Almajir v. Jalbait Ventures (Nig) Ltd (2021)

Almajirv.JalbaitVentures(Nig.)Ltd.

ALHAJI ISMA’IL ALMAJIR

V.

1.JALBAIT VENTURES NIG. LTD.

2.ALHAJI MAHMOUD IBRAHIM BAITA

SUPREME COURT OF NIGERIA

SC.132/2010

NWALI SYLVESTER NGWUTA, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C.

MUSA DATTIJO MUHAMMAD, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C

EJEMBI EKO, J.S.C. (Read the Leading Judgment)

FRIDAY, 22ND JANUARY 2021

APPEAL – Appeal from Court of Appeal to Supreme Court – Whenlies with leave – Section 233(3) of 1999 Constitution (asamended).

APPEAL – Appeals from the Court of Appeal to the Supreme Court- Legal practitioners rushing in contravention of provision ofsection 233(2)(a) and (3), 1999 Constitution – Impropriety of.

APPEAL – Ground of appeal – Function of – When of fact andargumentative.

APPEAL – Grounds of appeal – How couched.

APPEAL – Grounds of appeal – Omnibus ground of appeal – Omnibusground complaining of weight of evidence – Classification of.

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APPEAL – Ground of appeal – On what must be founded.

APPEAL – Ground of appeal – Where alleges error – Onus onappellant in respect of.

APPEAL – Incompetent appeal – Whether Supreme Court hasjurisdiction to entertain.

APPEAL – Initiating an appeal – Condition precedent thereto -Failure to comply with – Legal consequence of.

APPEAL – Leave to appeal – Failure to obtain leave to appeal wherenecessary – Effect.

APPEAL – Notice of appeal – Importance of.

APPEAL – Notice of appeal – Where fundamentally defective, nulland void – Effect.

APPEAL – Notice of appeal – Where without a ground of appeal ora competent ground of appeal – Effect.

APPEAL – Right of appeal – Appeal from Court of Appeal toSupreme Court – When lies as of right – Section 233(2)(a) of1999 Constitution (as amended).

CONSTITUTIONAL LAW – Right of appeal – Appeal from Courtof Appeal to Supreme Court – When lies as of right – Section233(2)(a) of 1999 Constitution (as amended).

CONSTITUTIONAL LAW – Right of appeal – Appeal from Courtof Appeal to Supreme Court – When lies with leave – Section233(3) of 1999 Constitution (as amended).

C OURT – Issue before court – Issues raised by parties – Duty oncourt to limit itself to.

COURT – Process of court – Where a nullity – Whether can beregularized.

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COURT – Supreme Court – Jurisdiction of – Whether has jurisdictionto entertain an incompetent appeal.

JURISDICTION – Supreme Court – Jurisdiction of – Whether hasjurisdiction to entertain an incompetent appeal.

LEGAL PRACTITIONER – Appeals from the Court of Appeal to theSupreme Court – Legal practitioners rushing in contraventionof provision of section 233(2)(a) and of the 1999Constitution – Impropriety of.

PRACTICE AND PROCEDURE – Appeal – Appeals from the Courtof Appeal to the Supreme Court – Legal practitioners rushingin contravention of provision of section 233(2)(a) and ofthe 1999 Constitution – Impropriety of.

PRACTICE AND PROCEDURE – Appeal – Ground of appeal -Function of – When of fact and argumentative.

PRACTICE AND PROCEDURE – Appeal – Grounds of appeal -How couched.

PRACTICE AND PROCEDURE – Appeal – Ground of appeal – Onwhat must be founded.

PRACTICE AND PROCEDURE – Appeal – Ground of appeal -Where alleges error – Onus on appellant in respect of.

PRACTICE AND PROCEDURE – Appeal – Incompetent appeal -Whether Supreme Court has jurisdiction to entertain.

PRACTICE AND PROCEDURE – Appeal – Initiating an appeal -Condition precedent thereto – Failure to comply with – Legalconsequence of.

PRACTICE AND PROCEDURE – Appeal – Notice of appeal -Importance of.

PRACTICE AND PROCEDURE – Appeal – Notice of appeal -Where without a ground of appeal or a competent ground ofappeal – Effect.

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PRACTICE AND PROCEDURE – Appeal – Right of appeal – Appealfrom Court of Appeal to Supreme Court – When lies with leave- Section 233(3) of 1999 Constitution (as amended).

