Alfred Onyemaizu V. His Worship J.A. Ojiako & Anor (2000)

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SULE AREMU OLAGUNJU, J.C.A.

 The Appellant who was convicted of the offence of stealing by the 1st Respondent in his capacity as the Chief Magistrate sitting at Ekwulobia in Aguata Magisterial District of Anambra State of Nigeria, did not appeal against the conviction. But he later applied to the Anambra State High Court for leave to apply for an order of certiorari to quash the judgment of the learned Chief Magistrate who together with the Registrar of his Court were made the Respondents to the application.

The application for leave was granted sequel to which the Appellant filed on 28/3/94, a motion on notice under what is described as ‘Order 37 (i) (a) Anambra State High Court Rules 1988’ praying the Court for an order of certiorari to quash the judgment of the 1st Respondent which after a series of adjournments was set down for hearing on 25/4/95. At the hearing, the competence of the application was challenged on a preliminary objection by learned Senior Advocate for the Respondents, G. E. Ezeuko, Esq., on the ground that, it was not supported by an affidavit by the Applicant declaring the names and addresses of the persons who had been served with the notice of the Applicant’s motion as stipulated by sub-rule 5(4) of Order 37 of the Anambra State High Court Rules, 1988, which was not satisfied by the Affidavits of Service of the process filed by the court bailiff.

The objection which was based on the precedent of the decision of this Court in The State v. Commissioner Of Police. In Re Appolos Udo. (1987) 4 NWLR, (Part 63) 120, 126, was upheld by the learned trial judge who struck out the Appellant’s motion as being incompetent. This appeal is challenging that decision.

In his Notice or Appeal, the Appellant filed 2 grounds of appeal. The particulars of the two grounds which are on law and misdirection and rather prolix are in the main on the application of the decision in In re Appolos Udo, supra, to the facts of the case on appeal. In his Brief of Argument, the Appellant formulated 3 issues as follows:

“1. Whether the decision of the Court or Appeal in Re Appolo, Udo (1987) 4 NWLR (Part 63) page 120, should have a binding effect on lower Courts.
2. If the answer is in the affirmative, whether on the facts and circumstances of this instant suit (Alfred Onyemaizu’s), the lower Court will nevertheless be bound by the precept of stare decisis.
3. Whether Re Appolos Udo was made per incuriam, if so, whether the Court of Appeal should feel bound by it.”

The Respondents in their Brief of Argument formulated one issue which reads:
“Whether the learned trial Judge was right in striking out the Appellant’s application for an order of certiorari to issue against the judgment of Chief Magistrate J.A. Ojiakor Esq., for non-compliance with Order 37 Rule 5(2) and (4) of the Anambra State High Court Rules 1988.”

As a preliminary observation, let me note that this appeal has been dogged by slipshod mistakes by beginning with the filing on 28/3/94 of the motion for an order of certiorari. I looked in vain for ‘Order 37(i)(a) Anambra State High Court Rules 1988’ under which the application was purportedly brought nor can I find in the record the leave said in paragraph 21 of the affidavit supporting the motion to have been granted to the appellant by the Court below for ‘the Writ of certiorari to issue against the judgment’. Even with a smattering knowledge of the law ‘Order’ of certiorari is what is provided for by Order 37, Rule 5, etc., of Anambra State High Court Rules,  1988, to which a Writ of certiorari is alien.

More fundamental, however, are the scope and substance or the grounds of appeal filed. Given the definition of ‘ground of appeal’ as ‘a concise statement or the head of complaint of an appellant in the appeal’ for which see Idika v. Erisi, (1988) 2 NWLR, (Part 78) 563. 578. I do not think that the two grounds of appeal filed by the Appellant go to the heart of the dispute between the parties which ought to be addressed to the point on which objection was taken to the competence of the application for an order or certiorari that led to the striking out of the application in support of which the principle In Re Appolos Udo, supra, was just called in aid.

