IN THE COURT OF APPEAL OF NIGERIA
ON THURSDAY, THE 27th of March, 2014
CA/A/406/2010
BETWEEN
ALHAJI ABDULKARDIR ABACHA .....Appellant
V.
KURASTIC NIGERIA LIMITED ......... Respondent
REPRESENTATION
F. R. Onoja, Esq. with, E.D. Wuyep (Mrs), Esq.; A. Adamu (Miss), Esq. and A. Aruga (Miss), Esq. for Appellant
Y. C. Maikyau, SAN, with Zubairu, Esq.; Zira Onnaguluchi, Esq. (Miss) and Obasi Obi-Nwagbueze, Esq. for Respondent
MAIN JUDGMENT
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):
On the 23rd day of December, 2005, Kurastic Nigeria Ltd. brought an ex-parte application before the High Court of the Federal Capital Territory, Abuja praying for leave to place a writ of summons under the Undefended List Procedure pursuant to Order 21 rule 1 and Order 11 rule 5(1)(d) of the High Court of the Capital Territory, Abuja (Civil Procedure) Rules, 2004 and the inherent jurisdiction of the Court. The second prayer was for leave to serve Alhaji Abdulkardir Abacha the originating processes and orders that may be subsequently issued by the Court by substituted means, namely, "By delivery of same to an adult inmate at the residence of the Defendant/Respondent at No. 189 Off, R. B. Dikko Road, Asokoro, Abuja, the venue where the transaction which gave rise to this suit was entered into." The application was supported by a thirteen paragraph affidavit deposed to by Senator Kura Mohammed, a Director of the applicant company/businessman. Upon grant of leave and service of the processes the gist of the application in paragraph 5(a)-(u) of Senator Kura Mohammed's affidavit in support of the motion on notice sets out in the substantive the following facts:
"5. That on the 10th of July, 2003, the Applicant, a public affairs consultant, entered into a Service Agreement with the Respondent whereby he engaged the services of the Applicant to facilitate the settlement with Federal Government of Nigeria, the dispute with respect to the Respondent's frozen bank accounts in Geneva Switzerland. A copy of the Service Agreement dated 10/7/2003 is attached hereto and marked Exhibit "A".
(a) That the Respondent by virtue of the above agreement empowered the Applicant to facilitate and settle all issues, matters and disputes relating to the sum of US $93.7m (Ninety Three Million, Seven Hundred Thousand US Dollars) listed in Accounts principally maintained by the Respondent in Geneva Switzerland, as listed hereunder:
(i) Union Bancaire Privee Geneva Account Name New: Newland Overseas Ltd. Amount frozen - US$8.7m (Eight Million, Seven Hundred Thousand US Dollars).
(ii) Banque Nationale De Paris Geneva, Ac. No.2366915 Genesis Holding Limited, Amount frozen US$15,381,881.00m (Fifteen Million, Three Hundred and Eighty One Thousand, Eight Hundred and Eighty One US Dollars).
(iii) Banque Nationale De Paris Geneva, Ac. No.5641832 Mercury Aviation Services Ltd. Amount frozen -US$13,541,173.00 (Thirteen Million, Five Hundred and Forty One Thousand, One Hundred and Seventy Three US Dollars).
(iv) Union Bancaire Privee Geneva, Ac. No. 2353295 - US$53,318,702.00 (Fifty Three Million, Three Hundred and Eighteen Thousand, Seven Hundred and Two US Dollars).
(v) Banque Nationale De Paris Geneva Ac. No.564088-8, Vectra Commodities, Amount frozen US$154,406 (One Hundred and Fifty Four Thousand, Four Hundred and Six US Dollars) making a total sum of US$91,096,272.00 (Ninety One Million, Ninety Six Thousand, Two Hundred and Seventy Two US Dollars).
(b) That the Respondent agreed to pay to the Applicant 10% of whatever sums that was settled in favour of the Respondent out of the total sum of US$91,096,272.00 (Ninety One Million, Ninety Six Thousand, Two Hundred and Seventy Two US Dollars).
(c) That the Applicant, based on the agreement aforementioned commenced the facilitation and performance of the above agreement by engaging several partners and professional firms in order to achieve settlement of all the disputes and issues between the Respondent and the Federal Government of Nigeria.
