FBN PLC V. AMANYI (2020)

FIRST BANK NIGERIA PLC V. MR. ADIJI AMANYI & ORS

In The Court of Appeal of Nigeria

On Thursday, the 11th day of June, 2020

CA/MKD/118/2015

Before Their Lordships

IGNATIUS IGWE AGUBE, Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI, Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM, Justice of The Court of Appeal of Nigeria

Between

FIRST BANK NIGERIA PLC

(Main Branch Makurdi) Appellant

AND

1.MR. ADIJI AMANYI

2.MR. ODOGBOLE EIJE

3.OWOICHO ALECHENU

4.FELIX ELAGBUDU

5.COMMISSIONER OF POLICE, BENUESTATE

6.AREA COMMANDER OTUKPO AREACOMMAND

7.HON. BENJAMIN ODEH. Respondents

…………………….A…………………….

OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Makurdi Division, delivered on March 5, 2014, Coram Binta F.M. Nyako J., in which a garnishee order nisi made on 12/2/2014 was made absolute.

The facts leading to this appeal are, in summary, as follows: The 1st – 4th respondents herein were the applicants in Fundamental Rights proceedings, suit no. FHC/MKD/CS/14/2012, instituted at the trial court in which judgment was given in favour of the applicants against the 5th – 7th respondents herein jointly and severally. The said judgment gave rise to garnishee proceedings against the appellant herein as the garnishee. The 1st – 4th respondents as the judgment creditors had filed a post-judgment ex parte application seeking the following reliefs:

a. A garnishee order nisi attaching the sum of Five Million Naira (N5,000,000.00) only, being judgment debt standing in favour of the applicants as at 3rdJuly 2012, due and accruing to the judgment debtors/respondents in custody of the garnishee in Account Nos.2017854382, 2017692469, 2005221996, 201120060, 2017655572, 2018513165 and 6015204897.

b. An order prohibiting/restraining the garnishee from paying out or transferring the money in the said account Nos. 2017854382, 2017692469, 2005221996,201120060, 2017655572, 2018513165 and6015204897 pending when he shall show cause why the garnishee order nisi should not be made absolute.

By these orders, the 1st – 4th respondents as judgment creditors, sought to attach the sum of N5 million presumed to be domiciled with the appellant’s Main Branch, Makurdi. The order nisi was granted for the appellant as garnishee to show cause why the order. nisi should not be made

…………………….B…………………….

absolute. The trial court further ordered that the 5th – 7th respondents as judgment debtors as well as the appellant as garnishee, be put on notice before the return date,26/2/2014. On the said date, the appellant was absent as they were not served with a hearing notice. The matter was further adjourned to 5/3/2015. It is the position of the appellant that it was not served with a hearing notice for that date as well. But, that counsel to the applicants misled the court to grant an order absolute against the appellant as garnishee without a hearing notice being served on them. Upon service on them of an order absolute the appellant filed an application on 18/3/2014 praying the court to stay execution of the order absolute for lack of service and further to set aside the said order absolute. On 3/4/2014, the trial court declined to hear the applications on the ground that:

“The court has made the garnishee. It has already been made absolute. The court has become functus oficio (sic) as far as these garnishee proceedings are concerned.”

Being dissatisfied with the decision of the lower court, the appellant lodged the instant appeal against same in its notice of appeal filed on the 25/8/2015 and which was subsequently amended with the leave of this court. The amended notice of appeal filed on7/4/2016 was deemed properly filed and served on 21/5/2018 on four grounds of appeal.

The appellant and the 1st – 4th respondents filed briefs of argument in line with the Rules of this court. The 5th – 7th respondents filed no brief of argument, did not appear and were not represented at the hearing of the appeal. For the appellant, the amended appellant’s brief, settled by Terkaa, J. Aondo, Esq., was filed on 25/10/2018but deemed properly I filed and served

…………………….C…………………….

on 16/5/2019. The 1st – 4threspondents filed a notice of preliminary objection on 31/12/2018,which was arguer in the 1st – 4th respondents’ brief, settled by C.C. Umeh, Esq., and filed on 31/12/2018, but deemed properly filed and served on 16/5/2019. At the hearing of the appeal on 20/3/2020,Mr. Umeh relied on the arguments in support of the preliminary objection in urging the court to dismiss the appeal. The appellant filed no reply brief.

It is customary to first consider and resolve a preliminary objection before delving into the merits of an appeal; Ekemezie v. Ifeanacho & Ors (2019) LPELR-46518(SC); (2019) 6 NWLR (Pt.1668) 356; Salami v. Muse (2019) LPELR-47038(SC); Reported as Salami v. Alh. M.J.M. Muse Family (2019) 13 NWLR (Pt. 1689)301; Petgas Resources Ltd. v. Mbanefo (2017) LPELR- 42760(SC);(2018) 1 NWLR (Pt. 1601) 442. The reason for this legal position was restated in the case of Gusau v. APC & 3 Ors (2019) LPELR468897 (SC) at page 7, ELC (2019) 3240 SC page 1; (2019) 7NWLR (Pt. 1670) 183, per Augie, JSC in this manner:

“The position of the law is that a preliminary objection must be taken first before determining the merit of an appeal since its purpose is to terminate hearing of an appeal in limine either partially or totally. S.P.D.C.N. v. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed& Anor v. Olawunmi & Ors (1990) 4 SCNJ 23.In otherwords, the court should first consider a preliminary objection raised during an appeal, as a successful objection may the effect of disposing of the appeal. F.B.N. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216)247.”

I shall therefore first consider the preliminary objection in order to determine the competence of the appeal.

…………………….D…………………….

Preliminary Objection

The 1st – 4th respondents have challenged the competence of the instant appeal. The final order absolute was made by the trial court on 5/3/2014. The notice of appeal was filed on 25/8/2015,being a period of 17 months and 20 days after the order absolute was made. By virtue of the provisions of section 24(2)(a) of the Court of Appeal Act, 2004, the appellant ought to have filed the notice of appeal within three months. Failing which, the appellant may by section 24(4) of the Act seek extension of time to do so. It was argued that by these provisions, a notice of appeal which has exceeded three months from the time of a final decision requires leave and enlargement of time from this court for it to be validly filed by an appellant.

In the instant case, notice and grounds of appeal was filed by the appellant on 25/8/2015 against the final decision made on5/3/2014 without prior leave or enlargement of time from the Court of Appeal. It was submitted that this rendered the notice of appeal defective and incompetent, thereby divesting the court of jurisdiction to entertain this appeal. Reliance was placed on Creek view Property Development Co. Ltd. v. Ebun-Olu Adegboruwa (2011) 3 NWLR(Pt. 1234) 239 at 246 where this court, per Saulawa, JCA held:

“It is a trite and fundamental principle of law that an appeal which is flied out of time, without leave of court, is incompetent.”

The case of Oshianie v. Erhumwanse (1993) 3 NWLR (Pt.283) 603 was also cited and relied on.

…………………….E…………………….

It was therefore argued that this appeal has not come before this court by due process. The condition precedent for filing the notice of appeal within time or for seeking leave to file out of time had not been complied with, thereby robbing the court of jurisdiction exercisable in the matter. Reliance was placed on the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2SCNLR 341; Okarika & Ors v. Samuel & Anor (2013) Vol. 222LRCN (Pt. 2) 141 at 168; (2013) 7 NWLR (Pt. 1352) 19.The court was urged to decline jurisdiction over the instant appeal for being incompetent and dismiss the appeal; relying on Okolo v. Union Bank of Nig. Ltd. (2004) 3 NWLR (Pt. 859) 87 at 110.

The appellant filed no reply brief in response to the preliminary objection of the 1st – 4th respondents.

Resolution

An appellant would file a reply brief to respond to or answer any new or fresh point of-law raised by a respondent; Order 19rule 5 of the Court of Appeal Rules, 2016. See also: Onwubuya & Ors. v. Ikegbunam (2019) LPELR-49373(SC); (2019) 16 NWLR(Pt. 1697) 94; Awusa v. Nigerian Army (2018) LPELR-143 77(SC);(2018) 12 NWLR (Pt. 1634) 421; Mozie & Ors v. Chike Mbamalu & Ors (2006) LPELR-1922(SC); (2006) 15 NWLR (Pt. 1003) 466.As already noted, the appellant herein failed to file a reply brief to respond to the arguments on the competence of the appeal raised in the 1st – 4th respondents’ brief. The legal consequence of failure by an appellant to reply or answer such new or fresh point raised by the respondent is that appellant is deemed to have conceded to that point; Order 19 rule 10(1) of the Court of Appeal Rules. The apex court, per Onnoghen, JSC (as he then was) in Dada v. Dosunmu(2006) LPELR-909(SC) at page 12; (2006) 18 NWLR (Pt. 1010)134 opined:

…………………….F…………………….

“Failure to file a reply brief to a respondent’s brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent, and relevant in law.”

This legal position has been restated in a number of judicial pronouncements such as in: Godsgift v. State (2016) LPELR-40540(SC); (2016) 13 NWLR (Pt. 1530) 444; Wada v. Bello (2016)LPELR-47015(SC); (2016) 17 NWLR (Pt. 1542) 374; Kalu v. State (2017) LPELR-42101(SC); (2017) 14 NWLR (Pt. 1586) 522;Yanaty Petrochemical Ltd v. EFCC (2017) LPELR-43473(SC);(2018) 5 NWLR (Pt. 1611) 97.

