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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 16TH DAY OF JANUARY 2004

SC 161/1998

BETWEEN

OKOLO AND ANOTHER .................................................. PLAINTIFFS/APPELLANTS

AND

UNION BANK OF NIGERIA LTD ................................................ DEFENDANT/RESPONDENT

BEFORE: Uthman Mohammed; Sylvester Umaru Onu; Samson Odemwingie Uwaifo; Niki Tobi; Chukwudi Pats Acholonu, JJSC

ISSUE

Whether an appeal has been lodged competently where the Assistant Chief Registrar allowed an extension of time towards perfection of the conditions of appeal?

 

FACTS

On 6 July 1989 the appellants initiated proceedings against the respondent in the High Court, Warri. It was the appellants' case that the respondent failed to timeously expedite a foreign exchange agreement by which the appellants were to have transferred money to an overseas party. They claimed for an Order of Account, a refund of certain moneys and a perpetual injunction restraining the bank from alienating the appellants' mortgaged property. On the other hand, the respondents claimed foreclosure of its loan to the appellants.

On 31 October 1994 judgment was given partly in favour of the appellants. They were not satisfied, however, and appealed to the Court of Appeal. The respondent filed a cross-appeal. The Court of Appeal dismissed the appellants' appeal and allowed the respondent's cross-appeal. A further appeal from that decision was made to the Supreme Court where the respondent filed a further cross-appeal.

At the hearing, the respondent raised a preliminary objection. It contended that in the process leading to the appeal to the Court of Appeal, the conditions of appeal had not been perfected within the stipulated time and that the appellants, in order to fulfil the conditions, orally applied to the Assistant Chief Registrar of the trial court for an extension of time. This was granted. It was the respondent's contention that the appellants should have filed the relevant processes before the Court of Appeal and that their failure to do so had rendered the present appeal nugatory and that the court no longer had jurisdiction to hear the appeal.

The appeal was struck out. The cross-appeal was partly allowed.

 

HELD

1.      On the jurisdiction of the Supreme Court

Where a court lacks jurisdiction, there is in fact no case before it upon which to adjudicate. Nothing the parties may do can change this situation unless the action is revived de novo in a court with jurisdiction. Lack of jurisdiction can also not be waived by any of the parties - no one can vest jurisdiction in a court when there is none. The Registrar lacked the competence to extend time and the "order" he had made in pursuance of the appellants' request for an extension of time was null and void ab initio. Per Tobi, JSC at 455.

Where a court has no jurisdiction, the proper course for that court to take is not to dismiss the matter before it, but rather to strike out the action. The appellants failed to obtain an extension of time. The appeal was therefore incompetent and is hereby struck out. Per Tobi, JSC at 455.

 

2.      On filing of appeal

The judgment of the Court of Appeal cannot stand as the process of filing the appeal from the High Court to the Court of Appeal had been defective.

Thus the present appeal is incompetent and must be set aside. Per Mohammed, JSC at 471.

 

3.      On extension of time to fulfil conditions of appeal

The Assistant Chief Registrar of the High Court lacked the authority to extend the time within which the appellants were to fulfil the conditions of appeal to the Court of Appeal. That not only made the appeal to the Court of Appeal a nullity, but it also rendered the appeal to this Court a nullity and the appeal must therefore be struck out. Per Uwaifo, JSC at 473.

Appellants absent and not represented

Chief E.L. Akpofure, SAN, with him, Godwin Odiete for the respondent/cross appellant

 

The following cases were referred to in this judgment:

Nigeria

Adaka v Aneka (1997) 11 NWLR (Part 529) 417

Ajakaiye v Idehai (1994) 8 NWLR (Part 364) 511

Ajibola v Kolawole (1996) 10 NWLR (Part 476) 22

Akinbola v Plisson Fisko Nigeria Ltd (1988) 4 NWLR (Part 88) 335

Aladetoyinbo v Adewumi (1990) 6 NWLR (Part 154) 98

Alhaji Baba v Habib Nigeria Bank Ltd (2001) 7 NWLR (Part 712) 496

Bankole v Pelu (1991) 8 NWLR (Part 211) 523

Chukwueke v Akagha (1959) 3 ENLR 65

Dim v A-G, Federation (1986) 1 NWLR (Part 17) 471

Egbunike v A.C.B. Ltd (1995) 2 NWLR (Part 375) 34

Egonu v Egonu (1978) 11 and 12 SC 111

Ehot v The State (1993) 4 NWLR (Part 290) 644

Fadare v A-G, Oyo State (1982) 4 SC 1

Gombe v PW (Nigeria) Ltd (1995) 6 NWLR (Part 402) 402

HMS Ltd v First Bank of Nigeria Ltd (1991) 1 NWLR (Part 167) 390

Idika v Erisi (1988) 2 NWLR (Part 78) 563

Igbodim v Obianke (1976) 9-10 SC 179

Kurfi v Mohammed (1993) 2 NWLR (Part 277) 602

Madumere v Okafor (1996) 4 NWLR (Part 445) 637

Magnusson v Koiki (1993) 9 NWLR (Part 317) 287

Management Enterprises Ltd v Otusanya (1987) 2 NWLR (Part 55) 179

Mogaji v Cadbury (Nigeria) Ltd (1985) 2 NWLR (Part 7) 393

Ndiwe v Okocha (1992) 7 NWLR (Part 252) 129

Odofin v Agu (1992) 3 NWLR (Part 229) 350

Ogbuehi v Governor of Imo State (1995) 9 NWLR (Part 417) 53

Okafor v Alhaji Hashim (2001) 1 NWLR (Part 711) 88

Okpala v Ibeme (1989) 2 NWLR (Part 102) 208

Olodibia v NCC Ltd (1998) Vol. 53, 2507

Onowhosa v Oduizou (1999) 1 NWLR (Part 586) 173

Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 252, (1996) 34 LRCN 1

Pharmatek Ind Projects Ltd v Ofo (1996) 1 NWLR (Part 424) 332

Savage v Uwaechia (1972) 1 All NLR (Part 1) 241

Shie v Lokoja (1998) 3 NWLR (Part 540) 56

Union Bank of Nigeria Plc v Odusote Bookstores Ltd (1995) 9 NWLR (Part 421) 558

Union Bank of Nigeria v Professor Ozigi (1994) 3 NWLR (Part 333) 385

Yesufu v Kupper International NV (1996) 5 NWLR (Part 446) 17

 

Foreign

Solomon v Solomon and Co (1887) AC 22

 

The following statutes were referred to in this judgment:

Nigeria

Land Use Act 1978

 

The following rules were referred to in this judgment:

Nigeria

High Court (Civil Procedure) Rules 1988, Order 8 rule 28, 29

Court of Appeal Rules, Order 3 rule 15(1)

 

Tobi, JSC (Delivered the Leading Judgment):- This appeal concerns bank/customer relationship. The appellants are the customers. The respondent is the bank. The case of the appellants is that the respondents failed to comply with foreign exchange transactions involving the transfer abroad timeously of the foreign exchange or currency equivalent of N239,143 to cover cost of goods supplied to them by their overseas customers, thus causing business loss to the appellants. The appellants alleged negligence on the part of the respondent.