(d) That the Applicant set up, facilitated, requested for and held several meetings in Nigeria and in Geneva with the Federal Government of Nigeria represented by officers from the office of the National Security Adviser, the Special Investigation Panel, the Accountant General of the Federation and the Counsel to the Federal Government in Geneva, Switzerland (Mr. Enrico Motrini) on the one hand and the Respondent, the Principal Officer of the Applicant i.e. (myself and Alhaji Umaru Shinkafi -Marafan Sokoto) and the Solicitor to the Respondent in Geneva by name Mr. M.O. Costabela.
(e) That the Applicant pursued the Respondent's brief from all professional dimensions, to wit: political, economic, diplomatic, public affairs, etc, using compromise, consultation, mediation, diplomacy and understanding and above all, the goodwill of the principal partners of the Applicant.
(f) That the Applicant in addition to the above steps took part in negotiating what portion of the foreign funds was to be returned to the Government of Nigeria while the balance was held by the Respondent and it was on the basis of this that the Respondent's Solicitor Messrs M.O. Costabella Pirkl made the proposal contained in a letter to the Counsel representing the Federal Government of Nigeria, (Mr. Monfrini) dated 6th October, 2003. A copy of this letter is attached hereto and marked as Exhibit "B".
(g) That in view of the peculiar nature of the Respondent's case and more particularly the negative perception about the regime led by the Late General Sani Abacha, the assignment carried out by the Applicant presented several difficulties which had to be dealt with by the Applicant.
(h) That it took a long period of negotiation and the Applicant had to bring to bear the past experience of their principal officers and their good will within the Government of Nigeria to have the matter resolved and these facts are evinced by the following correspondences between the Lawyers to the Federal Government of Nigeria and the Counsel to the Respondent:
1. Letter dated September 5, 2003 by Mr. M. O. Costabella to Mr. Monfrini.
2. Letter dated September 9, 2003 from M. O. Costabella to Mr. Monfrini.
3. Letter dated 12th September, 2003 from Mr. Monfrini to M.O. Costabella.
4. Letter dated 5th December, 2003 written by M. O. Costabella to Mr. Monfrini.
These letters are respectively marked Exhibits "C", "D", "E" and "F" respectively.
(i) That on the basis of the negotiations as expressed in Exhibit "C" to "F" above, a final proposal or the settlement and by a letter dated 16th March, 2004 Monfrini Crettol representing the Federal Government of Nigeria, sought for the approval of His Excellency the President of the Federal Government of Nigeria to settle the matter on the terms of the proposal in the letter of 16/03/2004. A copy of this letter is hereto attached and marked Exhibit "G".
(j) That upon receipt of Exhibit "G" the President of the Federal Republic of Nigeria gave approval for the release of the Respondent's frozen funds less $50,000,000 (Fifty Million Dollars) which was to be paid into the account of the Federal Government of Nigeria as a condition precedent for the release of the funds.
(k) That the aforesaid contract was given by the President vide a letter dated 17th March, 2004. A copy of this letter is attached as Exhibit "H".
(l) That by a letter dated 16th April, 2004, the Respondent was intimated of the President's approval as per Exhibit "H" and having received an undertaking by the Respondent to pay the sum of $50,000,000 (Fifty Million Dollars) into the Federal Government of Nigeria Account as instructed by Exhibit "H", the Respondent's accounts were defrozen and all the actions against the Respondent and his companies were withdrawn. Copies of the two letters dated 16/4/2004 by Enrico Monfrini on behalf of the Federal Government of Nigeria are hereto attached and marked Exhibit "I1" and "I2" respectively.
(m) That based on the above extensive and exhaustive deliberations, negotiations and agreement, the Respondent benefited to the tune of USD $43,370,000 (Forty Three Million, Three Hundred and Seventy Thousand US Dollars) as his part of the settlement out of the frozen accounts.
(n) That to achieve the above result the Applicant employed the good will, wisdom, diplomacy and good office of its Principal Partners to wit: Alhaji Umaru A Shinkafi, Marafan Sokoto and Senator Kura Mohammed in the settlement with the Federal Government of Nigeria for the benefit of the Respondent.
(o) That by the above services the Applicant is entitled to the sum of US$4,370,000 representing 10% of the aggregate of USD$43,370,000 (Forty Three Million, Three Hundred and Seventy Thousand US Dollars) sum that is due to the Respondent in the settlement.
