialo, SAN, chapter 21, paragraph 21.02 on page 324 -325 and it is submitted that since the existence of the suit, the parties, and the subject matter in suit No. 0/120/1955 or No. 0/120/1956 were deemed admitted by the Appellants at the trial, there was no need for the Respondents to have tendered the processes in the suit to prove these facts. Reliance was placed on pages 93, line 4 to page 94 lines 1-3,95 and 196- 197 of the Record of appeal as well as the case of Adeogun v. Akinyemi (2020) 24 WRN, 1 at 24 – 25 for the argument that the duty was on the Appellants

P.14

to adduce evidence that the suit in question was aborted and not pending before they instituted the suit No. 0/114/1959 between the same parties and in respect of the same subject matter. The case of Mezu v. Co. Ops.  & Comm. Bank Nig. Plc (2013) 3 NWLR (pt. 1340) 188 was cited on the law on the principle of estoppel on admission against interest by a party.

Appellants’ Reply Arguments:

It is contended that the paragraphs of the Respondents’ 2nd Further Amended Statement of Defence relied on by the Respondents were in answer to the Appellants’ paragraph 15 of their Further Amended Statement of Claim and did not raise new issue that called for a Reply to merely deny them. That a Reply was not necessary, on the authority of Akeredolu v. Akinremi (1989) 3 NWLR (pt. 108) 164 at 172 and Obot v. C.B.N. (1993) 8 NWLR (pt. 310) 140 at 159, It is the case of the Appellants that the parties had joined issues on the facts in the Respondents’ 2nd Further Amended Statement of Defence and so they had to prove that suit No. 0/120/1956 existed, between the same parties and on the same subject matter since declarations of right are not made either

P.15

on admission or default of defence, relying on Okhuarobo v. Aigbe (2002) 9 NWLR (pt. 771) 29 at 54 and Section 132 of the Evidence Act, 2011.

Other arguments on the issue are further or additional submissions by the Appellants and not answers or response to any fresh or new points raised in the Respondents’ Brief.

Resolution:

The term or phrase “abuse of court process” is such an omnibus and multifaceted one that is of infinite variety, depending on the peculiar circumstances and facts of a case or cases.

Abuse of court process or abuse of judicial process, as it is sometime called/named, is, generally, the deliberate or improper use of the judicial process a court of law, which is wanting in bonafide, frivolous, vexations and oppressive by litigants for the main purpose of perverting the course and administration of justice by the courts. Abuse of court process always involves some desire, deliberateness and malice on the part of a litigant to mis-use and pervert the smooth system of administration of justice to the

P.16

and annoyance or/and intimidation of opponents. It may manifest itself in so many ways, but the commonest form or way of abuse of court process is the institution of multiple actions or cases against the same party or parties, on the same subject-matter and substantially, the same issues.

In the famous case of Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188, this court; per Karibi-Whyte, JSC, gave an illuminating exposition of the nature and concept of abuse of court process, as follows:-

“The concept of abuse of judicial process is imprecise. It involves and condition circumstances and situation of infinite variety and conditions. Its one common feature is improper use of the judicial process by a party in litigation to interfere with due administration of justice. It is recognized that the abuse may lie in both a proper or improper use of the judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same meet matter against the same opponent on the same issues.

The multiplicity of actions on the same matter between the same parties even when there exists a right to bring the action is regarded as abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se. ”

P.17

See also Okafor v. A. G. Anambra State (1991) 6 NWLR (pt. 2000) 659, Olawore v. Olanrewaju (1998) 1 NWLR (pt. 534) 436 at 455, N.V. Scheep v. M.V. “SARAZ” (2001) FWLR (pt. 34) 543 at S69, Jonpal v. Afribank (2003) 8 NWLR (pt. 822) 290, I. N. M. B. v. U.B.N. (2004) 12 NWLR (pt. 888) 599).

From the authorities, multiplicity of actions or cases, as a specie of abuse  of the court process, occurs where and when it is satisfactorily shown that:-

(a) Two (2) or more actions are simultaneously and one after another,  initiated commenced or filed before one or more courts by the same plaintiffs or party/parties;

(b) That the actions are against the same Defendant/s or party/parties;

(c) The actions are on the same subject matter/s and

(d) The actions involve and raise the same issues or questions to be determined by the court/s between the parties.

The abuse arises from the initiation or commencement, subsequently, of another or other suit/s against the same parties, on the same subject matter

P.18

and issues as in an earlier valid action properly pending before or in a competent court of law. It is the later or subsequent action that constitutes the misuse or improper use or employment of the judicial process of a court in relation to the earlier pending action before the court.