In the instant appeal where the appellant failed to file a reply brief in response to the new issue on the competence of the appeal as was raised by the 1st – 4th respondents in their brief, by the foregoing judicial pronouncements, the appellant can be deemed to have conceded the point. However, notwithstanding the failure of an appellant to respond in opposition to a preliminary objection raised by a respondent, the position of the law is that the court must go on to fulfill its duty to consider and determine the preliminary objection on the merits of the law. Therefore, a preliminary objection that has not been opposed by the appellant is not to be automatically upheld by the court. It must be found to be sustainable in law by the court. Registered Trustees of The Foursquare Gospel Church in Nig. v. Okoisor & Ors (2006) LPELR 6161 (CA); (2007) 13 NWLR (Pt.1052) 471; Machika v. Imam (2010) LPELR-4448(CA).

Now, it is well settled that jurisdiction in adjudication is very fundamental. It is a threshold issue in any proceedings. The jurisdiction of a court connotes the power or authority of the

…………………….G…………………….

court to determine a dispute submitted to it by contending parties in any proceeding. It is the livewire and pillar on which the case stands. Okolo v. UBN Plc (2004) LPELR-2465(SC); (2004) 3 NWLR (Pt.859) 87; S.P.D.C. (Nig.) Ltd. v. Isaiah (2001) LPELR- 3205(SC);(2001) 11 NWLR (Pt. 723) 168; Dickson Ogunseinde Virya Farms Limited v. Societe Generale Bank Limited & Ors (2018) LPELR-43710(SC); reported as Ogunseinde v. Societe Generale Bank Ltd.(2018) 9 NWLR (Pt. 1624) 230. Jurisdiction has been likened to the foundation of a building, which if faulty, the building cannot stand. If found that a court has no jurisdiction to entertain a matter on the merits, then the case, literally, ceases to exist.

Therefore, once the jurisdiction of a court to entertain a matter is challenged, it must be resolved first before any other issue is considered. Petrojessica Enterprises Ltd. & Anor v. Leventis Technical Company Ltd. (1992) LPELR-2915 (SC); (1992) 5NWLR (Pt. 244) 675; Nwankwo v. Yar’adua (2010) 12 NWLR (Pt.1209) 518. The simple reason for this is that if the court goes ahead to entertain a matter over which it has no jurisdiction to adjudicate, its effort amounts to an exercise in futility. This is because if the case is decided without jurisdiction, there would be no redeeming features. The proceedings of the court would amount to a futile exercise and any ensuing decision would remain a nullity forever. Bank of Industry Ltd. v. Awojugbagbe Light Industries Ltd. (2018)LPELR-43812(SC); (2018) 6 NWLR (Pt. 1615) 220; A.P.G.A. v. Anyanwu (2014) LPELR-22182(SC); (2014) 7 NWLR (Pt. 1407)541; Goldmark Nigeria Ltd. v. Ibafon Co. Ltd. (2012) LPELR-9349(SC); (2012) 10 NWLR (Pt. 1308) 291; A.-G., Rivers State v. A.-G., Akwa Ibom State (2011) LPELR-633(SC); (2011) 8 NWLR(Pt. 1248) 31; Faith Enterprises Ltd v. B.A.S.F. (Nig.) Ltd. (2010) 4 NWLR (Pt. 1183) 104 SC; Onyenucheya v. Milad., Imo State(1997) 1 NWLR (Pt. 482) 429.

…………………….H…………………….

It is well settled that a court is competent to hear and decide a case, when:

(a)it is properly constituted as regards the number and qualifications of its members of the bench and no member is disqualified for one reason or another;

(b)the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c)the case before the court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These three ingredients must co-exist in order to vest jurisdiction in a court. Madukolu v. Nkemdilim (1962) LPELR-24023(SC); (1962) 1 All NLR 597; (1962) 2 NSCC 374; (1962)2 SCNLR 341; Skenconsult v. Ukey (1980) 1 SC 6 at 26, (1981)LPELR-3072(SC); Zubair v. Kolawole (2019) LPELR- 46928(SC);(2019) 11 NWLR (Pt. 1682) 66.The third ingredient is relevant for consideration in resolving the challenge to the jurisdiction of the court made by the 1st – 4th respondents in the instant appeal.

The right of appeal of a party who is aggrieved by a final judgment of the lower court sitting at first instance, is provided for in section 241 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and governed by the provisions of Section 24 of the Court of Appeal Act, 2004. Specifically, section24(2) of the Court of Appeal Act, 2004 provides:

…………………….I…………………….

“24(2) the period for the giving of notice of appeal or notice of application for leave to appeal are –

(a)in an appeal in a civil cause or matter, fourteen .I days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

(Emphasis mine).

Section 24(4) further provides:

“The Court of Appeal may extend the periods prescribed in subsections and of this section”.

By virtue of these unambiguous provisions, an appeal against a final decision must be lodged within three months of the delivery of the decision. Otherwise, the appellant ought to seek enlargement of time to do so. The grant of an application for enlargement of time within which to appeal is a matter of judicial discretion which must be exercised on established principles of law; Braithwaite v. Dalhatu (2016) LPELR- 40301(SC); (2016) 13 NWLR (Pt. 1528)32; Yesufu v. Co-Operative Bank Ltd. (1989) LPELR-3522(SC);(1989) 3 NWLR (Pt. 110) 483.

Where enlargement of time within which to appeal is required, an applicant, by the provisions of Order 6 rule 9(2), Court of Appeal Rules, 2016, must show:

1.Good and substantial reasons for failure to appeal within the prescribed period, and;

…………………….J…………………….

2.The grounds of appeal which prima facie show good cause why the appeal should be heard.

These two conditions must be satisfied together at the same time; Isiaka v. Ogundimu (2006) LPELR-1552(SC); (2006) 13NWLR (Pt. 997) 401; Ngere & Anor v. Okuruket ‘XIV’ & Ors (2014)LPELR-22883(SC); (2014) 11 NWLR (Pt. 1417) 147; Minister of Petroleum & Mineral Resources v. Expo-Shipping Line (Nig.) Ltd.(2010) LPELR- 3189(SC); (2010) 12 NWLR (Pt. 1208) 261.

An appeal against the decision of the lower court commences by the aggrieved party filing a notice of appeal; Order 7 rule 2 of the Rules of this court, 2016 (formerly Order 6 rule 2 of the Court of Appeal Rules, 2011). The notice of appeal is the foundation of the appeal. It initiates and opens the door for the exercise of appellate jurisdiction by the appellate court. SPDCN & Ors v. Agbara & Ors (2015) LPELR-25987(SC); (2016) 2 NWLR (Pt. 1496) 353.Therefore, a valid appeal can only be said to exist when there is a competent notice of appeal, which gives life to or initiates all other subsequent processes to be filed in the appeal. The Supreme Court, per the Noble Law Lord, Rhodes-Vivour, JSC, in Daniel v. INEC(2015) LPELR-24566(SC) at page 32; (2015) 9 NWLR (Pt. 1463)113, unequivocally stated:

“A notice of appeal is the originating process on which an appeal is based, so an appeal would collapse if the notice of appeal is defective. See: Thor Ltd. v. First City Monument Bank (2002) 2 SC (Pt. I) p.138; (2002)4 NWLR (Pt. 757) 427; Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 7 SC (Pt. 1) p.39; (1999) 10NWLR (Pt. 622) 242.”

Again, the apex court, per the erudite Law Lord, Nweze, JSC in F.R.N. v. Dairo & Ors (2015) LPELR-24303(SC) at pages24-25; (2015) 6 NWLR (Pt. 1454) 141 graphically put the legal consequence of a defective notice of appeal in this manner:

…………………….K…………………….

“As it is well known, it is a notice of appeal that initiates an appeal from a High Court to the lower court, (see, Order 6 rule 2(1) of the Court of Appeal Rules, 2011),Dingyadi v. INEC (2010) LPELR -952 (SC) 60.Putdifferently, the notice (actually, a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower court. Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993)331 Uwazurike v. A.-G., Federation (2007) All FWLR(Pt. 367) 834,835, paragraphs E-F; (2007) 8 NWLR(Pt. 1035) 1, and sustains it. Okotie v. Olughor (1995)5 SCNJ 217.

As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent. First Bank of Nigeria Plc v. T.S.A. Ind. Ltd. (2010) LPELR -1283 (SC) 49, paragraphs A-D; (2010) 5 NWLR (Pt. 1216) 247; Amadi v. Okoli(1977) 7 SC 57, 58; Adelekan v. ECU-Line NV (2006)12 NWLR (Pt.993) 33; Okolo v. UBN Ltd. (2004) 3NWLR (Pt.859) 87; Ikweki v. Ebele (2005) 11 NWLR(Pt. 936) 397; Akpan v. Bob (2010) 17 NWLR (Pt.1224) 421; General Electric Co. v. Akande (2010) 18NWLR (Pt.1225) 596; Thor v. F.C.M.B. Ltd. (2002) 2SCNJ 85; (2002) 4 NWLR (Pt. 757) 427; Ebokam v. Ekwenibe and Sons Trading Coy Ltd. (1999) 7 SCNJ77; (1999) 10 NWLR (Pt. 622) 242.