(p) That the Applicant made various expenditures including Airfares Abroad, Visa Fees, Hotel accommodation, logistic and contingency funds, etc, in the course of the above services for the benefit of the Respondent.
(q) That the Applicant made a demand for payment of his agreed undertaking and guaranteed 10% fees on the Respondent dated 20th July, 2004 herein marked Exhibit "J."
(r) That the Respondent despite the above Demand Notice, phone calls and verbal discussions has refused, failed and neglected to pay the Applicant the above consideration and professional fees and the Respondent has been out of Nigeria for more than 1 year and even attempts made to contact him abroad has been abortive because he has been evading the Applicant.
(s) That the Respondent's refusal, neglect and failure to pay the Applicant the agreed 10% fees is a violation of the service, agreement and a breach of the Applicant's right therefrom.
(t) That the Respondent has already benefited from the usage and services of the Applicant upon the settlement of the issues and matter with the Federal Government.
(u) That all suits, matters and cases pending hitherto against the Respondent has been discontinued and withdrawn against the Respondent by the Federal Government of Nigeria as a result of the Applicant's services."
Upon defreezing of the accounts and recovery of diverse sums, Alhaji Abdulkardir Abacha would not honour the agreement (Exhibit "A"). The endorsement on the writ of summons reads as follows:
"The Plaintiff's claim against the Defendant is for:
1. The sum of USD 4,370,000 (Four Million, Three Hundred and Seventy Thousand US Dollars) to the Plaintiff as professional fees representing 10% (ten percent) of the aggregate sum due to the defendant in the settlement agreement of USD 43,700,000 (Forty Three Million, Seven Hundred Thousand US Dollars) and upon the conclusion of the settlement facilitated and negotiated by the plaintiff.
2. Interest at the rate of 20% (twenty percent) of the sum of USD 4,370,000 (Four Million, Three Hundred and Seventy Thousand US Dollars) per annum on the above sum from the 20th of July, 2004 until judgment and thereafter 20% interest on the above sum until the final liquidation of the above sum.
3. The cost of this action."
The enrolled order of the Court below at page 17 of the printed record contains the hearing notice showing that "the cause was to be heard on the 6th day of March, 2006." Page 51 of the printed record contains the Certificate of Service endorsed by Mohammed Gaba, Senior Court Bailiff to the effect that service was effected on the 15th day of February, 2006 at 10:00am on Musa Ishaya. When the appellant did not appear his Lordship delivered judgment on the 6th day of March, 2006 in favour of Kurastic Nigeria Ltd. as per the writ of summons.
On the 20th day of February, 2007 Alhaji Abdulkardir Abacha brought a motion on notice supported by affidavit praying that the judgment should be set aside; that the Court should stay execution or further execution pending the determination of the application. The grounds for bringing the application were set out in the motion paper as follows:
"(1) The Defendant/Applicant was not served with the writ of summons and the originating processes in this action and no affidavit of the bailiff of the Court was filed to establish service before judgment was entered.
(2) The judgment was obtained by fraud.
Particulars of Fraud:
- The signature of the Applicant which appeared on the agreement dated 10th July, 2003 purportedly executed between the parties and upon which the judgment was based, is a forged signature and is not the signature of the Defendant/Applicant.
- The person who purportedly signed the agreement as a witness for the Defendant is unknown to the Defendant and the address given by the said witness, Shehu Musa Gaban, as Block 1 Flat 3, F.H.A. Maitama does not exist.
3. The agreement dated 10th July, 2003 purportedly executed between the parties upon which the plaintiff's action was based is an illegal agreement and cannot give rise to any cause of action.
The particulars of illegality are:-
(a) The agreement itself contravenes the provisions of Section 10 of the Corrupt Practices and Other Related Offences Act, 2000.
(b) The agreement is against public policy."
Because of the conflicting affidavits coupled with documentary exhibits his Lordship called for oral hearing to resolve the conflicts. Parties tendered oral and documentary exhibits. Thereafter his Lordship considered these before dismissing the application on 23rd day of September, 2010.
Alhaji Abdulkardir Abacha (whom I shall refer to as "the appellant") filed a Notice of Appeal against the ruling on 28th July, 2010. A brief of argument filed on 29th February, 2012 was with leave of this Court deemed amended on 2nd October, 2013. On 21st September, 2012 the appellant sought leave of Court to adduce further evidence on appeal. The application was granted on 9th May, 2013. The bundle of documents filed on 20th May, 2013 were on application deemed properly filed and served on the respondent on 2nd October, 2013.