The party alleging or making the allegation of an action being in abuse or an abuse of the court process awes the burden of proving the assertion or allegation by dint of the provisions in Section 131, 132 and 133 (1) of the Evidence Act and Ibrahim v. A.P.C. (No. 1) (2019) 16 NWLR (pt. 1699) 444 (SC), N.I.W.A, v. S.P.D.C.N. Ltd. (2020) 16 NWLR (pt. 1749) 160 (SC), Lokpobiri v. Ogola (2016) 3 NWLR (pt. 1499) 328 (SC), A. G. Kwara State v. Lawal (2018) 3 NWLR (pt. 1606) 266 (SC).

The pertinent question that now arises is whether the Respondents, who were the Appellants in the court below and who made the initial allegation that the suit No. 0/114/1959 constituted an abuse of the judicial processes of the trial High Court, in relation to the earlier suit No. 0/120/1955, did satisfactorily, show or prove the requirements for the abuse of court

P.19

process as stated, restated and enunciated in the judicial authorities referred to earlier.

As a reminder, the conjunctive requirements are that the subsequent suit must be between the same parties, on the same subject matter and same issues as an earlier competent and pending suit before the same or other court/s of competent jurisdiction.

In the judgment appealed against, the court below, at pages 192 – 193 of the Record of Appeal, stated that:-

“There were thus at Onitsha High Court at least three suits instituted against the present appellants as follows:-

(1) Suit No. 0/72/55 instituted against them by the 4th and 5^th defendants (2nd set of defendants);

(2) Suit No. 0/120/55 instituted against them by the present plaintiffs/Respondents, following the arbitration by the Dunu-Kofia improvement League which Was inconclusive; and

(3) The present suit No. 0/114/59, also instituted against them by present plaintiff/Respondent when the High Court refused to join the present Respondent in suit No. O/72/55.”

P.20

Then, after a review of the arguments of Learned Senior Counsel for the parties, found, inter alia; at pages 195 -197 ofthe Record of Appeal, that:-

“I have carefully considered all the arguments canvassed above by learned Senior Advocates on both sides and have no doubt in mind from the pleadings of both parties at the court below, that suit No. 0/20/55 was actually instituted the plaintifs/respondents herein, after the traditional arbitration by the Dunukofia Improvement League. At para of plaintiffs/Respondents’ “Further Amended Statement of claim” at p. 04 of the records it was stated as follows:-

“The Minutes Book of the Donukofia Improvement League containing the record of the proceedings of the arbitration was tendered by the Plaintiffs as Exhibit. “D” at the first unconcluded hearing of this case at the High Court, Onisha after the Nigerian Civil War Exhibit. “D” could not be found as the records of the High Court, Onitsha, as well as the Exhibits or the said court which were kept in one of the buildings in the premises of St. Charles Borromeo Hospital, Onitsha, were either burnt or destroyed by military action during the Nigeria Civil War.”

“The Defendants/Appellants on the other hand were more forthcoming in their pleadings and gave more details of the suit in question in paragraph 15 of their “2nd Further Amended Statement of Defence as follows:-

“15. In 156, (sic) the plaintiffs took out an action in suit No. 0/120/55 against the defendants over the same piece of land claimed by the 4th and 5h Defendants in suit No. 0/72/55. The said suit is still pending in the Onitsha High Court.”

P.21

There was also an averment at the last sentence of para 16 that:-

“the Plaintiffs despite the fact that they appeared to testify for the 4th and 5h defendants Brought sit No. 0120/55 for trespass against the Defendants,”

I was argued by the learned Senior Counsel for the Respondents that Appellant should have obtained records of the cases concerned from the Courts Registry to tender in court to show that they were between the same paties, and in respect of the same subject-matter.”

The court below concluded at page 198 – 199 of the Record of Appeal, that:-

“In view of the foregoing, it must be emphasised that t is not the existence or pendency of a previous suit that causes a problem. Rather it is the institution of a fresh action between the same parties and on same subject matter, when the previous suit not yet been disposed of that constitutes the abuse of process of court, In the instant case, it is the institution of suit No. 0/114/59, when suit No. 0/120/55 has not yet been disposed of that constitutes the abuse of process. “”

As can easily be seen above, the suit No. 0/72/1955 was said to have been instituted, not by the Appellants here, but by the 4th and 5th Defendants (2nd set of Respondents in this appeal) against the 1 set of Defendants/Respondents in this appeal. The case of the Appellants here was that while that suit was pending before the trial court, their application for joinder as parties having interest in the matter, was refused by the trial