The appellants asked for the following reliefs:-

"(a) An Order for Account of all monies paid into and debited against second plaintiff's account or account with the defendant from 1986 till date and reversal of all wrongful and illegal debits made by the defendant on the said accounts from 1986 till date and payment over to the second plaintiff of all monies excessively debited with interest at prevent (sic) long bank rate.

(b)     An Order of Perpetual Injunction restraining the defendant by herself, her servants and/or agents or otherwise howsoever from auctioning, selling, disposing of or in any way interfering with first plaintiff's title to possession over the property lying and situate at Plot 16 Kodesoh Layout, Effurun.

(c)     An order for the immediate refund of the sum of £5,155.35 (British Pound) and/or its current Naira equivalent amount by the defendant to the plaintiff as directed at paragraph 16d(i) hereof.

(d)     The sum of N1,000,000 being damages suffered by the plaintiffs.

(e)     The sum of £5,155.35 (or its current equivalent in Naira) including the current bank interest rate of 30 percent, which said sum the defendant have failed, refused or neglected to refund to plaintiffs despite repeated demands."

The respondent did not accept liability. It rather counter-claimed as follows:-

"Wherefore the defendant seeks the order of this Honourable Court that the mortgage registered as No 42 at 42 in Vol. 523 at the Lands Registry in the Office in Benin City be enforced against the plaintiffs by for-enclosure and the delivery of possession to the defendant by the plaintiff the mortgaged property registered as No 45 at 45 in Vol. 273 at the Lands Registry in the office at Benin City in accordance with terms of the said mortgage. Defendant shall rely on its letters dated 29 March 1989 and 14 April 1989 at the trial."

After hearing evidence, the learned trial Judge, Bozimo, J (as she then was) delivered judgment. Each of the parties was not satisfied with the judgment. The appellants appealed. The respondent also cross-appealed. At the Court of Appeal, that court dismissed the appeal and allowed the cross-appeal in part. While the appellants have come on appeal to this Court, the respondent has also come to this Court on a cross-appeal.

Briefs were filed and duly exchanged. Mr Okiemute Odje, Counsel for the appellants, was absent when the appeal was argued. By the rules of this Court, the brief of the appellants and the reply brief were regarded as argued.

In the respondent's brief, learned Senior Advocate, Chief E.L. Akpofure, raised a preliminary objection. Learned Counsel for the appellants, Mr Okiemute Odje, in his appellants reply brief has answered the preliminary objection raised by the respondent. I think I should take the preliminary objection first.

At paragraph 3 of the respondent's brief, Chief Akpofure raised the preliminary objection in the following terms:-

"The respondent shall at the hearing of this appeal raise preliminary objection with the leave of this Honourable Court in accordance with the rules of this Honourable Court that this appeal is incompetent on the following ground:-

'That the conditions of appeal were not perfected within the stipulated period and no leave was sought by the appellants herein. This goes to the entire root and competence of this appeal as same bothers on jurisdiction'."

Chief Akpofure submitted that before an appellate court can successfully adjudicate over an appeal the conditions of appeal must be satisfied or fulfilled. Referring to at 161 of the Record, learned Senior Advocate contended that the appellants failed to perfect the conditions of appeal within the stipulated time. The appellants, instead of filing the relevant processes before the Court of Appeal, orally applied to the Assistant Chief Registrar of the trial court for extension of time within which to do so. The Assistant Chief Registrar purporting to act under Order 8 rules 28 and 29 of the High Court Civil Procedure Rules 1988 of the defunct Bendel State of Nigeria, now applicable to Delta State, purported to extend time by a period of twenty days with effect from 2 May 1995 in favour of the appellants. He argued that Order 8 rules 28 and 29 does not give the Registrar any power to extend the period within which conditions of appeal could be fulfilled. He submitted that what the Registrar did is a nullity. He therefore urged the court to dismiss the appeal as the court lacks jurisdiction to entertain same.

Learned Senior Advocate also contended that the appellants failed to pay the requisite fees in line with the additional reliefs for the sum of N1,000,000 and £5,155.35 (British pound). Counsel urged the court to refuse the appellants claim in relation to Reliefs 21D and E. As the relevant fees were not paid, the two reliefs were not properly before the court or they were otherwise incompetent, learned Senior Advocate argued. He cited Onwugbufor v Okoye (1996) 34 LRCN 1 at 38, 39, 40. He also urged the court to strike out the reliefs before the order dismissing the appeal is made.

To learned Senior Advocate, if the entire appeal is dismissed without first striking out the two reliefs, it will mean that the order made by the learned trial Judge in her judgment in relation to the two reliefs would still form part of the standing judgment of the trial court.

In his Reply to the preliminary objection, learned Counsel for the appellants, Mr Okiemute Odje, submitted in his brief that the respondent's notice of preliminary objection is misconceived and lacks merit and therefore ought to be overruled.

Learned Counsel submitted that since the issues raised in the preliminary objection have been conceded at the court below by the respondent, this Court cannot countenance the objection as it has no jurisdiction to entertain the same. He also argued that no ground of appeal was filed contending non-fulfilment of the conditions of appeal by the appellants. It is therefore beyond any thread of controversy that ground 1 of the notice of preliminary objection is a new or fresh issue raised for the first time in this Court without prior leave, learned Counsel submitted. He cited Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 252 at 261; Management Enterprises Ltd v Otusanya (1987) 2 NWLR (Part 55) 179; Bankole v Pelu (1991) 8 NWLR (Part 211) 523; Fadare v Attorney-General Oyo State (1982) 4 SC 1; Mogaji v Cadbury (Nigeria) Ltd (1985) 2 NWLR (Part 7) 393; Kurfi v Mohammed (1993) 2 NWLR (Part 277) 602; Aladetoyinbo v Adewumi (1990) 6 NWLR (Part 154) 98; Adaka v Aneka (1997) 11 NWLR (Part 529) 417 at 420. Citing HMS Ltd v First Bank of Nigeria Ltd (1991) 1 NWLR (Part 167) 390, learned Counsel submitted that parties cannot be punished for the blunders or errors of their Counsel.