The respondent filed brief on 29th February, 2012 which was, with leave of Court withdrawn and struck out on 15th January, 2014. The respondent relied on an Amended Respondent's brief filed on 3rd October, 2013. Furthermore, Kurastic Nigeria Ltd. whom I shall now call"the respondent/cross-appellant" was granted leave on 22nd February, 2012 to cross-appeal. The Notice of Cross-Appeal was filed on 27th February, 2012. The brief of argument of the Cross-appellant was filed on 29th February, 2012. Upon service the appellant/cross-respondent sought and was granted leave to file the Cross-respondent's brief with a deeming order on 2nd October, 2012 and a Reply brief on 4th June, 2012. When the appeal came up for hearing on 15th January, 2014 Maikyau, SAN representing the Cross-appellant sought and was granted leave to file reply brief on 13th January, 2014 with a deeming order. The application was granted and deemed duly filed and served on the Cross-respondent. When the appeal came up for hearing on 29th February, 2012 Maikyau, SAN abandoned the Cross-appellant's brief and it was accordingly struck out. The learned silk drew this Court's attention to the Notice of preliminary objection in the Amended Respondent's brief filed on 3rd October, 2013 at page 2 paragraph 3.0 to page 6 paragraph 4.10 challenging the competency of the Notice and grounds of appeal arguing that it should be struck out. Mr. Onoja, Esq. of Counsel also referred to the Reply brief filed on 4th June, 2010 to urge that the preliminary objection should be dismissed. Counsel adopted their respective briefs of argument.
The competency of this appeal has been challenged by way of preliminary objection on the grounds that the ruling of 23rd September, 2010 was an interlocutory decision, that all the grounds of appeal are of facts or mixed law and fact. In that case leave of the lower Court or this Court is required to render this appeal competent. The learned silk cited the following authorities in support of argument: Alou vs. Ngene (2007) 17 NWLR (Pt.1062) 163; Kida vs. Ogunmola (2006) 6 SC 147; Lori vs. Akukalia (1998) 12 NWLR (Pt.579) 592 at 610; Abidoye vs. Alawode (2001) 6 NWLR (Pt.709) 463 at 472; Ndayako vs. Mohammed (2005) 6 NWLR (Pt.920) 86 at 97.
Mr. Onoja, Esq. replied that the ruling of the lower Court being final, no leave of Court was required to appeal, citing Omonuwa vs. Oshodin (1985) 2 NWLR (Pt.10) 924; Kotun vs. Olasewere (2010) 1 NWLR (Pt.1175) 411 at 429 and Section 242 of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Learned Counsel urged that the objection should be dismissed.
My humble view is that the word "interlocutory" simply means "(of an order, judgment, appeal, etc) interim or temporary; not constituting a final resolution of the whole controversy."
"A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants."
Again in Clement C. Ebokam vs. Ekwenibe & Sons Trading Company Ltd. (1999) 7 SCNJ 77, Kalgo, JSC held at page 87 that:
"...Where the decisions of the Court under consideration clearly and wholly disposes of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then that decision is interlocutory. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order."
"241(1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance."
Hon. Justice L.H. Gummi, OFR, Chief Judge of the High Court of the Federal Capital Territory, Abuja was sitting at first instance when his Lordship delivered the ruling of 23rd September, 2010 hence the appellant does not require leave to appeal to this Court. The preliminary objection lacks merit and is dismissed.
I shall now consider the main appeal. The issues for determination are set out in the Appellant's Amended Brief filed on 20th May, 2013 but deemed properly filed on 2nd October, 2013 and adopted on 15th January, 2014 as follows:
"1. Whether the learned trial Chief Judge was right to distinguish the decision of the Supreme Court in the case of Kida vs. Ogunmola (2006) 6 SC 147 as not being applicable to the facts of the instant case. (Distilled from ground 2 of the Grounds of Appeal).
2. Whether the learned trial Chief Judge was right in the circumstances to hold from the available evidence, that the Appellant was properly served (Distilled from grounds 3, 4 and 5 of the Grounds of Appeal).
3. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement (Distilled from grounds 1, 6 and 7 of the Grounds of Appeal).
4. Whether the Ruling delivered on 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses (Distilled from ground 8 of the Grounds of Appeal)."