P.22

court and that was the reason for filing the later suit No. 0/120/1955 in order to protect the said interest in the subject matter of the suit. By the pleadings in paragraphs 1, 2 and 3 of the Appellants’ Further Amended Statement of Claim, which were not denied by the two (2) sets of the Respondents in this appeal and so deemed admitted by them in line with the rules of pleadings; see Abeke v. Odunsi (2013) All FWLR (pt. 697) 659 (SC), Onwuzuruike v. Deoziem (2016) 6 NWLR (pt. 1508) 215 (SC), the Appellants are of the Akwa Family, the 1 set of Respondents are from Uruowelle Family while the 2nd set of Respondents are from Umuanugwo Family, all ofIfete Dunu in Njikoka Local Government of Anambra State. Since their application to join the suit No. 0/72/1955 between the 2 sets of Respondents in respect of land in dispute was refused, the Appellants commenced or initiated the suit No. 0/120/1955 against them before the same trial court. This is borne out by the pleadings in paragraph 15 of the Appellants’ Further Amended Statement of Claim at page 4 of the Record of Appeal and paragraphs 13, 15 and 16 of the 1t set of the Respondents

P.23

2nd Further Amended Statement of Defence at page 1 1l – 13 of the Record of Appeal. The parties are one on the fact that the suit No. 0/120/1955 commenced

by the Appellants against the 2 sets of Respondents had proceeded to hearing/trial during which witnesses testified and documentary evidence tendered and admitted, but was not concluded when the Nigerian Civil War broke out. All records of the trial court including those of the unconcluded suit No. 0/120/1955, could not be found after the War, as pleaded in paragraph 14 of the Appellants’ Further Amended Statement of Claim at page 4 of the Record of Appeal which was not disputed by the

1 set of Respondents. That fact was acknowledged by the court below in its judgment at page 181 of the Record of Appeal where it stated that:- “The facts of this case were briefly as follows:- The original case file containing the papers filed by the parties as early as 1959 miraculously disappeared or were destroyed from the High Court Registry during the Nigerian Civil War. Following the loss of the original case fille, both counsel built up a temporary one containing their latest Statements of Claim and Defence respectively.”

P.24

It is “clear as crystal” from the observation and statement by the court below that because the records of the unconcluded suit No. 0/72/1955 “miraculously disappeared or were destroyed” during the Nigerian Civil War and so could not be found, the parties therein, “built, up a temporary one containing their latest Statements of Claim and Defence respectively.

By building up temporary records of the unconcuded suit No. 0/120/1955, containing their latest pleadings in Statements of Claim and Defence, to constitute the suit No. 0/114/1959, it was/is beyond reasonable argument that the parties in the unconcluded suit had chosen to continue with that case so that it could be heard and concluded on the subsequent records of the unconcluded suit. This accounts for the

commencement of the suit No. 0/114/1959 by way of a Further Amended Statement of Claims dated 15th April, 1993, filed on the 20h April, 1993 and the 2nd Further Amended Statement of Defence dated the 21t, but filed on the 23rd June, 1993. There is no doubt that the suit No. 0/114/1959 was initiated or commenced in continuation of the unconcluded suit No. 0/72/1955 and it was not a

P.25

new or fresh action, distinct, separate, different or independent of that earlier suit. Again, the court below had acknowledged this position in the judgment appealed against, at page 193 of the Record of appeal where it said: “As for suit No. 0/14/59, which is the present suit, inspite of the original case file having been lost or destroyed during the Civil War, the parties came back and reconstituted the file, and then proceeded from there to conclusion arrived at in that suit, that this appeal has emanated.”

In addition, at page 196, the court below restated that:- “With respect, one must point to the complaint of the both parties as well as the learned trial Judge in his judgment that after the civil war they could not locate the appropriate court records, as they were either lost or destroyed during the civil war. That was why the case file in the instant suit – suit No. 0/144/59, has to be re-constituted by documents brought by learned counsel on both sides, and the fille started with “Further Amended Statement of Claim” instead of with an Application for writ of Summons.”

As rightly observed and stated, a fresh or new action or suit is by the provisions of the High Court of Anambra State (Civil Procedure) Rules, initiated or commenced by way an application for and the issuance of a Writ of Summons for contentious matters like claims for declaration of ownership/title to a piece of land, such as in suit No. 0/l 14/1959, and not

P.26

by way of a “Further Amended Statement of Claim”, Apparently therefore, from the records of both the Trial court and the court below, suit No. 0/114/1959 was a reconstruction, reconstitution and continuation of the unconcluded suit No./120/1955 from the available records after the original case file and records of the case were destroyed during the Nigeria Civil War. If the records of the suit No. 0/120/1955 were admittedly destroyed and could not be found after the Civil War, and so the records lost permanently, the said suit was no longer alive or in existence. In such circumstances, it would be practically and reasonably absurd to say that the suit was still pending for the purpose of the application of the principle of abuse of the court process on ground of multiplicity of suits in respect of the subsequent re-construction or re- constitution of the said suit before the same trial court. The later suit given the No. 0/114/1959 by the trial court, being only a re-construction and re- constitution of the unconcluded case, was only a resuscitation or revival of that case to enable the trial court to eventually conclude it and determine same on the merits.