Learned Counsel submitted that this Court should always do substantial justice and not stand on technicalities by punishing litigants for no fault of theirs. He cited Pharmatek Ind Projects Ltd v Ofo (1996) 1 NWLR (Part 424) 332 at 334; Ogbuehi v Governor of Imo State (1995) 9 NWLR (Part 417) 53 at 58-59. He urged the court to refuse the preliminary objection and allow the appeal.

Learned Counsel also raised preliminary objection in the cross-respondents brief of argument in the following terms:-

"Preliminary objection is raised 'as to the competence of the issues purportedly but ineffectually formulated from the cross-appellants' Grounds of Appeal."

Counsel relied on the following grounds:-

"(1)    Issues 1-5 formulated at 6-7 of the cross-appellants' brief of argument as arising for determination do not arise from and/or are not distilled from the grounds of appeal purportedly filed in this Court. Furthermore, the issues are not tied and/or not arranged under the relevant grounds of appeal as mandatorily stipulated in law.

(2)     By reason of (1) (supra), the said issues so far as they are not related to the said Grounds of Appeal are ab initio incompetent and/or incurably defective and ought to be dismissed and/or struck out.

(3)     The said incompetent issues being inescapably fresh or new issues are Infradig in the absence of prior leave sought and granted to raise them."

Relying on Odofin v Agu (1992) 3 NWLR (Part 229) 350 at 361 and Onowhosa v Oduizou (1999) 1 NWLR (Part 586) 173 at 181, learned Counsel urged the court to strike out the incompetent issues raised in the equally incompetent cross-appellant's brief of argument. He urged the court to dismiss the cross-appeal.

By way of preliminary issues, this appeal is a parade of preliminary objections, one each from the parties. Let me first take the one from the respondent. The appropriate provision in respect of the exercise of a Registrar of the power to hear and determine applications in the High Court is Order 8 rule 29. It provides as follows:-

"No Registrar other than one who is also a qualified legal practitioner shall have the power to hear and determine any application which by these rules is conferred."

As it is, rule 29 empowers only a Registrar who is a qualified legal practitioner to hear and determine any application, which by the rules is conferred upon a Registrar. I entirely agree with learned Senior Advocate that the only provision which deals with the Registrar is Order 3 rules 20(1) and 21(4) and these rules do not provide for or anticipate what the Assistant Chief Registrar did, that is, the extension of time by a period of twenty days within which to file the relevant processes.

Learned Counsel for the appellants merely submitted that the respondent conceded to the procedure at the court below without making reference to the appropriate page of the record. I am at a loss to justify the submission of Counsel. Even if that is the correct position, I do not think the respondent can be stopped from raising the objection.

Jurisdiction is the pillar upon which the entire case stands. Filing an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before the court for adjudication. The parties cannot be heard on the merits of the case. That is the end of the litigation, unless the action is filed in a court of competent jurisdiction, in which case the action is resuscitated de novo.

Jurisdiction, being the threshold of judicial power and judicialism and by extension extrinsic to the adjudication, parties cannot by connivance, acquiescence or collusion confer jurisdiction on a court. Where a court lacks jurisdiction, parties in the litigation cannot confer jurisdiction on the court. As a matter of law, lack of jurisdiction cannot be waived by one or both parties. It is a hard matter of law clearly beyond the compromise of the parties. This is because parties cannot conspire to vest jurisdiction in a court where there is none.

In view of the fact that the Registrar lacked the competence to extend time, the order he purportedly made is null and void ab initio.

The next ground of objection was the failure of the appellants to pay filing fees in respect of two reliefs. Payment of filing fees is a precondition to or condition precedent to the court's assumption of jurisdiction. Where filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it. This is because the rules of court make it mandatory for a party to pay filing fees. In this case, the respondent has clearly made out a case that the appellants did not pay filing fees for the additional Reliefs 21(d) and (e). Learned Counsel for the appellants did not say that the necessary statutory fees were paid.

In Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 252 where the appellants failed to pay the appropriate fees for an additional claim for forfeiture, the Supreme Court held that the claim was incompetent. Delivering the leading judgment, Iguh, JSC, said at 292 and I will quote him in extenso:-

"Quite apart from the fact that court orders must be obeyed as directed, it cannot be overemphasised that for a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made thereunder and governing the claims made such as the High Court Law and the rules of Anambra State. It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court's judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Ministry or non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of such prescribed fees have not been paid cannot be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomaly. In this present case, no payment whatsoever was made by the appellants in respect of their new claim for forfeiture. Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the court and ought to be struck out. In the circumstance, it becomes entirely idle and academic to examine the various reasons given by both courts below in refusing the appellants' claim for forfeiture which must be and is hereby struck out."

In the light of the above, I have not the slightest difficulty in accepting the invitation of Chief Akpofure to strike out the new Reliefs Nos. 21E and D and I hereby accordingly strike them out.

Learned Senior Advocate for the respondent has urged this Court to dismiss the appellant's appeal. He cited

"Order 3 & 20(1)" and "Order 8 & 1" of Supreme Court Rules as amended. I have some problem with the citations. I should not hide my ignorance, if it is an ignorance at all. I think the sign "&" stands for "and". If I am correct then I must say that the Supreme Court Rules do not extend to Order 20. Similarly, while there is an Order 8 the "&" following the 8 refers to 1. Could this be Order 1? If so, I must say that Order 1 does not provide for the dismissal of an appeal. If the sign refers to rule, then I must say that rule 20(1) of Order 3 of the Supreme Court Rules (as amended in 1999) does not deal with dismissal of appeal. There is some mix up somewhere.

But does the law say that when an appeal is incompetent on the ground that the court has no jurisdiction to entertain it, the appeal must be dismissed? It appears to me to be the law that where a court lacks jurisdiction the proper order to make is striking out of the action. In Okoye v Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Part 199) 501, the Supreme Court held that the proper order to make where a court has no jurisdiction to entertain an action is that of striking out. Akpata, JSC, said at 534:-

"I now turn to the question of whether the trial court has right to have dismissed the suits of the appellants or whether the majority decision of the Court of Appeal substituting an order of striking out the suits was proper in the circumstance. Although Order 29 rule 3 states that the court shall either dismiss the suit or order the defendant to answer the plaintiff's allegations of fact, I am in agreement with Oguntade and Uwaifo, JJCA that the proper order to make in the circumstance was an order striking out the plaintiffs' suits for lack of jurisdiction . . . In the instant case, however, as rightly pointed out by Uwaifo, JCA, as the suits stand no court has jurisdiction to entertain them. The plaintiffs can only validly react against the decision of Nwokedi, J, by way of an appeal."