The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal court which must, as of necessity, strike out such a process. A.-G., Fed v. Guardian Newspapers Ltd (1999)9 NWLR (Pt.618) 187; Odunze v. Nwosu (2007) 13NWLR (Pt. 1050) 1; Agu v. Odofin (1992) 3 SCNJ 161,172 – 171; Ibeto v. Aminu (2007) 5 NWLR (Pt.l028)446; Danmusa v. Inuwa (2007) 17 NWLR (Pt.1063)391; Clev Josh Ltd. v. Tokimi (2008) 13 NWLR (Pt.l104) 422.

…………………….L…………………….

In effect, the absence of a competent notice of appeal, simply, translates to the non-existence of an appeal. Amadi v. Okoli (1972) 7 SC 57; CBN v. Okojie (2004)10 NWLR (Pt. 882) 488; Olanrewaju v. B.O.N. Ltd.(1994) 8 NWLR (Pt.364) 622; Olowokere v. African Newspapers Ltd. (1993) 5 NWLR (Pt. 295) 583; Erisiv. Idika (1987) 4 NWLR (Pt.66) 503; Josiah Cornelius Ltd v. Ezenwa (1996) 37 LRCN 618; (1996) 4 NWLR(Pt. 443) 391; Tukur v. Government of Gongola State(1988) 1 NWLR (Pt. 68) 39; First Bank of Nig. Plcv. Maiwada (2012) LPELR -9713 (SC) 187; (2013)5 NWLR (Pt. 1348) 444. This must be so for it is a condition precedent to any valid exercise-of appellate jurisdiction, Okeke Amadi v. Okeke Okoli (supra);Okotie v. Olughor (supra).”

(Emphasis mine).

See also: Raji v. University of Ilorin & Ors (2018) LPELR-44692(SC); (2018) 15 NWLR (Pt. 1642) 220; Aderibigbe v. Abidoye(2009) 10 NWLR (Pt.1150) 592; Yusuf v. Omokanye & Ors (2012)LPELR-15340(CA).

It follows therefore, that any vital and substantial defect in the notice of appeal would render the appeal incompetent, invalid and thereby rob the appellate court of the requisite jurisdiction to hear the appeal. Ezim v. Menakaya (2017) LPELR-42363(SC);.(2018)9 NWLR (Pt. 1623) 113; Uwazurike & Ors v. A.-G., Federation(2007) LPELR-3448(SC); (2007) 8 NWLR (Pt. 1035) 1; Orji v. INEC (2020) 13 LPELR-49525(CA). Thus, without a competent notice of appeal, the court would be bereft of jurisdiction to entertain the appeal, which would have no foundation. Madukolu & Ors v. Nkemdilim (supra); Skenconsult v. Ukey (supra); Umezinne v. FRN (2018) LPELR- 46334(SC); (2019) 3 NWLR (Pt. 1660)532; Adelekan v. Ecu-Line NV (2006) LPELR-113(SC); (2006) 12NWLR (Pt. 993) 33.A fortiori, where a notice of appeal has been filed out of time, sans an order of court enlarging time to do soup on fulfillment of the conditions for the grant of such an order, the notice of appeal cannot be said to be competent.

…………………….M…………………….

I consider it important to make further observations on the notice of appeal. The appellant was on 2/15/2018 granted leave by this court to amend the grounds and reliefs sought in their original notice of appeal, which was filed on 25/8/2015. Now, the said notice of appeal filed on 25/8/2015 is found at pages 308 – 311of the record of appeal and states that it is an appeal against the decision of the lower court delivered on 9/6/2015. The decision of9/6/2015, which is found at pages 295 – 297 of the record of appeal, was:

“An order of court granting leave to the applicants to levy execution by issuance of a writ of execution on and against the moveable properties of the defaulting respondent garnishee bank for failure/refusal to comply with courts’ order absolute of 5th day of March, 2014, directing her to pay applicants the sum of Five Million Naira (N5,000,000.00) judgment sum standing in favour of the applicants against the 1st to 3rdrespondents as at 3rd day of July, 2012.”

It is germane to note that on 14/4/2014, the appellant filed a notice of appeal against the decision of the lower court made on 5/3/2014, wherein the order absolute was made. The said notice of appeal is found at pages 148 – 152 of the record of appeal. This notice of appeal was however not the one amended by the appellant on 21/5/2018. It would appear that the appellant’s counsel mixed up both notices of appeal. While the notice of appeal filed on 14/4/2014 was against the decision of the lower court made on 5/3/2014,which actually is in issue in this appeal, the notice of appeal filed on25/8/2015, which was amended by the appellant and upon which the appellant’s brief was argued, was in respect of the decision of the lower court made on 9/6/2015. Thus, the decision of 5/3/2014was not the subject matter of appeal in the notice of appeal filed on25/8/2015, which was amended on 21/5/2018.

…………………….N…………………….

The motion on notice filed by the appellant to amend the notice of appeal which was granted by this court on 21/5/2018, sought the following order:

An order of this honourable court granting leave to the appellant/applicant to amend its notice of appeal filed on the 25/08/2015, by substituting grounds 1 with new sets of grounds 1, 2 a copy of which is attached to the affidavit in support and marked exhibit “FBN1”

In order words, what was amended were the grounds of appeal in the notice of appeal filed on 25/8/2015, which attacked the decision of the lower court made on 9/6/2015. The complaint of the appellant from the grounds of appeal on which the appellant’s brief was anchored, was however zeroed on the decision made by the lower court on 5/3/2014 granting the order absolute. The further change made by the appellant to premise the notice of appeal as now being in respect of the order of the lower court made on 5/3/2014granting the order absolute was made without leave of Court and therefore cannot fly to successfully amend the entire notice of appeal. Although these observations were not made by the counsel for the 1st – 4th respondents, they are germane to the competence of the notice of appeal in issue.

Now, assuming that the notice of appeal filed on 21/8/2015was indeed in respect of the decision made on 5/3/2014, by both constitutional and other statutory provisions, it was filed completely out of time and without leave of court enlarging the time to do so. The subsequent order amending the said notice of appeal cannot cure this defect. The Supreme Court, per Onnoghen, JSC (as he then was) in Nwaigwe & Ors v. Okere & Anor (2008) LPELR-2095(SC)at pages 23 – 24; (2008) 13 NWLR (Pt. 1105) 445 restated the position of the law thus:

…………………….O…………………….

“It is settled law that you cannot amend a fundamentally defective document such as notice of appeal so as to infuse live (sic) into it. In other words a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non-existent or dead. See Awhinawhi v. Oteri (1984) 5 SC 38; Atuyeye v. Ashamu (1987) 1 SC 333 at 358; (1987) 1 NWLR(Pt. 49) 267.”

Therefore, the obvious absence of a competent notice of appeal contaminated the appeal from its foundation. The axiom, that one cannot put something on nothing and expect it to stand has been adopted in our jurisprudence. Macfoy v. UAC (1961) 3 WLR 405at 1409; Mamman & Anor v. Hajo (2016) LPELR-40653(SC);(2016) 8 NWLR (Pt. 1515) 411; Hamzat & Anor v. Sanni & Ors(2015) LPELR-24302(SC); (2015) 5 NWLR (Pt. 1453) 486;Nigerian Army v. Samuel & Ors (2013) LPELR-20931(SC); (2013)14 NWLR (Pt. 1375) 466; VAB Petroleum Inc v. Momah (2013)LPELR- 19770(SC); (2013) 14 NWLR (Pt. 1374) 284. Where the notice of appeal is defective, no competent appeal can stand; Okwuosa v. Gomwalk & Ors (2017) LPELR- 41736(SC); (2017) 9NWLR (Pt. 1570) 259; Apeh & Ors v. PDP & Ors (2016) LPELR-40726(SC); (2016) 7 NWLR (Pt. 1510) 153. There was therefore no valid notice of appeal to ground the appeal of the appellants herein.

In the light of the foregoing findings, the preliminary objection is meritorious and is hereby upheld. The notice of appeal filed by the appellant was defective and therefore, incompetent. The only option now is to strike out the appeal in its entirety. First Bank of Nigeria Plc v. T.S.A. Industries Limited (2010) LPELR-1283(SC);(2010) 15 NWLR (Pt. 1216) 247; Allanah v. Kpolokwu (2016)LPELR- 40724 (SC); (2016) 6 NWLR (Pt. 1507) 1.

…………………….P…………………….

To my mind, it would be reasonable in this circumstance to have the resolution of the issues formulated for determination in the substantive appeal abide the enlistment of a competent appeal. Ikuepenikan v. State (2015) LPELR-24611(SC); (2015) 9 NWLR(Pt. 1465) 518; Uwazurike v. FRN (supra); Attorney-General of the Federation v. A.N.P.P. and Ors (2003) LPELR-630 (SC); (2003) 18NWLR (Pt. 851) 182. However, being an intermediate court, the law insists that the opinion of this court on all the issues raised before it must be aired for the benefit of the ultimate court, in the event of an appeal thereto. This would obviate the need to remit the appeal back to this court, should the apex court hold a contrary view on the preliminary objection; Xtoudos Services Nigeria Ltd. v. Taisei (WA)Ltd. (2006) 15 NWLR (Pt. 1003) 533; Okomalu v. Akinbode (2006)9 NWLR (Pt. 985) 338; NIPOL Ltd. v. Bioku Investment & Proco Ltd. (1992) 29 NSCC (Pt. 1) 606; (1992) 3 NWLR (Pt. 232) 727;Saint Gobain Pam S.A. v. International Consultants Incorporated(2015) LPELR-24663 (CA). I shall therefore proceed to examine the merits of the substantive appeal.