PRACTICE AND PROCEDURE – Appeal – Right of appeal – Appealfrom Court of Appeal to Supreme Court – When lies as of right- Section 233(2)(a) of 1999 Constitution (as amended).

PRACTICE AND PROCEDURE – Grounds of appeal – Omnibusground of appeal – Omnibus ground complaining of weight ofevidence – Classification of.

PRACTICE AND PROCEDURE – Issues before court – Issuesraised by parties – Duty on court to limit itself to.

PRACTICE AND PROCEDURE – Leave to appeal – Failure toobtain leave to appeal where necessary – Effect.

PRACTICE AND PROCEDURE – Notice of appeal – Wherefundamentally defective, null and void – Effect.

PRACTICE AND PROCEDURE – Process of court – Where a nullity- Whether can be regularized.

PRACTICE AND PROCEDURE – Supreme Court – Jurisdiction of- Whether has jurisdiction to entertain an incompetent appeal.

PROCESS OF COURT – Process of court – Where a nullity -Whether can be regularized.

Issue:

Whether the instant appeal filed without the leave ofcourt is competent.

Facts:

The appellant instituted an action against the respondents at thetrial court. He appealed against the judgment of the trial court to theCourt of Appeal. He was unsuccessful in the appeal and thereforefiled a notice and grounds of appeal to the Supreme Court, whereinhe stated that he was appealing as of right against the judgment ofthe Court of Appeal.

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The original notice of appeal contained six grounds ofappeal. Grounds one, two, three and six; the omnibus ground, allraised issues of facts. Ground four did not flow from the judgmentappealed against, while ground five did not state the particulars oferrors alleged.

The respondents raised a preliminary objection to thecompetence of the appeal. They prayed that the appeal and theprocesses filed by the appellant be struck out in their entirety forbeing incompetent.

One of the grounds of the objection was that the appellantfailed to seek and obtain the leave of court before filing the sixgrounds of appeal contained in the original notice of appeal as(6)required under Section 233(3) of the 1999 Constitution.

In resolving the appeal, the Supreme Court considered theprovision of section 233(2)(a) & of the 1999 Constitution (asamended) which states:

“233(2) An appeal shall lie from the decisions of the Courtof Appeal to the Supreme Court as of right in thefollowing cases –

Where the ground of appeal involvesquestion of law alone, decisions in anycivil or criminal proceedings before theCourt of Appeal.”

“(3) Subject to the provisions of subsectionof this section, an appeal shall lie from thedecision of the Court of Appeal to the SupremeCourt with leave of the Court of Appeal or theSupreme Court.”

Held (Unanimously striking out the appeal):

1.On When appeal lies from Court of Appeal to SupremeCourt as of right –

By virtue of section 233(2)(a) of the 1999 Constitution(as amended), an appeal shall lie from the decisionsof the Court of Appeal to the Supreme Court as ofright where the ground of appeal involves questionof law alone, decisions in any civil or criminalproceedings before the Court of Appeal. (P. 175,paras. D-E)

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2.On When appeal lies from Court of Appeal to SupremeCourt with leave –

By virtue of section 233(3) of the 1999 Constitution(as amended), subject to the provisions of subsectionof the section, an appeal shall lie from the decisionof the Court of Appeal to the Supreme Court withleave of the Court of Appeal or the Supreme Court.(2)(P. 175, para. E)

3.On Effect of failure to obtain leave to appeal wherenecessary –

Where leave, first sought and obtained, is sine quanon, under section 233 of the 1999 Constitution(as amended), for a valid or competent appeal;unless the leave is first sought and granted to anappellant to appeal, any appeal lodged or filed indefiance of the said mandatory provisions will benull and void ab initio. [Maigoro v. Garba (1999) 10NWLR (Pt. 624) 555; Umanah v. N.D.I.C. (2016) 14NWLR (Pt. 1533) 458 referred to.] (P. 170, paras.B-E)

4.On Classification of omnibus ground complainingabout weight of evidence –

An omnibus ground complaining about weight ofevidence is a ground of fact. In the instant case, the6 th ground of appeal was an omnibus ground. Itcomplained that the entire decision of the Court ofAppeal was against the weight of overwhelming andvirtually unchallenged evidence of the appellant.The ground was one of pure facts. It thereforerequired leave. [Opuiyo v. Omoniwari (2007) 16NWLR (Pt. 1060) 415 referred to.] (P. 170, parasF-G)