In Gombe v PW (Nigeria) Ltd (1995) 6 NWLR (Part 402) 402, the Supreme Court also held that where a court holds that it has no jurisdiction to hear and determine the matter before it, the proper order to make is that of striking out the action and not dismissing same. See also Dim v Attorney-General of the Federation (1986) 1 NWLR (Part 17) 471; Akinbola v Plisson Fisko Nig Ltd (1988) 4 NWLR (Part 88) 335; Chief Okafor v Alhaji Hashim (2001) 1 NWLR (Part 711) 88; Alhaji Baba v Habid Nigeria Bank Ltd (2001) 7 NWLR (Part 712) 496.

In the light of the foregoing, I am in extreme difficulty to accept the invitation of learned Senior Advocate to dismiss the appeal. I would rather strike out the action instituted in the High Court of Delta State on the ground that the appellants failed to get proper extension of time to file appeal. Since the action gave rise to this appeal by the appellants, the appeal itself is incompetent and it is hereby equally struck out.

In the interest of fair hearing, the preliminary objection raised by Mr Okiemute Odje in the cross-respondents' brief will be taken here. The objection reads in part:-

". . . as Counsel can be heard on behalf of the appellants/cross respondents by way of argument upon preliminary objection as to the competence of the issues purportedly but ineffectually formulated from cross-appellants' grounds of appeal . . ."

Since I had earlier reproduced the grounds of the objection, I shall not repeat the exercise. What I should do now is to react to the objection. It is the law that issues must be formulated from the grounds of appeal. In other words, issues not formulated from the grounds of appeal will go to no issue. Issues should not be framed in the abstract but in concrete terms arising from and related to the grounds filed which represent the questions in controversy in the particular appeal. See Okpala v Ibeme (1989) 2 NWLR (Part 102) 208; Ehot v The State (1993) 4 NWLR (Part 290) 644; Idika v Erisi (1988) 2 NWLR (Part 78) 563; Madumere v Okafor (1996) 4 NWLR (Part 445) 637; Shie v Lokoja (1998) 3 NWLR (Part 540) 56.

Let me take each of the issues in relation to the grounds of appeal in the light of the preliminary objection. I will take the issues seriatim:

Issue No 1 is in the following terms:-

"Whether the Justices of the Court of Appeal were right in law when they held at 365 as follows:-

'The order of the lower court with regard to interest charged by the cross-appellant which is pegged at the interest rate of 11 percent is consistent with relief sought by the respondent.'" (Ground 5).

Ground 5 reads as follows:-

"The learned Justices of the Court of Appeal erred in law when they held at 44 of the judgment (per Achike, JCA) thus:-

'The order of the lower court will (sic) regard to interest charged by the cross-appellant which was pegged at the interest of 11 percent is consistent with the relief sought by the respondents'"

It is clear to me that the ground of appeal is the same as the issue. The only difference is in the format. While the ground of appeal takes the format of a ground, the issue takes the format of an issue. With the greatest respect to the learned Counsel, Mr Odje, I do not see the basis of the objection. The objection therefore fails.

Issue No 2 reads as follows:-

"Whether the Justices of the Court of Appeal were right in the law when they held as follows:-

'Be that as it may, it must be noted that the amount of the award is not contested nor is it covered by any ground of appeal. I am satisfied that having regard to the pleaded facts and the evidence lead (sic) by both parties coupled with the consideration made by the trial Judge in deciding the amount to be awarded by way of general damages it cannot be said that the award was not justifiable'."

Ground 6 reads as follows:-

"The learned Justices of the Court of Appeal erred in law when they held (per Achike, JCA) at 45 thus:-

'Be that as it may, it must be noted that the amount of the award is not contested nor is it covered by any ground of appeal. I am satisfied that having regard to the pleaded facts and the evidence led by both parties, coupled with the consideration made by the trial Judge in deciding the amount to be awarded by way of general damages it cannot be said that the award was not justifiable'."

This objection also fails.

Issue No 3 provides in the following terms:-

"Whether the Justices of the Court of Appeal were right in law (per Achike, JCA) when they held as follows:-

'Therefore in the absence of pleadings and evidence to support any unilateral increase of the rate of interest it seems that the only statutory approach to the mortgage should remain the amount mutually agreed by the parties and that is 11 percent. In the circumstances any interest paid or charged over and above the rate of 11 percent should be reversed in favour of the respondent.'" (Ground 8).

Ground 8 is in the following words:-

"The learned Justices of the Court of Appeal erred in law when they held (per Achike, JCA) at 52 of the judgment as follows:-

'Therefore in the absence of pleadings and evidence to support any unilateral increase of the rate of interest it seems that the only statutory approach to the mortgage should remain the amount mutually agreed by the parties and that is 11 percent. In the circumstances, any interest paid or charged over and above the rate of 11 percent should be reversed in favour of the respondent.'"

This objection accordingly fails.

Issue No 4 is in the following terms:

"Whether the Justices of the Court of Appeal were right in law when they held as follows:-

'The attack on this award is unjustified. Exhibit 'L-L2' as well as the evidence of DWL afford ample evidence which support the Judges' holding that the respondents were entitled to the refund of £5,155.35 (Five thousand one hundred and fifty five pounds thirty five pence) or its Naira equivalent.'" (Ground 9).

Ground 9, in clearly almost the same language, reads:-

"The learned Justices of the Court of Appeal erred in law to hold at 53 of the judgment (per Achike, JCA) thus:-

'The attack on this award is unjustified. Exhibit 'L-L2' as well as the evidence of DWL afforded ample evidence which support the Judges holding that the respondents were entitled to the refund of £5,155.35p or its naira equivalent.'"

This objection also fails.

And finally Issue No 5 reads thus:-

"Whether the judgment of the Justices of the Court of Appeal is in line with the weight of evidence." (Ground 1).

Ground 1 reads as follows:-

"The judgment of the Court of Appeal is against the weight of evidence."

This objection also fails.

My approach would look prolix but I do not have any alternative if I must take each of the objections one after the other. And that is what I have done. I am extremely surprised that learned Counsel can raise such objection in a very clear and obvious situation. Since this Court, like all other courts, must consider any preliminary objection, however unmeritorious, I am left with no choice than to take the objection. The objection was clearly out of place and a waste of the time of this Court. I will say no more.

I think I am now left with the cross appeal. Let me now deal with it. Chief Akpofure, SAN, taking Issues 1 and 3 together, submitted that what the first respondent asked for at 48 lines 2 to 5 is in conflict with the relief sought in paragraph 21B, at 42H, lines 6-13. Pointing out that in the evidence of 1st respondent, he requested the court to revise the entries debited to his account and also credit his account as against the relief which speaks of debiting and crediting the second respondent's account, learned Senior Advocate submitted that the evidence is at variance with the relief sought. It is therefore clear that in law the learned trial Judge ought not to have granted that relief nor were the Justices of the Court of Appeal right when they agreed with the learned trial Judge, learned Senior Advocate reasoned. He cited Egbunike v ACB Ltd (1995) 2 NWLR (Part 375) 34 at 51 and Igbodim v Obianke (1976) 9 and 10 SC 179 at 190.