P.27

I am unable to accept the reasoning, with due respect to the court below, that the suit No. 0/114/1959 was instituted or commenced as a new or fresh action during the pendency of the suit No. 0/120/1955 as to constitute an abuse of the process on ground of multiplicity of actions. Rather, as clearly demonstrated earlier, the suit No. 0/114/1959 was a re- construction, re-constitution and a continuation of unconcluded suit No. 0/120/1955 before the same trial court which was built up from the initiating processes and other records which were destroyed and lost during the Civil War. Perhaps, I should point out that the fact that the re- constituted, re-constructed, ontinued and unconcluded suit No. 0/120/195S was assigned a different suit No. 0/114/1959 by the officials/officers of the trial court did not change the nature of the case which was continued, re-constituted and re-constructed by the Further Amended Statement of Claim by the Appellants; as plaintiffs and the 2^nd Further Amended Statement Defence by the 1 set of Respondents. The initial originating processes filed by the parties to commence the suit No. 0/120/1955 were the processes Amended and Further Amended to revive

P.28

and resuscitate it for continuation by the trial in the later suit given the No.0/114/1959. In the result, I find merit in the arguments of the Appellants that the court below was wrong and in error of law to have held that the suit assigned or given the No. 0/114/1959 by the trial court was a new or fresh suit or action filed by the Appellants while the suit No. 0/120/1955 was still pending, in abuse of the processes of that court. I resolve the issue in favour of the Appellants. Next, are the Appellants’ Issues5 and 6, which for ease of reference are as follows:- Whether the Court of Appeal was right to consider issues arising from the defendants- respondents’ additional grounds of appeal at the Court below and the argument based thereon to allow the appeal, whereas the said additional grounds of 4ppeal is a nullity and the Court of Appeal lacked the jurisdiction to consider same? 6. whether the Court of Appeal was not wrong when it heard and allowed the defendants- respondents’ appeal at the Court below whereas it lacked the jurisdiction to consider the defendants- respondents brief of argument in the Court as it is invalid, null and void?”

P.29

I intend to deal with the two (2) issues together since they are on the jurisdiction of the court below to consider the additional grounds of appeal before it as well as the 1* set of Respondents/Appellants’ Brief in the judgment appealed against.

Appellants’ Arguments: The arguments are that the Additional Grounds of the Appeal before the court below were signed in the name of the Law Firm of “J.H.C. Okolo, SAN & Co.” as shown at page 118 of the Record of appeal and that all the arguments in the Appellants’ Brief filed by the 1st set of Respondents/Appellants were on the Additional Grounds, which are incompetent, on the authority of Hamzat v. Sanni (2015) 5 NWLR (pt. 1453) 486 at 497, 499 – 500 and Sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990. It is the further argument of Learned Counsel for the Appellants that since the Appellants’ Brief in the court below was not signed in accordance with the law, it was invalid, null and void thereby leaving the appeal without a brief of argument. Okafor v. Nweke (2007) 10 NWLR (pt. 10-43) 521 at

P.30

528, Oketade v. Mrs. Adewumi (2010) 8 NWLR (1195) 63 at 74- 75 ,FBN, Plc. v. Maiwada (2013) 5 NWLR (pt. 1348) 444 at 494, State v. Nnolim (1994) 5 NWLR (pt. 343) 394 at 408 – 409 and Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 11s0) 592 at 610 – 611, are cited in Support of the argument and the court is urged to hold that in the absence of a valid brief by argument, the court ought to have dismissed the appeal of the 1t set of Respondents/Appellants. 1 set of Respondents’ Arguments.

The submissions are made under issue II to the effect the original Notice of Appeal filed by the Appellants in the court below was signed by G. E. Ezeuko, SAN as their solicitor and that all the Additional Grounds filed in that court were intended to give specific particulars to the areas of the judgment complained about in the omnibus ground on the Notice of Appeal. Mogaji v. Odofin (1978) 11 LRN, 217, Anyaoke v. Adi (1986) 3 NWLR (pt. 31) 731 and Abdullahi v. Adetutu (2020) 35 WRN, 90 and 117 are referred to for the submission and it further argued that since the competence of the Additional Grounds was not raised at the court below,

P.31

it is late, on the authority of Heritage Bank Ltd. v. Bentworth Fin. Nigeria Ltd. (2018) 19 WRN, 4 at 77, now for the Appellants here to raise it after waiving it and collecting costs for the grant of the application to file the Additional Grounds of appeal. Reliance was placed on SPDCN v. Edamuke (2009) 47 WRN, 1 at 4–25, and Uwemedimo v. Mobil Prod. Nig. Ltd. (2020) 10 WRN, 91 at 107. On the Appellants’ Briefat the court below, it was submitted that it was regulated by the Court of Appeal, Rules, 1981 (applicable at the time) which did not provide for any sanction in the filing of briefs and so do not go to affect the jurisdiction of the court below.