5.On When ground of appeal is of fact and argumentative –

A finding that a particular issue for thedetermination of an appeal is “not too wide, vagueand incapable of consideration for determination”is one of fact, as also it is argumentative. In theinstant case, ground one raised issue of fact

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notwithstanding that it was couched as “error oflaw”. It required leave. It was also defective forbeing argumentative. (P. 171, paras. B-D)

6.On Function of ground of appeal –

A ground of appeal isolates and expatiates forattack, the basis for the reasoning of the decisionbeing challenged. In the instant case, the appellantconceded that ground 4 raising the issue of privityand locus standi did not attack any ratio decidendi ofthe decision appealed. It just came from the cloudsand had no competence. [Star Deepwater PetroleumLtd. v. A.I.C. Ltd. (2015) LPELR – 25387 referredto.] (P. 171, paras. E-G)

7.On Onus on appellant where ground of appeal allegeserrors –

Where a ground of appeal alleges errors, theparticulars of the error for purposes of fairhearing (audi alteram partem in particular) mustbe separately set out in the grounds of appeal. Inthe instant case, the argument of the appellant, thatparticulars of error were embedded in ground fiveof the grounds of appeal and that there was no legalrequirement to set them out separately was puerile.(P. 172, paras. A-B)

8.On Effect where a notice of appeal is fundamentallydefective, null and void –

A notice of appeal that is fundamentally defective,null and void ab initio cannot be amended. Itdoes not in law, exist. It is just a phantom. Noamendment can validate it or resuscitate it as it isincurably defective. [B.A.S.F. (Nig.) Ltd. v. Faith Ent.Ltd. (2010) 4 NWLR (Pt. 1183) 104; N.B.N. v. N.E.T.(1986) 3 NWLR (Pt. 31) 667; Atuyeye v. Ashamu(1987) 1 NWLR (Pt. 49) 267; Odofin v. Agu (1992) 3NWLR (Pt. 229) 350; Nwaeze v. Eze (1999) 3 NWLR(Pt. 595) 410 referred to.] (P. 172, paras. D-E)

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9.On Whether a process that is a nullity can be regularized-

An act or process that is a nullity cannot beregularised. [Okafor v. A.-G., Anambra State (1991)6 NWLR (Pt. 200) 659; Saleh v. Monguno (2006) 15NWLR (Pt. 1001) 26 referred to.] (P. 172, paras.F-G)

10.On Whether the Supreme Court has jurisdiction toentertain an incompetent appeal –

The Supreme Court lacks jurisdiction to entertainthe merits of an incompetent appeal. [Kashadadi v.Noma (2007) 13 NWLR (Pt. 1052) 510; Obijuru v.Ozims (1985) 2 NWLR (Pt. 6) 167; Okoye v. Nwulu(2000) 2 NWLR (Pt. 653) 508 referred to.] (P. 172,para. H)

11.On When appeal as of right from Court of Appeal toSupreme Court and when requires leave –

A party can appeal from the Court of Appeal to theSupreme Court as of right, that is without leave ofcourt, only where the ground or grounds of appealinvolves/involve question of law only under section233(2)(a) of the Constitution. Where the ground/grounds involves/involve question of mixed lawand fact or facts, such ground of appeal cannot bevalidly filed without leave of the Court of Appealor the Supreme Court first sought and had undersection 233(3) of the Constitution. (P. 173, paras.C-D)

12.On How to couch grounds of appeal in notice of appeal –

By virtue of Order 8 rule 3 of the Supreme CourtRules, the notice of appeal shall set forth conciselyand under distinctive heads the grounds uponwhich the appellant intends to rely at the hearing ofthe appeal without any argument or narrative. Inthe instant case, the six original grounds of appealwere argumentative in breach of Order 8 rule 2(3)of the Supreme Court Rules. (P. 173, paras. E-F)

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13.On What ground of appeal must be founded –

Where a party appeals against a judgment or partthereof, the ground of appeal must be founded onratio decidendi in the judgment. In the instant case,ground four of the original grounds of appeal waspredicated on supposed resolution by the Court ofAppeal of the issues of privity and locus standi ofthe appellant, whereas those issues were not raisedbefore and could not have been resolved by theCourt of Appeal. [Amobi v. Nzegwu (2014) 2 NWLR(Pt. 1392) 510; F.R.N. v. Mohammed (2014) 9 NWLR(Pt.1413) 551; Ukeje v. Ukeje (2014) 11 NWLR (Pt.1418) 384 referred to.] (Pp. 173-174, paras. G-A)