Learned Counsel argued that no facts were pleaded and the evidence thus led goes to no issue and ought not to have been received. Such evidence wrongly received ought to and should be expunged. Once expunged, there will be nothing upon which the learned trial Judge and indeed the Justices of the Court of Appeal would have based their finding, learned Senior Advocate contended.

Counsel submitted that Relief 21(b) does not deal with the issue of interest chargeable or not, and that the issue of the interest charged by the cross-appellant was not raised in the relief. The issue of the interest rate being pegged at the rate of 11 percent does not also form part of the relief, learned Senior Advocate claimed.

Learned Senior Advocate submitted that a claim relating to either excessive charge of interest or otherwise is a specific relief. He also submitted that the case of Union Bank of Nigeria v Professor Ozigi (1994) 3 NWLR (Part 333) 385 was wrongly applied and that the case was overruled by the Supreme Court. To learned Senior Advocate, the law is that the bank is at liberty to charge interest at the rate from time to time stipulated by the bank. This situation, learned Senior Advocate contended, exists where a mortgage has been entered into which carry a clause like the one in the Ozigi's case.

Still dealing with the claim relating to arbitrary or excessive charge of interest, learned Senior Advocate submitted that the Court of Appeal fell into the same error as the trial court because there was no such relief. Citing Egonu v Egonu (1978) 11 and 12 SC 111 and Ajakaiye v Idehai (1994) 8 NWLR (Part 364) 511 at 526, learned Senior Advocate argued that a court of law cannot grant a relief that was not sought.

On Issue No 2, learned Senior Advocate adopted his submission on damages in the respondent's brief under the Notice of Preliminary Objection. He quoted the relevant pages in the respondent's brief. He contended that the issue of damages was raised in ground 6 by the cross-appellant and that the Court of Appeal was therefore in error when the court held that the issue was not covered by any ground of appeal.

It was the submission of learned Senior Advocate that paragraph 21(d) of the amended Statement of Claim is in law an independent and distinct cause of action and it must be complete by itself. He cited Savage v Uwaechia (1972) 1 All NLR (Part 1) 241 on the definition of a cause of action.

On the award of N50,000 general damages, learned Senior Advocate submitted that the learned trial Judge had no jurisdiction to "revise" (sic) herself to award the damages to the plaintiffs having held that there was no breach of contract and that no claim for negligence was incorporated in paragraph 21 of the amended Statement of Claim. He urged the court to set aside the damages awarded by the learned trial Judge.

On Issue No 4, learned Senior Advocate adopted the submission made in the respondent's brief under the second arm of the preliminary objection raised in the brief of the respondent to form part of the argument under this issue. Counsel submitted in the alternative that the learned Justices of the Court of Appeal were in error when they upheld the learned trial Judge's holding that the respondents were entitled to refund of £5,155.35 or its naira equivalent.

Learned Senior Advocate submitted that the relief or claim being sought by the first appellant who incidentally was the only witness who testified on behalf of the respondents talks of the defendant being ordered to pay to him what he paid to his overseas customers. Referring to paragraphs 1, 3, 4, 5, 6, 8, 9, 10, 17, 18(d) and (j) of the amended Statement of Claim, learned Senior Advocate submitted that the averments contained therein relate to the operation of an account by the second respondent as well as the business of import and export also carried out by the second respondent. The first respondent is only a managing director who used his property as a collateral in favour of his second respondent and also entered into a guarantee on behalf of the second respondent, learned Senior Advocate pointed out.

To learned Senior Advocate, whatever is being claimed must be tied in law to the second respondent with whom the appellants herein had a banking relationship. He argued that there is a magnitude of difference in law between a managing director of a company, in this case the 1st respondent, and the limited liability itself in this case the second respondent. In law the first respondent who is the managing director is an agent of the second respondent who is his disclosed principal, Counsel reasoned. Citing Yesufu v Kupper International NV (1996) 5 NWLR (Part 446) 17 at 28-29, Counsel argued that in suing therefore, the managing director cannot as an agent of a disclosed principal sue or be sued on a contract like this in the instant appeal. Pointing out that the evidence proffered and reproduced above under 4 relates to a claim being asked for by the first respondent for his person and not on behalf of the second respondent, learned Senior Advocate submitted that the award by the learned trial Judge in relation to the refund of the sum of £5,155.35p and which award was upheld by the Court of Appeal was erroneous and wrong in law.

Again, citing Magnusson v Koiki (1993) 9 NWLR (Part 317) 287 at 302-303 and Olodibia v NCC Ltd (1998) Vol. 53, 2507 at 2543, learned Senior Advocate submitted that no court can grant either a claim not sought for or one in respect of which evidence was not led. He submitted that the Court of Appeal was wrong in law when it held that the attack on the award of the refund of £5,155.35p or its naira equivalent was unjustified.

On Issue No 5, learned Senior Advocate called the attention of the court to the state of pleadings and contended that the respondents admitted being indebted to the cross-appellant, and that all that they were disputing was the amount. He claimed that from the record both from pleadings filed by the respondent herein and the evidence of the first appellant who was the only witness for the respondent, no figure was given by them as being the debt owed by the second respondent. He referred to the evidence of DW1 and DW2.

Calling in aid Ajibola v Kolawole (1996) 10 NWLR (Part 476) 22 at 30; Ndiwe v Okocha (1992) 7 NWLR (Part 252) 129 at 139-140, learned Senior Advocate argued that the award by the trial Judge in relation to the second respondent's indebtedness to the cross-appellant and which award was wrongly upheld by the Court of Appeal amounts to a judgment that is against the totality of the evidence adduced before the court. This also amounts to improper evaluation of evidence, Counsel submitted. He urged the court to allow the cross-appeal.

Learned Counsel for the cross-respondents, Mr Odjie, adopted his arguments in the appellants' brief, particularly all the arguments and judicial pronouncements in the list of authorities in general, in particular the case of Union Bank of Nigeria Plc v Odusote Bookstores Ltd (1995) 9 NWLR (Part 421) 558-594. Learned Counsel also adopted the conclusion contained at 19 and 20 of the appellants' brief as the logical and inescapable reliefs that this Court ought to make in order to prevent fraud and unjust enrichment.

Learned Counsel submitted that the long and rambling arguments proffered rather verbosely at 7-26 of the cross-appellants' incompetent brief of argument are solely and wholly out of point and therefore not germane to the just determination of this appeal. He described the arguments in the brief as "barren controversies" which are uncalculatedly aimless of direction and headless of consequence; and the same ought to be discountenanced.