Substantive appeal.

The appellant distilled three issues for determination of the appeal as follows:

1.Whether the prior consent of the Attorney-General of the Federation was required under section 84(1) of the Sheriff and Civil Process Act where he is a neutral party in a transaction and proceedings which gave rise to an order nisi made absolute against the appellant. (Distilled from ground one of the notice of appeal)

…………………….Q…………………….

2.Whether the lower court was right to have made the order nisi dated 12th February, 2014 absolute when the appellant was not served with a hearing notice to appear and show cause on the 5th March, 2014. (Distilled from ground two of the notice of appeal)

3.If issue 2 is answered in the negative, whether the lower court was right to have made an order nisi dated12th February absolute when the appellant disputed its liability. (Distilled from ground three of the notice of appeal).

The 1st – 4th respondents adopted these issues as distilled by the appellant. I also adopt the said Issues.

Issue 1

I have read the submissions of counsel for the respective parties on this issue. The law is quite settled that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision. Ajaokuta Steel Company Limited v. Greenbay Investment & Securities Limited &Ors (2019) LPELR- 46929(SC); (2019) 8 NWLR (Pt. 1674) 213;F.R.N. v. Mohammed (2014) LPELR-22465(SC); (2014) 9 NWLR(Pt. 1413) 551; Ikweki & Ors v. Ebele & Anor. (2005) LPELR-1490(SC); (2005) 11 NWLR (Pt. 936) 397. In the same vein, issues for determination must arise from the grounds of appeal; Okoye & Ors v. Nigerian Construction & Furniture Co. Ltd. & Ors (1991)LPELR-2509(SC); (1991) 6 NWLR (Pt. 199) 501; Lau v. PDP &Ors (2017) LPELR-42800(SC); (2018) 4 NWLR (Pt. 1608) 60;Ajayi v. Total Nigeria Plc (2013) LPELR-20898(SC); (2013) 15NWLR (Pt. 1378) 423; Wachukwu & Anor v. Owunwanne & Anor(2011) LPELR-3466(SC); (2011) 14 NWLR (Pt. 1266) 1.A ground of appeal that does not arise from the decision on appeal, as well as the issue distilled from the said ground are both incompetent.

…………………….R…………………….

The decision in issue in the instant appeal was the decision made on 5/3/2014 by the lower court in which an order nisi made on 12/2/2014 was made absolute against the appellant as garnishee. The proceedings leading to the grant of the order nisi were concluded before the decision on 5/3/20 14, which is the subject matter of this appeal. The said proceedings leading to the grant of the order nisi and decision therein were not appealed against. Issues arising therefrom cannot be raised in the instant appeal. The complaint raised in ground 1 of the grounds of appeal as well as issue 1 distilled therefrom are therefore incompetent and are hereby struck out.

Issue 2

I have carefully considered the arguments of the parties on this issue. It must be noted that the orders of the lower court made on 12/2/2014 were, inter alia, for the garnishee to show cause and that the judgment debtors/respondents be put on notice, counsel to the 1st – 4th respondents, by letter dated 13/2/2014, notified the1st respondent herein, who was the 1st judgment debtor/respondent before the lower court, of the order nisi made by the trial court on12/2/2014 and also the return date of 26/2/2014, It is important to note that service to a judgment debtor of a return date is not the same as service to a garnishee.

In the appellant’s affidavit to show cause filed on 13/3/2014,found at pages 3 – 12 of the additional record compiled and transmitted by the 1st – 4th respondents on 5/11/2018 but deemed properly filed and served on 18/6/2019, the appellant deposed in paragraph 2(a):

…………………….S…………………….

“That the garnishee was served with order nisi of this honourable court in suit No. FHC/MKD/CS/14/2012on the 20/2/2014.”

There was no record to dispute this assertion. In other words, the appellant was served with the order nisi on 20/2/2014, about eight days after the said order nisi was made on 12/2/2014 with the return date on 26/2/2014. On the said 26/2/2014, the appellant was absent and the learned trial Judge further adjourned the matter to 5/3/2014 on the ground that the appellant was still within time to respond. I note that there was no further order made by the learned trial Judge for a hearing notice to issue on the appellant for the new date of 5/3/2014, I also note that the said date of 5/3/2014 was less than fourteen days from the actual date of service of the Order nisi on the appellant. See section 83(2) of the Sheriffs and Civil Process Act which provides that at least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor. The proceedings before the lower court on 5/3/2014, page 126 of the record of appeal, did not indicate that the appellant was served with a hearing notice for the said date but rather that the appellant was served with the order nisi.

Upon the application of counsel for the 1st – 4th respondents, the said order nisi was made absolute.

By a plethora of judicial pronouncements, it is established that serving of hearing notice on an adverse party is a pre-condition to the exercise of jurisdiction of the court as it is basic to the invocation of jurisdiction of the court. Where service of a hearing notice is required, it is incumbent on the court to ascertain that the adverse party was served. Indeed, contrary to the

…………………….T…………………….

arguments of counsel for the 1st – 4th respondents, the position of the law is that where a matter is adjourned in the absence of the adverse party, fair hearing demands that he be notified of the new date for hearing. The appellant was not in court on 26/2/2014. A hearing notice for the new date of 5/3/2014 ought to have been served on the appellant. Non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made thereby against the party who should have been served with the hearing notice but was not served is null and void. ENL Consortium Ltd. v. Shambilat Shelter (Nig.) Ltd. (2018) LPELR-43902(SC);(2018) 11 NWLR (Pt. 1630) 315; Achuzia v. Ogbomah (2016)LPELR-40050(SC); (2016) 11 NWLR (Pt. 1522) 59; Darma v. EcoBank (2017) LPELR-41663(SC); (2017) 9 NWLR (Pt. 1571) 480;Ezim v. Menakaya (supra); Leedo Presidential Motel Ltd. v. Bank of the North Limited & Anor (1998) LPELR-1775(SC); (1998) 10NWLR (Pt. 570) 353.

There being no proof that the appellant was served with hearing notice for the proceedings of 5/3/2014, the decision of the lower court made on 5/3/2014 was a nullity. It is on this basis that I would set the said order aside. Issue 2 is resolved in favour of the appellant.

Issue 3

The appellant has argued herein that the order absolute ought not to have been made when the appellant had deposed to the affidavit to show cause in which it supplied details of lien on the various accounts that were attached. I have considered the arguments of the parties and observe that the appellant appears to have lost sight of the fact that the affidavit to show cause was deposed to and filed after the order absolute had been made. The affidavit to show cause deposed to by the appellant is found at pages 3 – 12 of the additional record of appeal complied and

…………………….U…………………….

transmitted by the 1st- 4th respondents. The said affidavit was deposed to on 13/3/2014.

Certainly, the argument that the order absolute made on 5/3/2014ought not to have been made on ‘account’ of the depositions in the said affidavit filed on 13/3/2014 is surely and grossly misconceived. The trial court in making its decision on 5/3/2014 could not have considered depositions that were not made until 13/3/2014. Without much ado, I would resolve issue 3 against the appellant.

The issue of fair hearing, which borders on jurisdiction and which is a threshold issue, has been resolved in favour of the appellant. The proceedings of 5/3/2014, including the Order absolute which was made on that date, ought to be set aside for being a nullity. For this reason, the substantive appeal has merit. However, having upheld the preliminary objection and having found that the notice of appeal was defective thereby invalidating the appeal, this appeal is hereby struck out.

Parties are to bear their costs.

AGUBE, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, Hon. Justice O.A. Otisi, JCA; and am in complete agreement with his reasoning and conclusion.

The position of the law on the mode of raising preliminary objections as have been laid down by the Supreme Court in a plethora of cases which have been followed by this court, that where an objection is against the hearing of the appeal (in otherwords that the entire appeal is

…………………….V…………………….

incompetent), a notice of preliminary objection as filed by the learned counsel to the respondents would have been appropriate. Where however, the objection is against the competence of the grounds of appeal and the issues formulated therefrom as in this case, then the appropriate mode would have been by way of a motion on notice. See Dauda v. F.R.N. (2018)10 NWLR (Pt. 1626) 169; Adejumo v. Olawaiye (2014) 12 NWLR(Pt.1411) 252 and the very recent case of N.C.C. v. Motophone Ltd.(2019) 14 NWLR (Pt.1691) 1 at 24-25, paragraphs H-B.

Based or the above decided authorities and fuller reasons given by my learned brother in the lead judgment, I also upheld the preliminary objection of the 1st to 4th respondents that the notice of appeal filed by the appellant was defective, invalidating the appeal. It is hereby struck out.

EKANEM, J.C.A.: I had the privilege of reading in advance a copy of the lead judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein which I adopt as mine in striking out the appeal for being incompetent.