14.On Duty on court to limit itself to issues raised by theparties –

While the court, trial or appellate, is bound toconsider all issues properly raised by the partiesin the case before it, it must limit itself to issuesraised by the parties. [Adeogun v. Fashogbon (2011)8 NWLR (Pt. 1250) 427; Adonri v. Ojo-Osagie (1994)6 NWLR (Pt. 349) 131 referred to.] (P. 174, paras.A-B)

15.On Importance of a notice of appeal –

A notice of appeal is an initiating process. It is thefoundation of an appeal. (P. 174, para. B-C)

16.On Effect where a notice of appeal is without a groundof appeal or a competent ground of appeal –

A notice of appeal without a ground of appeal isnull and void, so also a notice of appeal without acompetent ground of appeal is devoid of any legalattribute. (P. 174, para. C)

17.On Legal consequence of failure to comply withcondition precedent to initiating an appeal –

The legal consequence of failure to comply withthe condition precedent in initiating an appeal is

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that the initiating process is null and void and theappellate court lacks jurisdiction in the matter as it isnot properly before it. In the instant case, the noticeof appeal was a nullity and step purportedly taken,or process filed subsequent thereto was also null andvoid. This is because, you cannot put something onnothing. [Ogugu v. State (1994) 9 NWLR (Pt. 366) 1;Central Bank of Nigeria v. Celadole (2010) 5 SC 38referred to.] (P. 174, paras. D-E)

18.On Effect of failure to obtain leave to appeal whererequired –

.The effect of failure to obtain leave to appeal wheresame is required is that the originating processbefore the court is incurably defective. This isbecause, you cannot put something on nothing andexpect it to stand. In the instant case, the subsequentamendment of the defective notice of appeal couldnot cure the original defect or infuse life into theprocess. The defect had robbed the Supreme Courtof jurisdiction to hear the appeal. [Nwaigwe v. Okere(2008) 13 NWLR (Pt. 1105) 445; Awhinawhi v. Oteri(1984) 5 SC 38; Atuyeye v. Ashamu (1987) 1 NWLR(Pt. 49) 267; Allanah v. Kpolokwu (2016) 6 NWLR (Pt.1507) 1; Jev v. Iyortom (2014) 14 NWLR (Pt. 1428)575; Yaro v. Arewa Construction Ltd. (2007) 17 NWLR(Pt. 1063) 333 referred to.] (P. 175, paras. F-H)

19.On Impropriety of legal practitioners rushing appealsfrom the Court of Appeal to the Supreme Court incontravention of the provision of section 233(2)(a) and(3)of the 1999 Constitution –

Per EKO, J.S.C. at page169, para. F-G:

“The issue raised in the objection is supposedto be elementary. However, many times legalpractitioners rush further appeals from theCourt of Appeal (lower court) to this court inutter insubordination of the clear provisions ofsection 233(2)(a) and of the Constitution”

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Nige rian Cases Referred to in the Judgment:

Adeogun v. Fashogbon (2011) 8 NWLR (Pt.1250) 427

Adonri v. Ojo-Osagie (1994) 6 NWLR (Pt.349) 131

Allanah v. Kpolokwu (2016) 6 NWLR (Pt.1507) 1

Amobi v. Nzegwu (2014) 2 NWLR (Pt. 1392) 510

Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267

Awhinawhi v. Oteri (1984) 5 SC 38

B.A.S.F. (Nig.) Ltd. v. Faith Ent. Ltd. (2010) 4 NWLR (Pt.1183) 104

C.B.N. v. Celadole (2010) 5 – 7 SC

F.R.N. v. Mohammed (2014) 9 NWLR (Pt.1413) 551

Jev v. Iyortom (2014) 14 NWLR (Pt. 1428) 575

Kashadadi v. Noma (2007) 13 NWLR (Pt. 1052) 510

Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555

N.B.N. v. N.E.T. (1986) 3 NWLR (Pt. 31) 667

Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410

Nwaigwe v. Okere (2008) 13 NWLR (Pt. 1105) 445

Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167

Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350

Ogugu v. State (1994) 9 NWLR (Pt. 366) 1

Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659

Okoye v. Nwulu (2000) 2 NWLR (Pt. 653) 508

Opuiyo v. Omoniwari (2007) 16 NWLR (Pt. 1060) 415

Saleh v. Monguno (2006) 15 NWLR (Pt. 1001) 26

Star Deepwater Petroleum Ltd. v. A.I.C. Ltd. (2015) LPELR25387

Ukeje v. Ukeje (2014) 11 NWLR (Pt.1418) 384

Umanah v. N.D.I.C. (2016) 14 NWLR (Pt. 1533) 458

Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt. 1063)333

Foreign Case Referred to in the Judgment:

U.A.C. v. Macfoy (1961) 3 All ER 1169

Nigerian Statute Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999, S.233(2)(a)(3)

Nigerian Rules of Court Referred to in t he Judgment:

Supreme Court Rules, O. 8 2(3)

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Appeal:

This was an appeal against the decision of the Court of Appeal,which dismissed the appeal of the appellant against the judgment ofthe trial court. The Supreme Court, in a unanimous decision, struckout the appeal for being incompetent.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Nwali SylvesterNgwuta, J.S.C. (Presided); Olukayode Ariwoola, J.S.C.;Musa Dattijo Muhammad, J.S.C.; Kudirat MotonmoriOlatokunbo Kekere-Ekun, J.S.C.; Ejembi Eko, J.S.C.(Read the Leading Judgment)

Appeal No.: SC.132/2010

Date of Judgment: Friday, 22nd January 2021

Names of Counsel: Adamu Abubakar, Esq. – for theAppellant

Ifeanyi Ndumnego, Esq. – for the Respondents

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Kaduna

Names of Justices that sat on the appeal: MohammedLawal Garba, J.C.A. (Presided); John Inyang Okoro,J.C.A.; Theresa Ngolika Orji-Abadua, J.C.A. (Read theLeading Judgment)

Appeal No.: CA/K/15/2009

Date of Judgment: Monday, 22nd February 2010

Names of Counsel: J. B. Saleh, Esq. (with him, GideonUzu, Esq.) – .Holding the brief of K. B. Olawoyin, Esq. -for the Appellant

N. A. Ayagi, Esq. – for the Respondent

High Court:

Name of the High Court: High Court of Kano State, Kano

Name of the Judge: Adamu, J.

Suit No.: K/464/2007

Date of Judgment: Wednesday, 12th December 2007

Names of Counsel: M. A. Lawan – for Judgment Debtor/Applicant

A. M. Bello – for Judgment Creditor/Respondent

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C ounsel:

Adamu Abubakar, Esq. – for the Appellant

Ifeanyi Ndumnego, Esq. – for the Respondents

EKO, J.S.C. (Delivering the Leading Judgment): In the appealNo. CA/K/15/2009 before the Court of Appeal sitting at Kadunathe parties herein were also the parties. The appellant herein wasthe plaintiff at the trial. He was also the unsuccessful appellant atthe lower court. The judgment he is appealing was delivered on 2ndFebruary, 2010. Aggrieved thereby he filed notice of appeal on 2ndFebruary, 2010 that he –

  • doth hereby appeal, as of right to the Supreme Courtupon the grounds set out in paragraph 3 –

This notice of appeal (the original) has six grounds ofappeal (at pages 193-196 of the record).

The respondents have raised notice of preliminary objectionto the competence of the appeal. They pray that the appeal andthe processes filed by the appellant be struck out in their entirety.One of the grounds of the objection is that the appeal filed as ofright is incompetent; the appellant having not sought and obtainedleave before filing the six grounds of appeal contained in theoriginal notice of appeal as he should have, under section 233(3)of the 1999 Constitution. The said 6 original grounds of appeal areallegedly grounds raising complaints of either pure facts or mixedlaw and facts.

The issue raised in the objection is supposed to be elementary.However, many times legal practitioners rush further appealsfrom the Court of Appeal (lower court) to this court in utterinsubordination of the clear provisions of section 233(2)(a) andof the Constitution which provide –

233(2) An appeal shall lie from the decisions of the Courtof Appeal to the Supreme Court as of right in thefollowing cases –

Where the ground of appeal involves questionof the law alone, decisions in any civil orcriminal proceedings before the Court ofAppeal.

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Subject to the provisions of subsection of thissection, an appeal shall lie from the decision of theCourt of Appeal to the Supreme Court with leave ofthe Court of Appeal or the Supreme Court.