The respondent distilled the following issues for determination in the Amended Brief:
"1. Whether having regards to the evidence on record before the Court and the decision of the Supreme Court in the case of Kida vs. Ogunmola (2006) 6 SC 147, the learned trial Chief Judge was right in holding that the Appellant was properly served with the originating process? (Grounds 2, 3, 4 and 5).
2. Whether the judgment ought to have been set aside on grounds that it was obtained by fraud and that the judgment enforced an illegal agreement? (Grounds 1, 6 and 7).
3. Whether the ruling delivered on the 23rd September, 2010 is a nullity having regards to its delivery almost one year after conclusion of final addresses? (Ground 8)."
CROSS APPEAL:
The following issues are distilled in the Cross-appellant's brief filed on 29th February, 2012:
"1. Whether the trial Court was right to have held that the motion on Notice dated 20th February, 2007 purportedly prepared by a legal practitioner but signed by an unknown person, was a competent process? (Ground 1).
2. Whether in view of the provisions of Order 1 rule 2(b) of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, the Motion on Notice dated 20th February, 2007 was a proper mode of seeking to set aside the judgment of the trial Court delivered on the 6th of March, 2006 on the ground of fraud? (Ground 2)."
Barrister Onoja, Esq. who settled the Cross-respondent's brief on 4th June, 2012 with a deeming order of 2nd October, 2012 distilled the following issue for determination:
"Whether the learned trial Judge was right to have dismissed the preliminary objection to the competence of the motion on Notice dated 20th February, 2007 in the circumstances."
I have read the ruling of the lower Court and considered the issues formulated by the learned Counsel to the appellant in main or substantive appeal as well as in the cross-appeal. I am of the humble view that the determination of issues 1 and 2 in the appellant's brief and issues 1 and 2 in the Cross-appeal, considered together will determine the fate of the substantive appeal and Cross-appeal. The determination of other issues in the appeal and cross-appeal will become academic.
APPELLANT'S ISSUES 1 AND 2:
The argument is that at the time of filing the ex-parte application seeking leave to prosecute the claims in the lower Court under the Undefended List Procedure, the claimant was aware that the appellant was not living at No.189, Off R.B. Dikko Road, Asokoro, Abuja but abroad. His Lordship ought not to have granted leave that the processes should be served by substituted means. Learned Counsel referred to paragraph 5(r) of the affidavit in support of the ex-parte application sworn to by Senator Kura Mohammed on 23rd December, 2005 read together with the findings of the learned Chief Judge at page 115 Vol.2 of the printed record, citing Kida vs. Ogunmola (2006) 6 SC 147.
Counsel further contended that a Certificate and affidavit of service are rebuttable prima facie evidence of service of the processes, citing Order 11 rule 28 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004; Kennedy vs. INEC (2009) 1 NWLR (Pt. 1123) 614 at 639; Orija vs. Akogun (2009) 10 NWLR (Pt. 1150) 437; Omoniyi vs. Alabi (2004) 6 NWLR (Pt. 870) 551. Learned Counsel traced the importance of service of the processes with reference to Abubakar vs. Yar'adua (2008) 4 NWLR (Pt. 1078) 468 at 512; Okoye vs. Centre Point Merchant Banks Ltd. (2008) 15 NWLR (Pt. 1110) 335 at 357 and Babale vs. Eze (2011) 11 NWLR (Pt. 1257) 48 at 123. Counsel argued that if the learned Chief Judge had properly evaluated the oral and documentary evidence, it could be seen that there was no evidence to show the address at which the processes were delivered.
Learned Counsel argued that issues 1, and 2 be determined in favour of the appellant.
ISSUE 3 AND 4:
It was further contended that the learned Chief Judge heard oral and documentary evidence and on 30th September, 2009 adjourned to 29th October, 2009 for ruling. But that was not to be. The ruling was delivered on 23rd October, 2010 contrary to the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered: First Bank vs. Adepetu & Co. (2009) 11 NWLR (Pt. 1151) 156and the unreported decision of this Court in Alh. Ndalile & Ors. vs. Etsu Nupe & Ors. (CA/A/178/2003) delivered on 16th day of June, 2010.