Appeal struck out

Representation

T. J. Aondo, Esq. – for the Appellant

C. C. Umeh, Esq. – for the Respondent

Citation: LOR (11/06/2020) CA

FIRST BANK NIGERIA PLC V. MR. ADIJI AMANYI & ORS

In The Court of Appeal of Nigeria

On Thursday, the 11th day of June, 2020

CA/MKD/118/2015

Before Their Lordships

IGNATIUS IGWE AGUBE, Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI, Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM, Justice of The Court of Appeal of Nigeria

Between

FIRST BANK NIGERIA PLC

(Main Branch Makurdi) Appellant

AND

1.MR. ADIJI AMANYI

2.MR. ODOGBOLE EIJE

3.OWOICHO ALECHENU

4.FELIX ELAGBUDU

5.COMMISSIONER OF POLICE, BENUESTATE

6.AREA COMMANDER OTUKPO AREACOMMAND

7.HON. BENJAMIN ODEH. Respondents

…………………….A…………………….

OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Makurdi Division, delivered on March 5, 2014, Coram Binta F.M. Nyako J., in which a garnishee order nisi made on 12/2/2014 was made absolute.

The facts leading to this appeal are, in summary, as follows: The 1st – 4th respondents herein were the applicants in Fundamental Rights proceedings, suit no. FHC/MKD/CS/14/2012, instituted at the trial court in which judgment was given in favour of the applicants against the 5th – 7th respondents herein jointly and severally. The said judgment gave rise to garnishee proceedings against the appellant herein as the garnishee. The 1st – 4th respondents as the judgment creditors had filed a post-judgment ex parte application seeking the following reliefs:

a. A garnishee order nisi attaching the sum of Five Million Naira (N5,000,000.00) only, being judgment debt standing in favour of the applicants as at 3rdJuly 2012, due and accruing to the judgment debtors/respondents in custody of the garnishee in Account Nos.2017854382, 2017692469, 2005221996, 201120060, 2017655572, 2018513165 and 6015204897.

b. An order prohibiting/restraining the garnishee from paying out or transferring the money in the said account Nos. 2017854382, 2017692469, 2005221996,201120060, 2017655572, 2018513165 and6015204897 pending when he shall show cause why the garnishee order nisi should not be made absolute.

By these orders, the 1st – 4th respondents as judgment creditors, sought to attach the sum of N5 million presumed to be domiciled with the appellant’s Main Branch, Makurdi. The order nisi was granted for the appellant as garnishee to show cause why the order. nisi should not be made

…………………….B…………………….

absolute. The trial court further ordered that the 5th – 7th respondents as judgment debtors as well as the appellant as garnishee, be put on notice before the return date,26/2/2014. On the said date, the appellant was absent as they were not served with a hearing notice. The matter was further adjourned to 5/3/2015. It is the position of the appellant that it was not served with a hearing notice for that date as well. But, that counsel to the applicants misled the court to grant an order absolute against the appellant as garnishee without a hearing notice being served on them. Upon service on them of an order absolute the appellant filed an application on 18/3/2014 praying the court to stay execution of the order absolute for lack of service and further to set aside the said order absolute. On 3/4/2014, the trial court declined to hear the applications on the ground that:

“The court has made the garnishee. It has already been made absolute. The court has become functus oficio (sic) as far as these garnishee proceedings are concerned.”

Being dissatisfied with the decision of the lower court, the appellant lodged the instant appeal against same in its notice of appeal filed on the 25/8/2015 and which was subsequently amended with the leave of this court. The amended notice of appeal filed on7/4/2016 was deemed properly filed and served on 21/5/2018 on four grounds of appeal.

The appellant and the 1st – 4th respondents filed briefs of argument in line with the Rules of this court. The 5th – 7th respondents filed no brief of argument, did not appear and were not represented at the hearing of the appeal. For the appellant, the amended appellant’s brief, settled by Terkaa, J. Aondo, Esq., was filed on 25/10/2018but deemed properly I filed and served

…………………….C…………………….

on 16/5/2019. The 1st – 4threspondents filed a notice of preliminary objection on 31/12/2018,which was arguer in the 1st – 4th respondents’ brief, settled by C.C. Umeh, Esq., and filed on 31/12/2018, but deemed properly filed and served on 16/5/2019. At the hearing of the appeal on 20/3/2020,Mr. Umeh relied on the arguments in support of the preliminary objection in urging the court to dismiss the appeal. The appellant filed no reply brief.

It is customary to first consider and resolve a preliminary objection before delving into the merits of an appeal; Ekemezie v. Ifeanacho & Ors (2019) LPELR-46518(SC); (2019) 6 NWLR (Pt.1668) 356; Salami v. Muse (2019) LPELR-47038(SC); Reported as Salami v. Alh. M.J.M. Muse Family (2019) 13 NWLR (Pt. 1689)301; Petgas Resources Ltd. v. Mbanefo (2017) LPELR- 42760(SC);(2018) 1 NWLR (Pt. 1601) 442. The reason for this legal position was restated in the case of Gusau v. APC & 3 Ors (2019) LPELR468897 (SC) at page 7, ELC (2019) 3240 SC page 1; (2019) 7NWLR (Pt. 1670) 183, per Augie, JSC in this manner:

“The position of the law is that a preliminary objection must be taken first before determining the merit of an appeal since its purpose is to terminate hearing of an appeal in limine either partially or totally. S.P.D.C.N. v. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed& Anor v. Olawunmi & Ors (1990) 4 SCNJ 23.In otherwords, the court should first consider a preliminary objection raised during an appeal, as a successful objection may the effect of disposing of the appeal. F.B.N. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216)247.”

I shall therefore first consider the preliminary objection in order to determine the competence of the appeal.

…………………….D…………………….

Preliminary Objection

The 1st – 4th respondents have challenged the competence of the instant appeal. The final order absolute was made by the trial court on 5/3/2014. The notice of appeal was filed on 25/8/2015,being a period of 17 months and 20 days after the order absolute was made. By virtue of the provisions of section 24(2)(a) of the Court of Appeal Act, 2004, the appellant ought to have filed the notice of appeal within three months. Failing which, the appellant may by section 24(4) of the Act seek extension of time to do so. It was argued that by these provisions, a notice of appeal which has exceeded three months from the time of a final decision requires leave and enlargement of time from this court for it to be validly filed by an appellant.

In the instant case, notice and grounds of appeal was filed by the appellant on 25/8/2015 against the final decision made on5/3/2014 without prior leave or enlargement of time from the Court of Appeal. It was submitted that this rendered the notice of appeal defective and incompetent, thereby divesting the court of jurisdiction to entertain this appeal. Reliance was placed on Creek view Property Development Co. Ltd. v. Ebun-Olu Adegboruwa (2011) 3 NWLR(Pt. 1234) 239 at 246 where this court, per Saulawa, JCA held:

“It is a trite and fundamental principle of law that an appeal which is flied out of time, without leave of court, is incompetent.”

The case of Oshianie v. Erhumwanse (1993) 3 NWLR (Pt.283) 603 was also cited and relied on.

…………………….E…………………….

It was therefore argued that this appeal has not come before this court by due process. The condition precedent for filing the notice of appeal within time or for seeking leave to file out of time had not been complied with, thereby robbing the court of jurisdiction exercisable in the matter. Reliance was placed on the case of Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2SCNLR 341; Okarika & Ors v. Samuel & Anor (2013) Vol. 222LRCN (Pt. 2) 141 at 168; (2013) 7 NWLR (Pt. 1352) 19.The court was urged to decline jurisdiction over the instant appeal for being incompetent and dismiss the appeal; relying on Okolo v. Union Bank of Nig. Ltd. (2004) 3 NWLR (Pt. 859) 87 at 110.

The appellant filed no reply brief in response to the preliminary objection of the 1st – 4th respondents.

Resolution

An appellant would file a reply brief to respond to or answer any new or fresh point of-law raised by a respondent; Order 19rule 5 of the Court of Appeal Rules, 2016. See also: Onwubuya & Ors. v. Ikegbunam (2019) LPELR-49373(SC); (2019) 16 NWLR(Pt. 1697) 94; Awusa v. Nigerian Army (2018) LPELR-143 77(SC);(2018) 12 NWLR (Pt. 1634) 421; Mozie & Ors v. Chike Mbamalu & Ors (2006) LPELR-1922(SC); (2006) 15 NWLR (Pt. 1003) 466.As already noted, the appellant herein failed to file a reply brief to respond to the arguments on the competence of the appeal raised in the 1st – 4th respondents’ brief. The legal consequence of failure by an appellant to reply or answer such new or fresh point raised by the respondent is that appellant is deemed to have conceded to that point; Order 19 rule 10(1) of the Court of Appeal Rules. The apex court, per Onnoghen, JSC (as he then was) in Dada v. Dosunmu(2006) LPELR-909(SC) at page 12; (2006) 18 NWLR (Pt. 1010)134 opined:

…………………….F…………………….

“Failure to file a reply brief to a respondent’s brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent, and relevant in law.”