On the authority of Obiori v. Osele (1989) 1 NWLR (pt. 97) 279, Makinjuda v. Balogun (1989) 1 NWLR (pt. 108) 192, Onyekwe v. State (1988) 1 NWLR (pt. 72) 565 and Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130, it is contended that the court below was right to have used and relied on the Appellants’ Brief in the judgment appealed against particularly when the Appellants here have not shown that a miscarriage ofjustice was occasioned thereby Mobil Prod. Nig. Unlimited v. LASEPA

P.32

(2002) S WRN, 1 at 30 and Ajayi v. A. G., Ogun State (2009) 7 NWLR (pt. 1141) 443 at 477 are referred to.

Resolution:

Now, the Notice of Appeal is the originating process in the appellate courts by which the requisite jurisdiction of the courts to entertain and adjudicate over an appeal against or from decision/s of lower courts can properly, validly and competently be invoked by a party who is dissatisfied with such decision/s and desires to exercise the constitutional right of appeal to the appellate courts. It is the foundation which vests the appellate courts with the requisite competence and jurisdiction to properly and effectively entertain and adjudicate over appeals from decision/s of lower courts. A valid and competent Notice of Appeal is therefore sine qua non to the exercise of the jurisdiction of appellate courts without which or in the absence of which, the requisite jurisdiction in law, would be lacking or absent to deprive the appellate courts the judicial power and authority to effectively adjudicate over an appeal.

P.33

See Adelekun v. Ecu-Line NV. (2006) All FWLR (pt. 321) 1213 (SC), Nwaigwe v. Okere (2008) 9 MISC, 86, F.B.N. Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 247 (SC), Dingyadi v. INEC (No.1) (2010) 18 NWLR (pt. 1224) 1 (SC), Garba v. Tsoida (2020) 5 NWLR (pt. 1716) 1(SC), Baba v. Muhammad (2022) 9 NWLR (pt. 1835) 301 (SC).

The law is now elementary that where and when a court; trial or appellate, lacks the requisite statutory jurisdiction, and so competence, to entertain and adjudicate over matter/action or appeal on any cognizable ground, all proceedings conducted by it in the matter/action or appeal; from commencement to conclusion, would be an exercise in futility for being null, void and legally without effect; howsoever. The magisterial pronouncement of this court in the case of ModukKolu v. Nkemdilim (1962) 1 All NLR, 587, (1962) 2 SCNLR, 341; the LOcus Classicus on the principle, suffices as authority thereon because it has been affirmed and re-stated over the years by the court in countless other decisions, including Chacharos v. Ekimpex Ltd. (1988) 1 SCNJ, 93, Okoye v. N.C. & F.C. Ltd. (1991) 6 NWLR (pt. 199 S01 (SC), A. G. Lagos State v. A.

P.34

Federation (2004) 11 – 12 SC, 85, Okike v. LPDC. (No.2) )2005) 7 SC (pt. III) 75, Tiza v. Begha (2005) 5 SC (pt. Il) 1, Cotechna Int. Ltd. v. Ivory Mchut Bank Ltd. (2006) All FWLR (pt. 315) 26 (SC), Okonkwo v. Okonkwo (2010)14 NWLR (pt. 1213) 228 (SC), Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172 (SC), Lafia Local Govt, v. Ex. Govt., Nasarawa State (2012) 5 -7 MJSC, 167, Ronke v. FRN (2020) 2 NWLR (pt. 1709) 574 (SC), Statoil Nig. Ltd. v. Indu Con. Nig. Ltd. (2021) 7 NWLR (pt. 1774) 1 (SC), Mamman v. State (2022) 14 NWLR (pt. 1851) 459 (SC).

In this appeal, the complaint or attack by the Appellants is on the Additional Grounds of Appeal filed with the leave of the court below on the 14th January, 1999, and deemed on the 8h February, 1999, on the basis that it was signed in the name of the Law Firm of the 1st set of Respondents/Appellants’ solicitors.