Besides, the learned Chief Judge had sufficient evidence to have found that the agreement (Exhibit "A") upon which the respondent founded his cause of action was a forgery. Moreover, the cause of action was illegal, constituting a contravention of Section 10 of the Corrupt Practices and Other Related Offences Act, 2000, and against public policy. That once fraud is established, it vitiates proceedings, citing Tor Tiv vs. Wombo (1996) 9 NWLR (Pt. 471) 161 at 173; Vulcan Gas Ltd. vs. G. F. Industries (2001) 7 NWLR (Pt.--) 719. The failure to resolve the issue led to a miscarriage of justice, argued learned Counsel, citing, Egharevba vs. Osage (2009) 18 NWLR (Pt. 1173) 299; F.M.H. vs. C.S.A. Ltd. (2009) 9 NWLR (Pt. 1145) 193 and Kolawole vs. Folusha (2009) 8 NWLR (Pt. 1143) 338.
Learned Counsel also drew the Court's attention to the oral and documentary evidence adduced at the trial and series of alterations or interlineations in the documentary exhibits. Counsel submitted that the appellant could not have appended his signature to Exhibit "A" while he was in London. Relying on Ekwunife vs. Wayne W/A Ltd. (1989) 5 NWLR (Pt. 722) -page not cited -learned Counsel urged this Court to hold that the agreement was vitiated by illegality.
On the whole, learned Counsel urged that the appeal should be allowed.
RESPONDENT: ISSUES 1 AND 2:
The learned SAN contended that the facts in Kida vs. Ogunmola (supra) were not the same as those under consideration. Authorities cited by Counsel should be tailored to the facts under consideration, citing CBN vs. Adedeji (2004) 13 NWLR (Pt. 890) 226 at 242; Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt. 109) 250. The learned silk referred to paragraphs 3, 5(r) and 11(a)-(e) of the affidavit in support of the ex-parte application seeking leave to place the writ under the Undefended List Procedure and for substituted service of the processes together with the affidavit deposed to by Alhaji Bashir Garba Mohammed in support of the motion to set aside the ruling. Counsel's contention is that the learned Chief Judge rightly distinguished the facts in Kida vs. Ogunmola (supra) as the appellant had a valid place of abode in Nigeria where he could be served processes by substituted means. Besides, the appellant did not deny knowing Musa Ishaya on whom the processes had been served. Citing IBWA vs. Sasegbon (2007) 16 NWLR (Pt. 1059) 195 at 218 and 219, the learned SAN contended that a Certificate of service and affidavit by a bailiff are prima facie evidence of the processes being served on the appellant. The respondent was not under a duty to call rebuttal evidence, citing NEKA B.B.B. MIG Co. Ltd. vs. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521 at 550-551 and Alamieyeseigha vs. F.R.N. (2006) 16 NWLR (Pt. 1004) 1 at 104. The responsibility of proving there was no service of the processes, argued the learned silk, rests with the appellant: Egbagbe vs. Ishaku (2007) 1 JNSC (Pt. 29) 785 at 806; Blue Whales & Co. vs. Monguno (unreported: CA/A/227/2009 of Thursday, 13th May, 2010.
The learned SAN further referred to the fact that in the lower Court, PW1 made no reference to Exhibit "AA" the purported tenancy showing that the appellant was no longer resident at the given address. Besides, Alhaji Umaru Aliyu who made far reaching allegations of forgery against Senator Kura Mohammed suddenly disappeared and could not be cross-examined: Folbod Investment & Ors. vs. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt. 478) 334 at 356. Learned silk urged that issues 1 and 2 should be resolved against the appellant.
ISSUES 3 AND 4:
The learned Silk referred to the oral and documentary exhibits, coupled with the findings of the learned Chief Judge to submit that fraud and illegality were not proved, citing Section 135(1) of the Evidence Act, 2011 and Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112) 1 at 92 and Universal Trust Bank Ltd. vs. Fidelia Ozoemena (2007) 3 NWLR (Pt. 1022) 448 at 487 and Ushae vs. C.O.P. (2005) 11 NWLR (Pt. 937) 499 at 531. The learned silk's contention is that the appellant failed to show in what manner the contract between the parties was illegal, citing Section 10(a)(i) and (ii) of the Independent Corrupt Practices and Related Offences Act, 2000 and West Const. Co. Ltd. vs. Batalha (2006) 3 JNSC (Pt. 2) 504 at 523 and Onamade vs. ACB Ltd. (1997) 1 NWLR (Pt. 480) 123 at 137.
On whether the ruling wa