Where leave first sought and obtained is sine qua non, undersection 233(2) and of the Constitution, for a valid or competentappeal; unless the leave was first sought and granted to theappellant to appeal any appeal lodged or filed in defiance of thesaid mandatory provisions will be void and a nullity ab initio. InMaigoro v. Garba (1999) LPELR – 1820 (SC) at 13 – 14, (1999) 10NWLR (Pt. 624) 555 Ejiwunmi, JSC stressed the consequence forthis defiance emphatically thus –

It is therefore clear that the court has no jurisdiction toentertain an appeal on a ground of fact or mixed lawand facts, unless of course, leave has been obtained.This point has been emphasized in a number of recentdecisions. It is enough to refer only to the following:-Oluwole v. Lagos Development Corporation (1988) 5SC 1; (1985) 2 NWLR (Pt. 6) 167 at pages 176 – 188;and J. B. Ogbechie & Ors v. Gabriel Onochie & Ors(No.1) (1986) 2 NWLR (Pt. 23) 484.

See also Umanah Jr. v. N.D.I.C. (2016) 14 NWLR (Pt. 1533)458 (SC).

With the foregoing preface, let me now consider the objectionvis-à-vis the six grounds of appeal in the original notice ofappeal.

The 6th ground of appeal is an omnibus ground. It complainsthat “the entire decision of the lower court was against the weight ofoverwhelming and virtually unchallenged evidence of the plaintiff/appellant. The ground is one of pure facts. An omnibus groundcomplaining about weight of evidence is a ground of fact: Opuiyov. Omoniwari (2007) 16 NWLR (Pt. 1060) 415 (SC) at 525 – 526. Ittherefore requires leave.

Ground 3 complaining that the lower court “erred whenthey disturbed some findings (unspecified) of trial court” is also acomplaint on or about unspecified findings of fact made by the trialcourt which the lower court allegedly disturbed. It is a complainton facts. On principles of fair hearing, particularly audi alterampartem, the facts allegedly disturbed must be specified. They were

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not so specified. The respondents have thus no notice of them. Theground is thus defective.

Ground 2 complains that the lower court was “in error infinding that there existed a conflict in the figures presented byboth parties at the trial that calls for hearing on the General CauseList”. This clearly is a complaint on facts. In any case, I agreewith the respondents/objectors that this ground is bereft of specificparticulars on which the main complaint in the ground can bepredicated, notwithstanding the purported particulars of error.

My Lords, a finding that a particular issue for the determinationof an appeal is “not too wide, vague and incapable of considerationfor determination” is one of fact, as also it is argumentative. Thecomplaint in ground 1 of the grounds of appeal is all about this.This ground 1, as I agree with the respondents/objectors, is oneof fact. I am satisfied, as contended by the respondents/objectors,that ground 1 raises issue of fact notwithstanding that it is couchedas “error of law”. The hood here does not make any Monk. Theground requires leave. It is also defective for being argumentative:Order 8 rule 2(3) Supreme Court Rules.

The objection to ground 4 is that the said ground does not flowfrom the judgment of the lower court being appealed as the issueof “privity and locus standi” did not form any ratio decidendi forthe decision appealed. It is trite that a ground of appeal isolatesand expatiates for attack the basis for the reasoning of the decisionbeing challenged: Star Deepwater Petroleum Ltd. & Ors. v. A.I.C.Ltd & Ors. (2015) LPELR – 25387 (SC).

The appellant, in the amended appellant’s reply brief, seemsto concede that ground 4, according to him, (which he says) “isat best redundant”. The point is well taken that ground 4 raisingthe issue of “privity and locus standi” does not attack any ratiodecidendi of the decision appealed. It just came from the clouds. Ithas no doubtful incompetence.

Finally, ground 5, complaining that “the learned Justicesof the Court of Appeal were in error for entertaining argumentson grounds/issues and making pronouncements regarding issuesof facts/mixed law and facts for arguments on which no leaveof the lower court was first had and obtained by the defendants/respondents” has no particulars of those grounds/issues on whichthe lower court allegedly, albeit erroneously, took arguments and

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made pronouncements on in its decision. Since the particulars ofthe alleged errors are not intrinsic in the ground, the particulars oferror for purposes of fair hearing (audi alteram partem in particular)must be separately set out. The argument of the appellant, that theparticulars are “embedded in the ground” and therefore that “thereis no legal requirement – that the particulars of (the) ground ofappeal must be set out separately”, is just ridiculously puerile.