The Further/Additional Grounds of Appeal filed by the 1st set of Respondents/Appellants in the court below on the 14th January, 1999 and deemed by it on the 8th February, 1999 as properly filed and served, appear

P.35

at pages 114 – 118 of the Record of Appeal ånd are apparently and undeniably signed on 12h January, 1999 in the name of and for “J. H. C. Okolo, SAN & Co.”; Appellants’/Applicants’ counscl of 162B, Zik Avenue, Enugu.

There is clearly no name of the person who signed the Further Additional Grounds of Appeal as the Appellants/Applicants’ counsel for and in the name of the Law Firm ofJ. H. C. Okolo & Co.

In other words, the person who signed the process cannot reasonably be identified as a Legal Practitioner, defined under Section 2(1) of the Legal Practitioners Act, (LPA) who is, by dint of the provisions in Section 24 of the Legal Practitioners Act, qualified and competent to sign a judicial process to be filed in a court of law in Nigeria. The position of the law has, since the earlier Okafor v. Nweke (supra), been affirmed and restated by this court, been that once the name of the specific person who signs a judicial process (originating or other processes) cannot be identified on the ground that it was not subscribed or set out on the process, such a process is incompetent and invalid in law on the ground that only a person

P.36

whose name appears on the Roll of Legal Practitioners is entitled to sign such processes. It is also the law that the rule that only persons whose names appear and are on the Roll of Legal Practitioners are duly qualified and entitled to sign judicial process to be filed in a court of law, is not one of procedural technicalities, but one of substantial law by virtue of the afore named sections 2 (1) and 24 of the Legal Practitioners Act.

Recently, this court restate the position of the law, to put it beyond further arguments, in the case of Yusuf v. Mobil Oil Nig. Plc (2020) 3 NWLR (pt. 1710) 1 at 14 -15, per Okoro, JSC in the Lead Judgment; that:-

“That by sections 2 (1) and 24 of the Legal Practitioners Act, Cap L 1l, LFN 2004, only persons whose names are on the roll of Legal Practitioners are entitled to practice as barristers and solicitors in Nigeria, and are entitled to sign processes accordingly. For the avoidance of doubt, let me reproduce these sections of the Act for case of reference:-

“Section 2 (1) – Subject to the provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.

“24. Legal practitioner means a person entitled in accordance with, the provisions of this Act to practice as barrister or as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.””

“There are clear decisions of this court on the issue of the signing of court processes in the name of a firm which cannot

P.37

be found on the roll of legal practitioners. In all these decisions this court has categorically held that processes signed in the name ofa firm were 10 NWLR (PI. 1043) 521, Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SLB Consortium Ltd. v. NNPC (201l) 9 NNWVLR (P. 1252) 317, First Bank Nigeria Plc v. Maiwada & ors (2012) lpelr -9713 (SC); (2013) 5 NWLR (Pt. 1348) 444; Okarika & Ors v. Samuel & Anor (2013) 7 NWLR (PA 1352) 19, Bank of Industry Ltd v. Awojugbagbe Light Industries Ltd (2018) LPLR–43812 (SC); (2018) 6 NWLR (Pt. 1615) 220.”

I find it apt to restate what I said in the more recent case of Skypower Expr. Airways Ltd. v. UBA, Plc (2022) 6 NWLR (pt. 1826) 203 at page 230 – 232, speaking for this court in the Lead Judgment. This is it:-

“The question whether a court process filed in court was signed in the name of an identifiable person or in the name of a law firm is and can easily be determined by a physical view, close look and consideration of the process itself by the court.

The court processes in this appeal are the writ of summons at pages 1 -3 and the statement of claim at pages 4- 11 of vol. 2 of the record of appeal, which appear thus:-

Even a casual and passing glance at these processes would clearly show, beyond reasonable argument, that each was signed with a signature above, for and in the name of J. Odion Esezoobo & Co.” indicated to be counsel for plaintiff. It is plain that the signature does not reveal, signify or identify, precisely, the name of the person who appended the signature or signed for the law firm, said to be the counsel to the plaintiff on any of the processes. The signature itself does not portray the name of the person who inscribed it for the purpose of accurate identification and proper authentication.

“Signature” is defined in the 9^th Edition of the Black’s Law Dictionary, page 1507, to mean, among others:-

P.38

A person’s name or mark written by that person or at the person’s direction.

“the signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of this signer.” The word “sign” is also define on the same page, to mean, inter alia;-

«To identify (a record) by means of a signature, mark, or other symbols with the intent to authenticate it as an act or agreement of the person identifying it.”