Let me take the issues seriatim. In respect of Issue No 1, the learned trial Judge said at 120 of the record:-

"Since neither of the parties gave evidence as to the prevailing rate of interest as at 1986-1990 when the sum of N75,119.21 was said to be outstanding, I want to assume that interest was worked out at the rate of 11 percent per annum. In the circumstances judgment is hereby entered for the defendant against the second plaintiff in the sum of N75,119.21 being the sum outstanding as at 20 July 1990 as per the counter claim of the defendant. The sum shall attract interest at the rate of 11 percent per annum which was the agreed rate of interest at the time of the transaction."

Dealing with the same issue, Achike, JCA (as he then was) said:-

"Therefore in the absence of pleadings and evidence to support any unilateral increase of the rate of interest it seems that the only statutory approach to the mortgage should remain the amount mutually agreed by the parties and that is 11 percent. In the circumstances any interest paid or charged over and above the rate of 11 percent should be reversed in favour of the respondent."

Learned Senior Advocate did not deal with the important point made by Achike, JCA (as he then was) in respect of the cross-appellant not pleading what the learned Justice called "unilateral increase of the rate of interest". I would like to think that the point is central to the whole argument of learned Senior Advocate. The basic law is that parties are bound to plead all facts they intend to rely upon at the trial and facts not pleaded will go to no issue. One rationale behind this principle is that litigation must follow some restrictive order and not open-ended in order to save the time of both the courts and the litigants. If the procedure of pleadings was not introduced in litigation, parties search for evidence could not have ended and that should have protracted litigation beyond expectation.

Did the cross-appellant plead the unilateral increase of the rate of interest? I should refer to the counter-claim at 63 of the Record. It is of three paragraphs. The relief is in paragraph 10. It reads:-

"Wherefore the defendant seeks the orders of this Honourable Court that the mortgage registered as No 42 at 42 in Vol. 523 at the Lands Registry in the office in Benin City, be enforced against the plaintiffs by foreclosure and the delivery of possession to the defendant by the plaintiff the mortgaged property registered as No 45 at 45 in Vol. 273 at the Lands Registry in the office at Benin City in accordance with terms of the said mortgage. Defendant shall rely on its letters dated 29 March 1989 and 12 April 1989 at the trial."

Where is the pleading to support the unilateral increase of the rate of interest? Instead of dealing with this important point, learned Senior Advocate dealt with conflict of evidence of the first respondent and the relief sought. I think Achike, JCA (as he then was) is correct. The issue is therefore resolved in favour of the respondents (for the purpose of the cross appeal) and against the cross-appellant. Since Issue No 3 was argued together with Issue No 1 and rightly too for that matter, Issue No 3 is equally resolved in favour of the respondent and therefore against the cross-appellant.

On Issue No 2, the question is whether the Court of Appeal was right when it held that the "amount of the award is not contested nor is it covered by any ground of appeal". I think not. Although learned Senior Advocate relied on ground 6, I think the relevant ground is ground 5 at 156 spreading over to 157. The ground complained of the award of N50,000 damages. Particulars (d) is relevant. It reads:-

"(d) The learned trial Judge without basis found the defendant guilty of lack of negligence and awarded N50,000 as bonus to the plaintiff."

In the light of the above, the Court of Appeal, with respect, was clearly in error in coming to the conclusion that the amount of the award was not contested. It was seriously contested and the contest is ground 5, and so the Court of Appeal was also in error in concluding that there was no ground covering the complaint on the award of N50,000. Accordingly, I resolve this issue in favour of the cross-appellant.

I now come to Issue No 4. I do not think the Court of Appeal was right in coming to the conclusion that the learned trial Judge was right in holding that the plaintiffs/respondents were entitled to the refund of £5,155.35p or its naira equivalent and that Exhibits 'E'-'E2' and the evidence of DW1 supported the decision of the trial Judge.

The first plaintiff is a natural person while the second plaintiff is in law an artificial person. The dichotomy is important. particularly in the light of the evidence of the first plaintiff. He said:-

"The defendant wrote to my overseas partners that the money is yet to be sent. I represented the RDF in Nigeria and they were to take my agency. I was owing them £5,515. I scouted round and got foreign exchange and I went to the UK to pay them . . . I now want the court to order the defendant to pay the equivalent of the sterling. I have paid to my overseas customers at the prevailing rate plus interest."

It is clear from the above evidence that the refund of £5,515 was made by the first plaintiff, Patrick Izuagbe Okolo. This is borne out by the use of the personal pronoun "I" and "my" the possessive form of the personal pronoun "I".

The above gives rise to the pertinent question: who was the customer of the Union Bank of Nigeria Limited? Was he Patrick Izuagbe Okolo who gave the evidence or Pace Industries Nigeria Limited, the artificial or corporate person? Patrick Izuagbe Okolo was the Managing Director of Pace Industries Nigeria Limited. Are the two persons the same to the extent that they can change places at will? I think not.

In the often cited English case of Solomon v Solomon and Co (1887) AC 22, the House of Lords held that the company is in law a person distinct from Solomon who formed the company with his wife and five children. In Chief Yesufu v Kupper International NV (1996) 5 NWLR (Part 446) 17, this Court held that a director of a company is, in the eyes of the law, an agent of the company for which he acts and the general principle of the law of principal and agent would apply. Thus, where a director enters into a contract in the name of or purporting to bind the company, it is the company, the principal, which is liable on it, not the director.

The Court of Appeal held that the attack on Exhibits 'E-E2' is unjustified. With the greatest respect, the attack is justified because the contents of Exhibits 'E'-'E2' conflict with the evidence given by the first plaintiff. Exhibit 'E' reads in part:-

"Further to your correspondence with Pace Industries (Nigeria) Ltd on this matter, we are writing to ask you to release to Pace the monies held by yourselves, to cover this IBC"

The heading of the letter is "Re-IBC No 0971/81: £5,155.35 RED Inflatable".

In Exhibit 'E1', on the same subject, part of the letter reads:-

"On the 20 January 1989 we received a letter from the drawers Messrs RDF Limited asking us to release the local currency held in respect of this Bill to Pace . . . "

Finally, Exhibit 'E2' reads in part:-

"If you decide to withdraw this application and to instruct us to pay the naira cover to Pace Industries Nigeria Limited, please let us have the following . . . "

It is clear that in all the above exhibits, it was the second plaintiff, Pace Industries (Nigeria) Ltd that was the basis of the transaction; not the first plaintiff, Patrick Izuagbe Okolo. I expected the Court of Appeal to reconcile the contradiction in the evidence of the first appellant and Exhibits 'E'-'E2'. In the light of the above, I resolve Issue No 4 in favour of the cross-appellant.