The totality of all I have been labouring to say on the preliminaryobjection is that the six grounds attending to the originalnotice of appeal are all incompetent. The appeal, consequently, isincompetent and a nullity right from the time it was filed/lodged on25th February, 2010. The defect goes to the root of the appeal.

The appellant had purportedly amended the notice of appealon 11th November, 2017. On the amended notice of appeal ispredicated the amended brief and amended appellant’s reply briefrespectively field on 14th November, 2017.

A notice of appeal that is fundamentally defective, nulland void ab initio cannot be amended. It does not, in law, exist:B.A.S.F. (Nig.) Ltd. v. Faith Ent. Ltd. (2010) All FWLR 840 at 859(SC), (2010) 4 NWLR (Pt. 1183) 104. In law it is just a phantom.No amendment can validate it or resuscitate it as it is incurablydefective: N.B.N. v. N.E.T. (1986) 3 NWLR (Pt. 31) 667; Atuyeyev. Ashamu (1987) 1 NWLR (Pt. 49) 267; Odofin v. Agu (1992) 3NWLR (Pt. 229) 350; Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410.

Putting it more bluntly: an act or process that is a nullity cannotregularised. In Okafor & Ors. v. Attorney General, Anambra State(1991) 6 NWLR (Pt. 200) 659 at 678 – 679, Karibi-Whyte, JSC hadput it thus –

A nullity in law is a void act, an act that has no legalconsequence. The act is not only bad, and as was statedby Lord Denning, L.J in UAC Ltd. v. Macfoy (1961) 3All ER 1169, it is incurably bad.

See also Alh. B. U. Saleh v. Alh. Shettima Monguno & Ors (2006) 15NWLR (Pt. 1001) 26 at 74.This court lacks jurisdiction to entertainthe merits of an incompetent appeal: Kashadadi v. Noma (2007) 13NWLR (Pt. 1052) 510 at 525 – 526 (SC); Obijuru v. Ozims (1985) 2NWLR (Pt. 6) 167; Okoye v. Nwulu (2000) 2 NWLR (Pt. 653) 508.

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My verdict on this note is that this appeal being incurablydefective shall be and it is hereby struck-out.

The preliminary objection is hereby sustained. Appellantshall pay costs at N1,000,000.00 to the respondents jointly and/orseverally, and it is so ordered.

NGWUTA, J.S.C.: I read before now a draft copy of the leadjudgment just delivered by my learned brother, Eko, JSC and Iagree with the reasons leading to the conclusion, that the original 6grounds of appeal in the notice of appeal filed on 25/2/2010 wereall filed in violation of section 233(3) of the Constitution of theFederal Republic of Nigeria, 1999 as altered, as well as Order 8rule 3 of the Supreme Court Rules.

A party can appeal as of right that is without leave of court onlywhere the ground or grounds of appeal involves/involve questionof law only. See section 233(2)(a) of the Constitution. Where theground/grounds involves/involve question of mixed law and fact orfacts, such ground of appeal cannot be validly filed without leaveof the Court of Appeal or the Supreme Court first sought and had.See section 233(3) (supra) Order 8 rule 3 supra provides:-

“The notice of appeal shall set forth concisely andunder distinction leads the grounds upon which theappellant intends to rely at the hearing of the appealwithout any argument or narrative …..”

As demonstrated in the lead judgment the 6 original groundsof appeal consists of grounds of facts in contravention of section233(3) of the Constitution (supra) or argumentative in breach ofOrder 8 rule 2(3) (supra). The notice of appeal lied when it statedthat it was filed “as of right.”

A party appeals against the judgment or part thereof and aground of appeal must be founded on ratio decidendi in thejudgment. See Amoh v. Nzegwu (2010) 3 WRN 1 SC, reportedas Amobi v. Nzegwu (2014) 2 NWLR (Pt. 1392) 510; F.R.N.v. Mohammed (2014) FWLR (Pt. 730) 1234, (2014) 9 NWLR(Pt.1413) 551; and Ukeje v. Ukeje (2014) All FWLR (Pt. 730) 1323SC, (2014) 11 NWLR (Pt.1418) 384.