See also Onward Ent. V. Olam Int. Ltd. (2010) All FWLR (pt. 531) 1503 at 1S03 at ISI2. In SLB Consortium Ltd, v. N. N. P.C (supra) this court, per Rhodes-Vivour, JSC underscored the importance of the way counsel chooses to sign a court process and how all processes to be filed in court shall be signed by the counsel. His Lordship explained that-

“Once it cannot be said who signed a process, it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). All processes filed in court are to be signed as follows:-

First, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represents.

Fourthly, name and address of legal firm.”

This position was restated by the learned law lord in the case of Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 466 at 485 to settle the appropriate manner, way or mode for proper and valid signing of all court processes by counsel representing parties recognized by the law. Any court process not signed by  a legal practitioner representing a party as specifically stated and in the specified manner, is not a court process signed in

P.39

accordance with or the recognized by law since it will not be a process signed by an identifiable person who could be attributed the competence to sign same.

The undeniable fact in the case of the appellant in this appeal is that both the writ of summons at page 2 and the statement of claim at page 4 – 1l of vol. 2 of the record of appeal, which clearly and expressly, though mutedly, speak for themselves, are signed by way of a contraption as a signature, over, for and in the name of the law firm of”J. Odion Esezoobo & Co.” The contraption or signature is not/does not represent the name of any identifiably person. In this brief of argument, the learned counsel for the appellant has strenuously contended that the signature is the name of counsel for the plaintiff and it is not just a contraption. However, an objective look at the signature shows not even a semblance or a specific and identifiable name, which by the prescription of the court in SLB Consortium Ltd. v. NNPC and Nigerian Army v. Samuel (above, supra) is required to be “clearly written” in addition to any contraption which may be inscribed or appended as a signature of counsel to the processes. On the two (2) processes, only a signature appears and was inscribed without any name specifically, distinctly and clearly written to as to identity the person who made the contraption of the signature thereon.

The signature was inscribed or appended, as a contraption, over or on top of the name of the Law Firn of “J. Odion Esezoobo & Co.” clearly indicating and showing that they were both singed on behalf of and in the name of the said law firm, as counsel for the plaintif In the words, Mukhtar, JSC (later CJN) in SLB Consortium Ltd. v. N.N.P.C. (supra):-

It is instructive to note here that the requirement for the name of the Legal Practitioner to be given, is necessary and important. The emphasis here is on the name together with the signature.”

Rhodes-Vivour, .JSC concluded that:-

“A signature without the name is incurably bad.”

P.40

See also the decisions of the court in Ajibode v. Gbademosi (2021) 7 NWLR (pt. 1776) 475 (SC), Bakari v. Ogundipe (2021) 5, NWLR (Pt. 1768) 1 (SC), Al-Masmoon Sec. Ltd. v. P.P.M.C. Ltd. (2022) 7 NWLR (pt. 1828) 1 (SC), Network Securities Ltd. v. Dahiru (2022) 14 NWLR (pt. 1850) 351 (SC), O’bau Engr. Ltd. v. Almasol Nig. Ltd. (2022) 16 NWLR (pt. 1855) 35 (SC)., Fatunde v. Fan Milk, Plc (2022) 18 NWLR (pt. 1862) 253 (SC), Aminu v. Subair (2024) 8 NWLR (pt. 1939) 99 (SC), Asaha v. Nwachukwu (2024) 9 NWLR (pt. 1942) 149 (SC).

In the premises of the law, the Further/Additional Grounds of Appeal filed before the court below by the 1″ set of the Respondents was /is clearly incompetent to deprive that court of the requisite jurisdiction to entertain and grant same since it was not signed in compliance with provisions of Sections 2 (1) and24 of the Legal Practitioners Act. Since the court below lacked the requisite jurisdiction to use and adjudicate over the further/Additional Grounds, all proceedings in respect of those grounds are in law, null and void and so of no legal effect in the determination of the appeal before it.

P.41

Because there is no dispute about and/or a challenge to the competence of the original Grounds of Appeal before the court below as contained on the notice Appeal dated the 18h, but filed on the 22nd June, 1998, the only competent grounds of the appeal before that court over which it was seized of the requisite jurisdiction to validly adjudicate, were the two (2) grounds contained thereon.

The invalid and incompetent Further/Additional Grounds of Appeal Nos. 3, 4, 5 and 6, which appear at pages 114- 118 of the Record of Appeal are liable to be and hereby struck out.

I have perused the judgment of the court below; the subject of this appeal and noted that it is predicated on the two (2) grounds contained on the original Notice of Appeal dealing primarily, with the issue of abuse of the court process, which I have determined above, as well as the four (4) incompetent Further/Additional Grounds of Appeal on the evaluation of the evidence; parole and documentary, by the trial court.

However, the Ground No. 2 on the original Notice of Appeal which is/was a competent and valid ground of appeal was in the omnibus terms; thus:-

P.42

“Judgment is entirely against the weight of evidence.”