But that is just only part of the remissness in presenting the appeal by learned Counsel for the Appellant who formulated 3 issues from 2 grounds of appeal an error in brief writing that has been deprecated time without number. For the umpteenth time, let it be reiterated that it is wrong and unacceptable to formulate more issues than the grounds of appeal filed as proliferation of issues confounds rather than clarifies matters in controversy. See, in this regard, Oyekan v. Akinrinwa (1996) 7 SCNJ 165, 172: (1996) 7 NWLR (Pt. 459) 128 and Onyioha v. Ayashe 1996) 2 NWLR (Part.432), 567.

To compound the problem, the third issue formulated by the Appellant on whether the decision of this Court in Re Appolos Udo, supra, was made per incuriam did not arise from the matters canvassed at the trial. There, in arguing the preliminary objection the efforts of learned Counsel for the Appellant were taken up with distinguishing the facts of the present case from the earlier case with a view to showing that the facts of the two cases are not similar and, therefore, the principle enunciated in the earlier case cannot be invoked as a precedent for the case in hand. That is not the same as saying that the decision in Re Appolos Udo, supra, was tendered per incuriam, i.e. through inadvertence, for the purport of which See Nwoko v. Governor of Rivers State (1989) 2 NWLR (Part 104) 470. Besides, as I will show presently querying whether the decision of a higher Court was rendered per incuriam is a booby-trap which no trial Judge would dare to walk into.

In any case, issue 3 raised a fresh issue which was not canvassed at the Court below. This, the Appellant cannot do without the leave of this Court. See Din v. Attorney-General of the Federation (1988) 4 NWLR (Part 87) 147, 183; Adamu v. Ikharo (1988) 4 NWLR (Part 89) 474, 491; Attorney-General of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Part 92) 1, 48-49; and Odekilekun v. Hassan (1997) 10-12 SCNJ, 114, 129. See also (1997) 12 NWLR (Pt.531) 56. In the result, I find issue 3 in the Appellant’s Brief of Argument to be incompetent and I strike it out.

Having sieved the wheat from the chaff, I will examine the first issue in the Appellant’s Brief of Argument separately; it will be followed by taking issue 2 together with the lone issue in the Respondent’s Brief of Argument. In his argument of the first issue, learned Counsel for the Appellant hopped over across to the question of waiver, an independent defence that must be raised and canvassed for which see Ariori v. Elemo (1983) 1 SCNJ 1; (1983) SCNLR 1 and Odu’a Investment Company Ltd. v. Talabi (1997) 7 SCNJ 600, 650-654, (1983) 10 NWLR (Pt.523) 1. I agree with learned Counsel for the Respondents that, it is a fresh issue not canvassed at the Court below. Therefore, I will discountenance that question adopting the cases I cited above and the decision in Edokpolo and Company Ltd. v. Seni-Edo Wire Industry Ltd. (1989) 4 NWLR (Part 116) 473, 491, to which learned Counsel for the Respondents referred.

At the centre of the argument of learned Counsel for the Appellant is the doctrine of stare decisis whereby, the decision of the superior Courts are binding the Courts below them and operated on two correlative concepts of ‘ratio decidendi’ and ‘obiter dictum’ in the former of which inheres the biding force where facts of the case proffered as precedent are similar to the facts of the case to which the doctrine is to be applied. For the classic exposition of the doctrine in this country, see Clement v. Iwuanyanwu (1989) 20 NSCC (Part II) 234, 240-241; (1989) 3 NWLR (Pt. 107) 39; Adegoke Motors Ltd. v. Dr. Adesanya (1989) 20 NSCC (Part II) 327, see also 3 NWLR (Pt. 109) 250, 331; Nwako v. Governor of Rivers State, supra, at page 481; Ebiteh v. Obiki (1992) 5 NWLR (Part 243) 599; Rossek v. African Continental Bank Ltd. (1993) 10 SCNJ 20; (1993) 8 NWLR (Pt. 312) 382 and Adesokan v. Adetunji (1994) 6 SCNJ (Part 1) 123, 136-138 and 155-156, (1994) 5 NWLR (Pt. 346) 540.