This legal position has been restated in a number of judicial pronouncements such as in: Godsgift v. State (2016) LPELR-40540(SC); (2016) 13 NWLR (Pt. 1530) 444; Wada v. Bello (2016)LPELR-47015(SC); (2016) 17 NWLR (Pt. 1542) 374; Kalu v. State (2017) LPELR-42101(SC); (2017) 14 NWLR (Pt. 1586) 522;Yanaty Petrochemical Ltd v. EFCC (2017) LPELR-43473(SC);(2018) 5 NWLR (Pt. 1611) 97.

In the instant appeal where the appellant failed to file a reply brief in response to the new issue on the competence of the appeal as was raised by the 1st – 4th respondents in their brief, by the foregoing judicial pronouncements, the appellant can be deemed to have conceded the point. However, notwithstanding the failure of an appellant to respond in opposition to a preliminary objection raised by a respondent, the position of the law is that the court must go on to fulfill its duty to consider and determine the preliminary objection on the merits of the law. Therefore, a preliminary objection that has not been opposed by the appellant is not to be automatically upheld by the court. It must be found to be sustainable in law by the court. Registered Trustees of The Foursquare Gospel Church in Nig. v. Okoisor & Ors (2006) LPELR 6161 (CA); (2007) 13 NWLR (Pt.1052) 471; Machika v. Imam (2010) LPELR-4448(CA).

Now, it is well settled that jurisdiction in adjudication is very fundamental. It is a threshold issue in any proceedings. The jurisdiction of a court connotes the power or authority of the

…………………….G…………………….

court to determine a dispute submitted to it by contending parties in any proceeding. It is the livewire and pillar on which the case stands. Okolo v. UBN Plc (2004) LPELR-2465(SC); (2004) 3 NWLR (Pt.859) 87; S.P.D.C. (Nig.) Ltd. v. Isaiah (2001) LPELR- 3205(SC);(2001) 11 NWLR (Pt. 723) 168; Dickson Ogunseinde Virya Farms Limited v. Societe Generale Bank Limited & Ors (2018) LPELR-43710(SC); reported as Ogunseinde v. Societe Generale Bank Ltd.(2018) 9 NWLR (Pt. 1624) 230. Jurisdiction has been likened to the foundation of a building, which if faulty, the building cannot stand. If found that a court has no jurisdiction to entertain a matter on the merits, then the case, literally, ceases to exist.

Therefore, once the jurisdiction of a court to entertain a matter is challenged, it must be resolved first before any other issue is considered. Petrojessica Enterprises Ltd. & Anor v. Leventis Technical Company Ltd. (1992) LPELR-2915 (SC); (1992) 5NWLR (Pt. 244) 675; Nwankwo v. Yar’adua (2010) 12 NWLR (Pt.1209) 518. The simple reason for this is that if the court goes ahead to entertain a matter over which it has no jurisdiction to adjudicate, its effort amounts to an exercise in futility. This is because if the case is decided without jurisdiction, there would be no redeeming features. The proceedings of the court would amount to a futile exercise and any ensuing decision would remain a nullity forever. Bank of Industry Ltd. v. Awojugbagbe Light Industries Ltd. (2018)LPELR-43812(SC); (2018) 6 NWLR (Pt. 1615) 220; A.P.G.A. v. Anyanwu (2014) LPELR-22182(SC); (2014) 7 NWLR (Pt. 1407)541; Goldmark Nigeria Ltd. v. Ibafon Co. Ltd. (2012) LPELR-9349(SC); (2012) 10 NWLR (Pt. 1308) 291; A.-G., Rivers State v. A.-G., Akwa Ibom State (2011) LPELR-633(SC); (2011) 8 NWLR(Pt. 1248) 31; Faith Enterprises Ltd v. B.A.S.F. (Nig.) Ltd. (2010) 4 NWLR (Pt. 1183) 104 SC; Onyenucheya v. Milad., Imo State(1997) 1 NWLR (Pt. 482) 429.

…………………….H…………………….

It is well settled that a court is competent to hear and decide a case, when:

(a)it is properly constituted as regards the number and qualifications of its members of the bench and no member is disqualified for one reason or another;

(b)the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c)the case before the court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These three ingredients must co-exist in order to vest jurisdiction in a court. Madukolu v. Nkemdilim (1962) LPELR-24023(SC); (1962) 1 All NLR 597; (1962) 2 NSCC 374; (1962)2 SCNLR 341; Skenconsult v. Ukey (1980) 1 SC 6 at 26, (1981)LPELR-3072(SC); Zubair v. Kolawole (2019) LPELR- 46928(SC);(2019) 11 NWLR (Pt. 1682) 66.The third ingredient is relevant for consideration in resolving the challenge to the jurisdiction of the court made by the 1st – 4th respondents in the instant appeal.

The right of appeal of a party who is aggrieved by a final judgment of the lower court sitting at first instance, is provided for in section 241 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and governed by the provisions of Section 24 of the Court of Appeal Act, 2004. Specifically, section24(2) of the Court of Appeal Act, 2004 provides:

…………………….I…………………….

“24(2) the period for the giving of notice of appeal or notice of application for leave to appeal are –

(a)in an appeal in a civil cause or matter, fourteen .I days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

(Emphasis mine).

Section 24(4) further provides:

“The Court of Appeal may extend the periods prescribed in subsections and of this section”.

By virtue of these unambiguous provisions, an appeal against a final decision must be lodged within three months of the delivery of the decision. Otherwise, the appellant ought to seek enlargement of time to do so. The grant of an application for enlargement of time within which to appeal is a matter of judicial discretion which must be exercised on established principles of law; Braithwaite v. Dalhatu (2016) LPELR- 40301(SC); (2016) 13 NWLR (Pt. 1528)32; Yesufu v. Co-Operative Bank Ltd. (1989) LPELR-3522(SC);(1989) 3 NWLR (Pt. 110) 483.

Where enlargement of time within which to appeal is required, an applicant, by the provisions of Order 6 rule 9(2), Court of Appeal Rules, 2016, must show:

1.Good and substantial reasons for failure to appeal within the prescribed period, and;

…………………….J…………………….

2.The grounds of appeal which prima facie show good cause why the appeal should be heard.

These two conditions must be satisfied together at the same time; Isiaka v. Ogundimu (2006) LPELR-1552(SC); (2006) 13NWLR (Pt. 997) 401; Ngere & Anor v. Okuruket ‘XIV’ & Ors (2014)LPELR-22883(SC); (2014) 11 NWLR (Pt. 1417) 147; Minister of Petroleum & Mineral Resources v. Expo-Shipping Line (Nig.) Ltd.(2010) LPELR- 3189(SC); (2010) 12 NWLR (Pt. 1208) 261.

An appeal against the decision of the lower court commences by the aggrieved party filing a notice of appeal; Order 7 rule 2 of the Rules of this court, 2016 (formerly Order 6 rule 2 of the Court of Appeal Rules, 2011). The notice of appeal is the foundation of the appeal. It initiates and opens the door for the exercise of appellate jurisdiction by the appellate court. SPDCN & Ors v. Agbara & Ors (2015) LPELR-25987(SC); (2016) 2 NWLR (Pt. 1496) 353.Therefore, a valid appeal can only be said to exist when there is a competent notice of appeal, which gives life to or initiates all other subsequent processes to be filed in the appeal. The Supreme Court, per the Noble Law Lord, Rhodes-Vivour, JSC, in Daniel v. INEC(2015) LPELR-24566(SC) at page 32; (2015) 9 NWLR (Pt. 1463)113, unequivocally stated:

“A notice of appeal is the originating process on which an appeal is based, so an appeal would collapse if the notice of appeal is defective. See: Thor Ltd. v. First City Monument Bank (2002) 2 SC (Pt. I) p.138; (2002)4 NWLR (Pt. 757) 427; Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 7 SC (Pt. 1) p.39; (1999) 10NWLR (Pt. 622) 242.”

Again, the apex court, per the erudite Law Lord, Nweze, JSC in F.R.N. v. Dairo & Ors (2015) LPELR-24303(SC) at pages24-25; (2015) 6 NWLR (Pt. 1454) 141 graphically put the legal consequence of a defective notice of appeal in this manner:

…………………….K…………………….

“As it is well known, it is a notice of appeal that initiates an appeal from a High Court to the lower court, (see, Order 6 rule 2(1) of the Court of Appeal Rules, 2011),Dingyadi v. INEC (2010) LPELR -952 (SC) 60.Putdifferently, the notice (actually, a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower court. Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993)331 Uwazurike v. A.-G., Federation (2007) All FWLR(Pt. 367) 834,835, paragraphs E-F; (2007) 8 NWLR(Pt. 1035) 1, and sustains it. Okotie v. Olughor (1995)5 SCNJ 217.

As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent. First Bank of Nigeria Plc v. T.S.A. Ind. Ltd. (2010) LPELR -1283 (SC) 49, paragraphs A-D; (2010) 5 NWLR (Pt. 1216) 247; Amadi v. Okoli(1977) 7 SC 57, 58; Adelekan v. ECU-Line NV (2006)12 NWLR (Pt.993) 33; Okolo v. UBN Ltd. (2004) 3NWLR (Pt.859) 87; Ikweki v. Ebele (2005) 11 NWLR(Pt. 936) 397; Akpan v. Bob (2010) 17 NWLR (Pt.1224) 421; General Electric Co. v. Akande (2010) 18NWLR (Pt.1225) 596; Thor v. F.C.M.B. Ltd. (2002) 2SCNJ 85; (2002) 4 NWLR (Pt. 757) 427; Ebokam v. Ekwenibe and Sons Trading Coy Ltd. (1999) 7 SCNJ77; (1999) 10 NWLR (Pt. 622) 242.