The real complaint in this ground of appeal was that the judgment of the trial court was not based on the credible evidence placed before that court by the parties, but particularly the Appellants before the court below who were dissatisfied with the judgment of the trial court. Their grievance in the ground was that the judgment of the trial court was not supported by the totality of the evidence adduced at the trial which the trial court did not properly evaluate. Put shortly or briefly, the complaint in the ground was that the judgment of the trial court was perverse on the ground that it was not supported and based on the evidence placed before that court, on proper evaluation. A complaint in an omnibus ground of appeal postulates that there was no credible evidence, which if accepted, would support the findings of a trial court as well as the inferences drawn and conclusion reached thereon. See Sparkling Breweries v. U. B. N. Ltd. (2001) 15 NWLR (pt. 737) 539 Lagga v. Sarhuna (2008) 16 NWLR (pt. 1114) 427, Nwokidu v. Okanu (2010)3 NWLR (pt. 1181) 362, Chiadi v. Aggo (2018) 2 NWLR (pt. 1603) 175.

P.43

In the appeal before the court below, since the omnibus ground on the original Notice of Appeal was competent, that court was not only entitled, but had the duty to consider the complaint therein on the evaluation of the evidence by the trial court and determine same in its judgment. As a result, even without the incompetent Further/Additional Grounds of Appeal, the court below was right to have considered and determined the issue of whether the trial court properly evaluated the totality of the evidence adduced by the parties before it in reaching its decision which was the subject of the appeal before it. However, the court below, as stated earlier, lacked the requisite jurisdiction to consider and use the incompetent further/Additional Grounds of Appeal in the determination of the appeal before it.

The same terminal defect afflicted the Appellants’ Brief dated 28^th February, 1999, which appears from pages 121 – 149 of the Record of Appeal, signed in the name of“JH.C. Okolo, SAN & Co.” as Appellants’ counsel, which is in clear contravention of the provisions of Sections 2 (1)

P.44

and 24 of the Legal Practitioners Act and therefore irretrievably, incompetent.

The said incompetent Appellants Brief was therefore no Brief of argument at all, in law, which could be considered by the court below in the determination of the appeal before it. In the case of R. A. Oliyide & Sons Ltd. v. O. A, U. Ile-Efe (2018) 8 NWILR (pt. l622) 564 at 576 per Ogunbiyi, JSC, in the Lead Judgment, restated that:-

“Furthermore and to buttress the point further, it is a matter of law to stress emphatically that the issue of non-signing of the appellant’s brief by a Legal Practitioner is jurisdictional. The law is trite and elementary that an issue of jurisdiction cannot be waived. A stated earlier, it is not an irregularity and can be raised at any time, even for the first time in this court as held severally.”

In the eyes of the law, the respondent herein abandoned its appeal at the lower court because it (the appellant at the lower court) did not have a competent brief of argument before the court; the lower court in the result acted without jurisdiction when it allowed the appeal of the respondent based on an incompetent brief of argument.”

Sanusi, JSC, in his contributory judgment, had emphasized, at page 581 – 582 of the Report, that:-

In that regard, I an inclined to agree with the appellant’s contention that the respondent’s brief filed at the lower court on behalf of the appellant thereat) is invalid and incompetent.

P.45

The non-signing of that brief of argument of the appellant thereat, had therefore vitiated the jurisdiction of the court below to rely and act on it and determine the appeal before it, because in actual fact there was no brief of the appellant and as such, no competent brief of argument for it to rely on, hear and determine the appeal since its jurisdiction is eroded for non-availability of a competent brief of argument filed by an appellant before it.”

With the above weighty position of the law, the fate of this appeal has been firmly sealed since the court below lacks the jurisdiction to have acted and used the incompetent Appellants’ Brief filed before it by the 1^st set of Respondents herein, as Appellants before it, in the determination of the said appeal. In the absence of the requisite jurisdiction, the proceedings conducted by the court below and the judgment appealed against, in particular, are rendered null and void and liable to be set aside.

This position has also subsumed the remaining issue 4 of the Appellants as well as the sole issue in the Cross Appeal filed by the 1% set of Respondent.

In the final result, I find merit in this appeal and allow same for the reasons enumerated earlier. Consequently, the judgment delivered by the court

P.46

below on the 25th January, 2001 is hereby set aside on the ground of lack/want of jurisdiction on the part of that court.

The judgment of the trial court delivered on 9^th April, 1998 is restored and affirmed.

I order that parties bear their respective costs of prosecuting the appeal.

MOHÂMMED LAWAL GARBA, JUSTICE, SUPREME COURT