Ground four of the original grounds of appeal is predicated on“supposed resolution by the lower court” of privity and locus standi”

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of the plaintiff/appellant to maintain the account ……”. Whereas theissues of privity and locus standi were not raised before, and couldnot have been resolved, by the court below. While the court, trialor appellate, is bound to consider all issues properly raised by theparties in the case before it. See Chief Albert Abiodun Adeogun &Anor v. Hon. John O. Fashogbon & 2 Ors (2011) 2 – 3 SC (Pt. II)90, (2011) 8 NWLR (Pt.1250) 427, it must limit itself to issuesraised by the parties. See Sunday Adonri v. Madam Funike Ojo-Osagie (1994) 6 SCNJ 192, (1994) 6 NWLR (Pt.349) 131.

A notice of appeal is an initiating process. It is, as it were,the foundation of the appeal. A notice of appeal without a groundof appeal is null and void, so also a notice of appeal without acompetent ground of appeal is devoid of any legal attribute.

Section 233 of the Constitution (supra) and the rules Order8 rule 2 supra have provided certain conditions for initiatingan appeal. The legal consequence of failure to comply with theconditions in initiating an appeal is that the initiating process isnull and void and the court lacks jurisdiction in the matter as it isnot properly before it. See Peter Nemi & Ors v. The State (1994) 10SCNJ 1, reported as Ogugu v. State (1994) 9 NWLR (Pt. 366) 1;Central Bank of Nigeria v. Jacob Celadole & 2 Ors (2010) 5 – 7 SC(Pt. 1) 1.

Because the notice of appeal is a nullity any step purportedlytaken or process filed subsequently is also null and void for in thewords of the Law Lord, Lord Denning you cannot put somethingon nothing. See U.A.C. v. Macfoy (1961) 3 All ER 1169.

For the above and the fuller reasons in the lead judgment, Ialso sustain the respondents’ preliminary objection and strike outthe appeal for being incompetent.

ARIWOOLA, J.S.C.: I had the privilege of reading in draft the leadjudgment of my learned brother, Ejembi Eko, JSC, just delivered. Iam in agreement with the reasoning therein and conclusion arrivedthereat, that the appeal lacks merit and should be struck out. I toowill strike it out.

Appeal struck out.

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M. D. MUHAMMAD, J.S.C.: Having read in advance the leadjudgment of my learned brother, Ejembi Eko, JSC just deliveredand being in agreement with the reasoning and conclusion therein,I adopt same to strike out the incompetent appeal. I abide by theconsequential orders made in the lead judgment including the orderon costs.

KEKERE-EKUN, J.S.C.: I have had a preview of the judgmentof my learned brother, Ejembi Eko, JSC just delivered. I agree withthe reasoning and conclusion that there is merit in the preliminaryobjection raised to the competence of the appeal.

Even a cursory examination of the six grounds of appealreveals that all the complaints are on issues of facts or on mixedlaw and facts. My learned brother has examined all the groundswith a fire toothcomb. I agree with his findings,

By virtue of section 233(2)(a) of the 1999 Constitution, asamended, an appeal shall lie to the Supreme Court from decisionsof the Court of Appeal as of right where the ground of appealinvolves questions of law alone, from decisions in any civil orcriminal proceedings before the Court of Appeal. Section 233(3)provides that subject to the provisions of subsection (2), an appealshall lie from the decisions of the Court of Appeal to the SupremeCourt with leave of the Court of Appeal or the Supreme Court.

There is nothing in the record of appeal or the records of thiscourt to show that the requisite leave was sought or obtained fromeither court.

The effect of failure to obtain leave is that the originatingprocess before this court is incurably defective. You cannot putsomething on nothing and expect it to stand. The subsequentamendment of the defective notice of appeal could not cure theoriginal defect or infuse life into the process. See: Nwaigwe v.Okere (2008) 13 NWLR (Pt. 1105) 445; Awhinawhi v. Oteri (1984)5 SC 38; Atuyeye v. Ashamu (1987) 1 SC 333 @ 358, (1987) 1NWLR (Pt.49) 267.The defect has robbed the court of jurisdictionto hear the appeal. See: Allanah & Ors v. Kpolokwu & Ors. (2016)LPELR – 40724 (SC) @ 62 – 63 C – B, (2016) 6 NWLR (Pt.1507)1; Jev v. Iyortom (2014) 14 NWLR (Pt. 1428) 575; Yaro v. ArewaConstruction Ltd. (2007) 17 NWLR (Pt. 1063) 333.

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In the circumstances, I join my learned brother in sustainingthe preliminary objection. The appeal is hereby struck out for beingincompetent. I abide by the award of costs.

Appeal struck out.

Appeal struck out.

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