The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal court which must, as of necessity, strike out such a process. A.-G., Fed v. Guardian Newspapers Ltd (1999)9 NWLR (Pt.618) 187; Odunze v. Nwosu (2007) 13NWLR (Pt. 1050) 1; Agu v. Odofin (1992) 3 SCNJ 161,172 – 171; Ibeto v. Aminu (2007) 5 NWLR (Pt.l028)446; Danmusa v. Inuwa (2007) 17 NWLR (Pt.1063)391; Clev Josh Ltd. v. Tokimi (2008) 13 NWLR (Pt.l104) 422.

…………………….L…………………….

In effect, the absence of a competent notice of appeal, simply, translates to the non-existence of an appeal. Amadi v. Okoli (1972) 7 SC 57; CBN v. Okojie (2004)10 NWLR (Pt. 882) 488; Olanrewaju v. B.O.N. Ltd.(1994) 8 NWLR (Pt.364) 622; Olowokere v. African Newspapers Ltd. (1993) 5 NWLR (Pt. 295) 583; Erisiv. Idika (1987) 4 NWLR (Pt.66) 503; Josiah Cornelius Ltd v. Ezenwa (1996) 37 LRCN 618; (1996) 4 NWLR(Pt. 443) 391; Tukur v. Government of Gongola State(1988) 1 NWLR (Pt. 68) 39; First Bank of Nig. Plcv. Maiwada (2012) LPELR -9713 (SC) 187; (2013)5 NWLR (Pt. 1348) 444. This must be so for it is a condition precedent to any valid exercise-of appellate jurisdiction, Okeke Amadi v. Okeke Okoli (supra);Okotie v. Olughor (supra).”

(Emphasis mine).

See also: Raji v. University of Ilorin & Ors (2018) LPELR-44692(SC); (2018) 15 NWLR (Pt. 1642) 220; Aderibigbe v. Abidoye(2009) 10 NWLR (Pt.1150) 592; Yusuf v. Omokanye & Ors (2012)LPELR-15340(CA).

It follows therefore, that any vital and substantial defect in the notice of appeal would render the appeal incompetent, invalid and thereby rob the appellate court of the requisite jurisdiction to hear the appeal. Ezim v. Menakaya (2017) LPELR-42363(SC);.(2018)9 NWLR (Pt. 1623) 113; Uwazurike & Ors v. A.-G., Federation(2007) LPELR-3448(SC); (2007) 8 NWLR (Pt. 1035) 1; Orji v. INEC (2020) 13 LPELR-49525(CA). Thus, without a competent notice of appeal, the court would be bereft of jurisdiction to entertain the appeal, which would have no foundation. Madukolu & Ors v. Nkemdilim (supra); Skenconsult v. Ukey (supra); Umezinne v. FRN (2018) LPELR- 46334(SC); (2019) 3 NWLR (Pt. 1660)532; Adelekan v. Ecu-Line NV (2006) LPELR-113(SC); (2006) 12NWLR (Pt. 993) 33.A fortiori, where a notice of appeal has been filed out of time, sans an order of court enlarging time to do soup on fulfillment of the conditions for the grant of such an order, the notice of appeal cannot be said to be competent.

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I consider it important to make further observations on the notice of appeal. The appellant was on 2/15/2018 granted leave by this court to amend the grounds and reliefs sought in their original notice of appeal, which was filed on 25/8/2015. Now, the said notice of appeal filed on 25/8/2015 is found at pages 308 – 311of the record of appeal and states that it is an appeal against the decision of the lower court delivered on 9/6/2015. The decision of9/6/2015, which is found at pages 295 – 297 of the record of appeal, was:

“An order of court granting leave to the applicants to levy execution by issuance of a writ of execution on and against the moveable properties of the defaulting respondent garnishee bank for failure/refusal to comply with courts’ order absolute of 5th day of March, 2014, directing her to pay applicants the sum of Five Million Naira (N5,000,000.00) judgment sum standing in favour of the applicants against the 1st to 3rdrespondents as at 3rd day of July, 2012.”

It is germane to note that on 14/4/2014, the appellant filed a notice of appeal against the decision of the lower court made on 5/3/2014, wherein the order absolute was made. The said notice of appeal is found at pages 148 – 152 of the record of appeal. This notice of appeal was however not the one amended by the appellant on 21/5/2018. It would appear that the appellant’s counsel mixed up both notices of appeal. While the notice of appeal filed on 14/4/2014 was against the decision of the lower court made on 5/3/2014,which actually is in issue in this appeal, the notice of appeal filed on25/8/2015, which was amended by the appellant and upon which the appellant’s brief was argued, was in respect of the decision of the lower court made on 9/6/2015. Thus, the decision of 5/3/2014was not the subject matter of appeal in the notice of appeal filed on25/8/2015, which was amended on 21/5/2018.

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The motion on notice filed by the appellant to amend the notice of appeal which was granted by this court on 21/5/2018, sought the following order:

An order of this honourable court granting leave to the appellant/applicant to amend its notice of appeal filed on the 25/08/2015, by substituting grounds 1 with new sets of grounds 1, 2 a copy of which is attached to the affidavit in support and marked exhibit “FBN1”

In order words, what was amended were the grounds of appeal in the notice of appeal filed on 25/8/2015, which attacked the decision of the lower court made on 9/6/2015. The complaint of the appellant from the grounds of appeal on which the appellant’s brief was anchored, was however zeroed on the decision made by the lower court on 5/3/2014 granting the order absolute. The further change made by the appellant to premise the notice of appeal as now being in respect of the order of the lower court made on 5/3/2014granting the order absolute was made without leave of Court and therefore cannot fly to successfully amend the entire notice of appeal. Although these observations were not made by the counsel for the 1st – 4th respondents, they are germane to the competence of the notice of appeal in issue.

Now, assuming that the notice of appeal filed on 21/8/2015was indeed in respect of the decision made on 5/3/2014, by both constitutional and other statutory provisions, it was filed completely out of time and without leave of court enlarging the time to do so. The subsequent order amending the said notice of appeal cannot cure this defect. The Supreme Court, per Onnoghen, JSC (as he then was) in Nwaigwe & Ors v. Okere & Anor (2008) LPELR-2095(SC)at pages 23 – 24; (2008) 13 NWLR (Pt. 1105) 445 restated the position of the law thus:

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“It is settled law that you cannot amend a fundamentally defective document such as notice of appeal so as to infuse live (sic) into it. In other words a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non-existent or dead. See Awhinawhi v. Oteri (1984) 5 SC 38; Atuyeye v. Ashamu (1987) 1 SC 333 at 358; (1987) 1 NWLR(Pt. 49) 267.”

Therefore, the obvious absence of a competent notice of appeal contaminated the appeal from its foundation. The axiom, that one cannot put something on nothing and expect it to stand has been adopted in our jurisprudence. Macfoy v. UAC (1961) 3 WLR 405at 1409; Mamman & Anor v. Hajo (2016) LPELR-40653(SC);(2016) 8 NWLR (Pt. 1515) 411; Hamzat & Anor v. Sanni & Ors(2015) LPELR-24302(SC); (2015) 5 NWLR (Pt. 1453) 486;Nigerian Army v. Samuel & Ors (2013) LPELR-20931(SC); (2013)14 NWLR (Pt. 1375) 466; VAB Petroleum Inc v. Momah (2013)LPELR- 19770(SC); (2013) 14 NWLR (Pt. 1374) 284. Where the notice of appeal is defective, no competent appeal can stand; Okwuosa v. Gomwalk & Ors (2017) LPELR- 41736(SC); (2017) 9NWLR (Pt. 1570) 259; Apeh & Ors v. PDP & Ors (2016) LPELR-40726(SC); (2016) 7 NWLR (Pt. 1510) 153. There was therefore no valid notice of appeal to ground the appeal of the appellants herein.

In the light of the foregoing findings, the preliminary objection is meritorious and is hereby upheld. The notice of appeal filed by the appellant was defective and therefore, incompetent. The only option now is to strike out the appeal in its entirety. First Bank of Nigeria Plc v. T.S.A. Industries Limited (2010) LPELR-1283(SC);(2010) 15 NWLR (Pt. 1216) 247; Allanah v. Kpolokwu (2016)LPELR- 40724 (SC); (2016) 6 NWLR (Pt. 1507) 1.

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To my mind, it would be reasonable in this circumstance to have the resolution of the issues formulated for determination in the substantive appeal abide the enlistment of a competent appeal. Ikuepenikan v. State (2015) LPELR-24611(SC); (2015) 9 NWLR(Pt. 1465) 518; Uwazurike v. FRN (supra); Attorney-General of the Federation v. A.N.P.P. and Ors (2003) LPELR-630 (SC); (2003) 18NWLR (Pt. 851) 182. However, being an intermediate court, the law insists that the opinion of this court on all the issues raised before it must be aired for the benefit of the ultimate court, in the event of an appeal thereto. This would obviate the need to remit the appeal back to this court, should the apex court hold a contrary view on the preliminary objection; Xtoudos Services Nigeria Ltd. v. Taisei (WA)Ltd. (2006) 15 NWLR (Pt. 1003) 533; Okomalu v. Akinbode (2006)9 NWLR (Pt. 985) 338; NIPOL Ltd. v. Bioku Investment & Proco Ltd. (1992) 29 NSCC (Pt. 1) 606; (1992) 3 NWLR (Pt. 232) 727;Saint Gobain Pam S.A. v. International Consultants Incorporated(2015) LPELR-24663 (CA). I shall therefore proceed to examine the merits of the substantive appeal.