I do not think I will waste any time on Issue No 5. It is the usual omnibus ground. Since I have dealt with the specific issues, Issue No 5 becomes otiose. I therefore resolve it in favour of the respondent, the Union Bank Nigeria Limited.

In sum, the cross-appeal succeeds in part. For the avoidance of doubt, the cross-appeal succeeds only in respect of the award of N50,000 damages and the refund of the sum of £5,155.35p or its naira equivalent. Of course, my order striking out the appellants' appeal remains. I make no order as to costs.

 

Mohammed, JSC:- I have had a preview of the judgment of my learned brother, Niki Tobi, JSC, in draft, and I agree with him that the main appeal is incompetent and ought to be struck out. I also agree that the cross-appeal succeeds in part.

I will only comment briefly on the notice of preliminary objection filed by Chief EL Akpofure the learned SAN, challenging the competency of the appeal filed by the appellants before the Court of Appeal; Benin City Division. Chief Akpofure submitted that when the appellants wanted to appeal from the decision of the High Court to the Court of Appeal they did not perfect the conditions of appeal within the stipulated time. I have looked at 161 of the record and found that the appellants were told by the Assistant Chief Registrar of the High Court of Delta State that they must perfect the conditions of appeal within 45 days. This the appellant failed to do and the Assistant Chief Registrar informed them that having failed to so their appeal was regarded as abandoned. Seven days later, from the proceedings at 63 of the record, the Assistant Chief Registrar wrote a letter to the learned Counsel for the appellants, Okiemute Odje, that he, in exercise of the powers conferred on him under Order 8 rules 28 and 29 of the High Court (Civil Procedure) Rules 1988, of the defunct Bendel State of Nigeria, applicable to Delta State, had extended by 20 days within which the appellants could perfect the conditions of appeal.

Learned Senior Advocate submitted that there is no provision in the High Court Rules giving power to the Registrar to extend the time within which the appellants could perfect the condition of appeal. There is also no such power given to the Assistant Chief Registrar by either the Court of Appeal Act or Court of Appeal Rules. Another learned Counsel who appeared for the respondent at the Court of Appeal raised similar preliminary objection before the hearing of the appeal at the Court of Appeal. The learned Justice of the Court of Appeal, Achike, JCA, (as he then was) who wrote the lead judgment considered the argument of the learned Counsel and dismissed the preliminary objection on the ground that Order 3 rule 15(1) of the Court of Appeal Rules provided that a respondent intending to rely upon a preliminary objection to the hearing of the appeal should give the appellant three clear days notice of his intention to raise the issue before the hearing of the appeal. The learned Justice ruled that the respondent did not give the required notice.

With respect to the learned Justice, the respondent had raised the preliminary objection in the respondent's brief and the learned Counsel for the appellants had treated the issue in the plaintiffs/appellants' reply brief. The Court of Appeal is therefore wrong to say that the respondent did not comply with the provision of Order 3 rule 15(1) of Court of Appeal Rules.

I will now consider whether the Assistant Chief Registrar of Delta High Court had jurisdiction to extend time for the appellants to comply with the conditions laid down for the prosecution of the appeal before the Court of Appeal. The Assistant Chief Registrar said that he extended the time in exercise of the powers conferred on him under Order 8 rules 28 and 29 of the High Court (Civil Procedure) Rules 1988 (supra). It is pertinent therefore to look into the rules which the Assistant Chief Registrar relied upon to extend the time. The Rules provide as follows:-

"28     A Registrar hearing any application by virtue of the provisions of these rules shall have and exercise all the powers conferred by these rules on the court or a Judge when dealing with such application.

29.     No Registrar other than one who is also a qualified legal practitioner shall have the power to hear and determine any application which by these rules is conferred upon a Registrar."

I have gone through the Rules and I agree with Chief Akporure, SAN that there is no provision in those Rules conferring powers on the Assistant Chief Registrar to extend time within which a party wishing to appeal from the High Court to the Court of Appeal can perfect the conditions of appeal. If a party wishes to appeal it is the responsibility of the Registrar to prepare the copies of the proceedings. The only obligation on the appellant is to make a deposit of a sum of money as may be ordered by the Registrar for the preparation of the records. In case of lateness to pay the estimated fees the court has power to enlarge the period of time - see Chukwueke v Akagha (1959) 3 ENLR 65. It is therefore only the court that has the power to extend the time and not the Registrar.

For these reasons and fuller reasons in the lead judgment I agree that this Notice of Preliminary Objection succeeds. This appeal is therefore incompetent since the judgment of the Court of Appeal cannot stand as the process of filing the appeal to the Court of Appeal from the High Court was defective. In consequence, I set aside the judgment of the Court of Appeal and strike out this appeal. I make no order as to costs.

 

Onu, JSC:- Having had the privilege of reading the judgment of my learned brother Niki Tobi, JSC just delivered, I agree with him entirely that for the various reasons he has given, the appellants' appeal be and is hereby accordingly struck out for incompetence while the cross - appeal in respect of the award of N50,000 damages and the refund of £5,155.35p succeeds. I too make no order as to costs.

 

Uwaifo, JSC:- I agree with the judgment of my learned brother Tobi, JSC that the appeal is incompetent; and also that Reliefs 21 (d) and (e) not having been paid for, could not be regarded as part of the reliefs sought.

The plaintiffs (now appellants) took out a Writ of Summons on 6 July, 1989 at the High Court, Warri. The claim was apparently drawn up in a rather incomprehensible manner. It read in continuous prose almost like one relief. It would appear that it was the learned trial Judge, in the course of preparing her judgment on 31 October 1994, that tried to breakdown the claim as stated on the Writ to various reliefs when she said:

"Although the claim as postulated on the Writ is very clumsily framed, the plaintiffs' claim can however be detangled (sic: disentangled) from the vast confusion. These are:-

1.      A declaration that the defendant and his agents are not entitled to sell first plaintiff's property at Plot 16 Kodeshoh Layout, Effurun because

(a)     The Governor did not give his consent to the Mortgage transaction between the parties before it was registered.

(b)     That consequently the transaction is null an void.

2.      A declaration that the alleged amount been (sic) claimed as the balance of overdraft/loan by the second plaintiff is not correct.

3.      A declaration that the charges on the overdraft/loan by virtue of some inflation is null and void.

4.      A declaration that the second plaintiff has fully paid all outstanding balance to the defendant.

5.      An order of perpetual injunction restraining the defendant by itself, its agents, servants from auctioning, selling or otherwise disposing of the first plaintiff's property that was mortgaged to the defendant."