Substantive appeal.

The appellant distilled three issues for determination of the appeal as follows:

1.Whether the prior consent of the Attorney-General of the Federation was required under section 84(1) of the Sheriff and Civil Process Act where he is a neutral party in a transaction and proceedings which gave rise to an order nisi made absolute against the appellant. (Distilled from ground one of the notice of appeal)

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2.Whether the lower court was right to have made the order nisi dated 12th February, 2014 absolute when the appellant was not served with a hearing notice to appear and show cause on the 5th March, 2014. (Distilled from ground two of the notice of appeal)

3.If issue 2 is answered in the negative, whether the lower court was right to have made an order nisi dated12th February absolute when the appellant disputed its liability. (Distilled from ground three of the notice of appeal).

The 1st – 4th respondents adopted these issues as distilled by the appellant. I also adopt the said Issues.

Issue 1

I have read the submissions of counsel for the respective parties on this issue. The law is quite settled that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision. Ajaokuta Steel Company Limited v. Greenbay Investment & Securities Limited &Ors (2019) LPELR- 46929(SC); (2019) 8 NWLR (Pt. 1674) 213;F.R.N. v. Mohammed (2014) LPELR-22465(SC); (2014) 9 NWLR(Pt. 1413) 551; Ikweki & Ors v. Ebele & Anor. (2005) LPELR-1490(SC); (2005) 11 NWLR (Pt. 936) 397. In the same vein, issues for determination must arise from the grounds of appeal; Okoye & Ors v. Nigerian Construction & Furniture Co. Ltd. & Ors (1991)LPELR-2509(SC); (1991) 6 NWLR (Pt. 199) 501; Lau v. PDP &Ors (2017) LPELR-42800(SC); (2018) 4 NWLR (Pt. 1608) 60;Ajayi v. Total Nigeria Plc (2013) LPELR-20898(SC); (2013) 15NWLR (Pt. 1378) 423; Wachukwu & Anor v. Owunwanne & Anor(2011) LPELR-3466(SC); (2011) 14 NWLR (Pt. 1266) 1.A ground of appeal that does not arise from the decision on appeal, as well as the issue distilled from the said ground are both incompetent.

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The decision in issue in the instant appeal was the decision made on 5/3/2014 by the lower court in which an order nisi made on 12/2/2014 was made absolute against the appellant as garnishee. The proceedings leading to the grant of the order nisi were concluded before the decision on 5/3/20 14, which is the subject matter of this appeal. The said proceedings leading to the grant of the order nisi and decision therein were not appealed against. Issues arising therefrom cannot be raised in the instant appeal. The complaint raised in ground 1 of the grounds of appeal as well as issue 1 distilled therefrom are therefore incompetent and are hereby struck out.

Issue 2

I have carefully considered the arguments of the parties on this issue. It must be noted that the orders of the lower court made on 12/2/2014 were, inter alia, for the garnishee to show cause and that the judgment debtors/respondents be put on notice, counsel to the 1st – 4th respondents, by letter dated 13/2/2014, notified the1st respondent herein, who was the 1st judgment debtor/respondent before the lower court, of the order nisi made by the trial court on12/2/2014 and also the return date of 26/2/2014, It is important to note that service to a judgment debtor of a return date is not the same as service to a garnishee.

In the appellant’s affidavit to show cause filed on 13/3/2014,found at pages 3 – 12 of the additional record compiled and transmitted by the 1st – 4th respondents on 5/11/2018 but deemed properly filed and served on 18/6/2019, the appellant deposed in paragraph 2(a):

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“That the garnishee was served with order nisi of this honourable court in suit No. FHC/MKD/CS/14/2012on the 20/2/2014.”

There was no record to dispute this assertion. In other words, the appellant was served with the order nisi on 20/2/2014, about eight days after the said order nisi was made on 12/2/2014 with the return date on 26/2/2014. On the said 26/2/2014, the appellant was absent and the learned trial Judge further adjourned the matter to 5/3/2014 on the ground that the appellant was still within time to respond. I note that there was no further order made by the learned trial Judge for a hearing notice to issue on the appellant for the new date of 5/3/2014, I also note that the said date of 5/3/2014 was less than fourteen days from the actual date of service of the Order nisi on the appellant. See section 83(2) of the Sheriffs and Civil Process Act which provides that at least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor. The proceedings before the lower court on 5/3/2014, page 126 of the record of appeal, did not indicate that the appellant was served with a hearing notice for the said date but rather that the appellant was served with the order nisi.

Upon the application of counsel for the 1st – 4th respondents, the said order nisi was made absolute.

By a plethora of judicial pronouncements, it is established that serving of hearing notice on an adverse party is a pre-condition to the exercise of jurisdiction of the court as it is basic to the invocation of jurisdiction of the court. Where service of a hearing notice is required, it is incumbent on the court to ascertain that the adverse party was served. Indeed, contrary to the

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arguments of counsel for the 1st – 4th respondents, the position of the law is that where a matter is adjourned in the absence of the adverse party, fair hearing demands that he be notified of the new date for hearing. The appellant was not in court on 26/2/2014. A hearing notice for the new date of 5/3/2014 ought to have been served on the appellant. Non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made thereby against the party who should have been served with the hearing notice but was not served is null and void. ENL Consortium Ltd. v. Shambilat Shelter (Nig.) Ltd. (2018) LPELR-43902(SC);(2018) 11 NWLR (Pt. 1630) 315; Achuzia v. Ogbomah (2016)LPELR-40050(SC); (2016) 11 NWLR (Pt. 1522) 59; Darma v. EcoBank (2017) LPELR-41663(SC); (2017) 9 NWLR (Pt. 1571) 480;Ezim v. Menakaya (supra); Leedo Presidential Motel Ltd. v. Bank of the North Limited & Anor (1998) LPELR-1775(SC); (1998) 10NWLR (Pt. 570) 353.

There being no proof that the appellant was served with hearing notice for the proceedings of 5/3/2014, the decision of the lower court made on 5/3/2014 was a nullity. It is on this basis that I would set the said order aside. Issue 2 is resolved in favour of the appellant.

Issue 3

The appellant has argued herein that the order absolute ought not to have been made when the appellant had deposed to the affidavit to show cause in which it supplied details of lien on the various accounts that were attached. I have considered the arguments of the parties and observe that the appellant appears to have lost sight of the fact that the affidavit to show cause was deposed to and filed after the order absolute had been made. The affidavit to show cause deposed to by the appellant is found at pages 3 – 12 of the additional record of appeal complied and

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transmitted by the 1st- 4th respondents. The said affidavit was deposed to on 13/3/2014.

Certainly, the argument that the order absolute made on 5/3/2014ought not to have been made on ‘account’ of the depositions in the said affidavit filed on 13/3/2014 is surely and grossly misconceived. The trial court in making its decision on 5/3/2014 could not have considered depositions that were not made until 13/3/2014. Without much ado, I would resolve issue 3 against the appellant.

The issue of fair hearing, which borders on jurisdiction and which is a threshold issue, has been resolved in favour of the appellant. The proceedings of 5/3/2014, including the Order absolute which was made on that date, ought to be set aside for being a nullity. For this reason, the substantive appeal has merit. However, having upheld the preliminary objection and having found that the notice of appeal was defective thereby invalidating the appeal, this appeal is hereby struck out.

Parties are to bear their costs.

AGUBE, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, Hon. Justice O.A. Otisi, JCA; and am in complete agreement with his reasoning and conclusion.

The position of the law on the mode of raising preliminary objections as have been laid down by the Supreme Court in a plethora of cases which have been followed by this court, that where an objection is against the hearing of the appeal (in otherwords that the entire appeal is

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incompetent), a notice of preliminary objection as filed by the learned counsel to the respondents would have been appropriate. Where however, the objection is against the competence of the grounds of appeal and the issues formulated therefrom as in this case, then the appropriate mode would have been by way of a motion on notice. See Dauda v. F.R.N. (2018)10 NWLR (Pt. 1626) 169; Adejumo v. Olawaiye (2014) 12 NWLR(Pt.1411) 252 and the very recent case of N.C.C. v. Motophone Ltd.(2019) 14 NWLR (Pt.1691) 1 at 24-25, paragraphs H-B.

Based or the above decided authorities and fuller reasons given by my learned brother in the lead judgment, I also upheld the preliminary objection of the 1st to 4th respondents that the notice of appeal filed by the appellant was defective, invalidating the appeal. It is hereby struck out.

EKANEM, J.C.A.: I had the privilege of reading in advance a copy of the lead judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein which I adopt as mine in striking out the appeal for being incompetent.

Appeal struck out

Representation

T. J. Aondo, Esq. – for the Appellant

C. C. Umeh, Esq. – for the Respondent

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