But assuming that the above reliefs could be ascertained from "the vast confusion" stated in the Writ of Summons, the said reliefs would be those paid for at the time the Writ was filed. But on 26 February 1992, the plaintiffs filed an amended Statement of Claim and in paragraph 21 claimed as follows:-

"21. Wherefore the plaintiffs claim against the defendant as follows:-

(a)     A declaration that the defendant by herself, her servants and or agents is not entitled to sell, auction or deal in any other manner with first plaintiff's property lying and situate at Plot 16 Kodesoh Layout, Effurun and registered as No 45, at 45 in Volume 273 at the Lands Registry in Benin City in purported exercise of power of sale conferred under a Mortgage Deed between the first plaintiff and the defendant registered as Instrument No 45 at 45 in Volume 523 at the Lands Registry Benin City in that the prior consent of the Military Governor was not obtained before the Mortgage was effected in compliance with the Land Use Act 1978 consequently the same is null and void and unenforceable.

(b)     An Order for Account of all monies paid into and debited against second plaintiff's account or accounts with the defendant from 1986 till date and reversal of all wrongful and illegal debits made by the defendant on the said accounts from 1986 till date and payment over to the second plaintiff of all monies excessively debited with interest at present bank rate.

(c)     An Order of Perpetual Injunction restraining the defendant by herself, her servants and or agents or otherwise howsoever from auctioning, selling, disposing of or in any way interfering with first plaintiff's title to possession over the property lying and situate at Plot 16 Kodesoh Layout, Effurun.

(d)     The sum of N1,000,000 being damages suffered by the plaintiffs.

(e)     The sum of £5,155,35 (or its current equivalent in Naira) including the current bank interest rate of 30 percent, which said sum the defendant have failed, refused or neglected to refund to plaintiff's despite repeated demands."

The reliefs in paragraph 21(d) and (e) were obviously not paid for. But the judgment which was given by the learned trial Judge in favour of the plaintiffs was essentially in respect of those reliefs. The relief in paragraph 21(d) for N1,000,000 general damages was allowed up to N50,000 while the relief in paragraph 21(e) for £5,155.35 was granted in full. As has been shown, those reliefs could not be competently entertained, not having been lawfully claimed by paying the necessary fees for them: see Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 252. The cross-appeal concerns the award of those sums of money. Since the reliefs in question were incompetent the awards must be set aside and those reliefs struck out. The cross-appeal therefore succeeds to that extent.

As for the appeal itself, I agree with my learned brother Tobi, JSC that it is incompetent. The Assistant Chief Registrar of the High Court exercised power which he did not possess to extend the time within which to fulfil the conditions of appeal earlier given to the appellants. That made the appeal to the Court of Appeal a nullity; and accordingly to this Court a nullity. I too strike out the appeal. I make no order for costs.

 

Pats-Acholonu, JSC:- I have read in draft the judgment of my learned brother Niki Tobi, JSC and I agree with him.

I shall however make a few comments of mine. This appeal arose from a suit hitherto filed by the plaintiffs now the appellants. The matter was against the allegation by the appellants that the defendants now the respondents failed to effectuate in good time and in consonance with the agreement of the parties, the foreign exchange transaction by which the appellants would have transferred some money to their overseas partners.

The respondents had sought to dispose of the appellants' property on the ground that they were owed some money and the time limit to foreclose had arrived having regard to the nature of the agreement between the parties which is reflective of bank and customer relationship involving foreign exchange transmission of money. The appellants instituted an action and claimed for an order of account from 1986 till the date of the determination of the case, injunctive order restraining the respondents from in any way alienating their property used as security for the facility hitherto granted by the respondents to the appellants, and refund of the sum of £5,155.35 paid by the appellants to the respondents.

In the court below judgment was given to the respondents. The appellants appealed and the respondents equally cross-appealed. The appeal lodged by the appellants was dismissed while that of the defendants was allowed. Whereupon the appellants appealed again and as if to match the exuberance of the appellants in the appeal process, the respondents equally cross-appealed again to this Court.

However, in this Court the learned Counsel for the respondents raised a preliminary objection as to the competence of the main appeal based on the premise that the extension of time allowed to the appellants to fulfil the conditions of appeal which was made to the Assistant Registrar of the High Court instead of the High Court was irregular and void and therefore the Assistant Registrar having no jurisdiction on such matters, the order of extension given was invalid. Another leg of the objection was non-payment of the filing fees.

It is most unfortunate and I must say a regrettable situation that the learned Counsel for the appellants instead of replying to the points raised and answer same in the most fashionable way that should be redolent with the exposition of the law in the most forensic form resorted to the use of language considered intemperate that would make sailor boys blush. I deplore in its totality the unbridled use of expressions that detract from the elegance of a beautiful prose. Such expressions as:-

(a)     "This omission which resulted in monumental injustice of unwittingly rewarding an adjudged contract breaker, the respondent herein led to the appeal by the appellants to the lower court which fell into the same error as the trial court . . . "

(b)     "Nothing can be more unjust or unpalatable if not oppressive and arbitrary as has been the sad destiny of the appellants in this case who have had their hard-earned monies sequestrated for about 20 (twenty) years now."

(c)     "Tangentially, this said attitude tends to erode as it did in this case the confidence of the litigants who by the conflicting signals and/or inconsistent decisions based on very similar facts have queried whether justice was not of double standard and/or not actually denied them for reasons which were not legally tenable."

(d)     "Particularly damaging to its case was Exhibit 'L' that is a letter written to the appellants dated 2 September 1986 containing the blatant and patent mother of all falsehoods" are not in the least edifying and should not appear in the briefs.

The learned Counsel for the appellants talked of the duty of the court not to rely on technicalities and cited cases which do not apply in this instance. It must be stated unflinchingly that where the statute and subsidiary legislation prescribe the mode of initiating a process or proceedings before the court and it is not followed, or is spurned the only reasonable conclusion is that the party affected which fails to comply with the requirements cannot be taken seriously. That being the case, it is my view and I hold that there is no appeal to which this Court could be called upon to adjudicate. The invocation of the term technicalities is merely to confuse matters and a ploy to try to hoodwink the court to over look a very essential ingredient that would have given life to the appeal.

On the issue of the preliminary objection raised by the Counsel for the appellants in respect of the issues formulated in the brief of the cross-appellant, I have nothing to add to what my learned brother had already said. I would however comment tritely that I am surprised that a very senior Counsel as the appellants' Counsel could in all seriousness consider and be confident in raising those objections. It makes me wonder.

With regard to the cross-appeal filed by the respondents, there were framed 5 issues for determination. There is not much for me to add beyond stating that the arguments proffered by the (appellants) cross-respondents are replete with words which do not seriously address the issues being canvassed and agitated. Besides, the intemperate words detract from the exposition of the law one would have wished in a matter such as this. In the final result the cross-appeal succeeds. I abide by the consequential orders made in the lead judgment.

Appeal dismissed.