G.B. Animashaun & Anor V. G. E. N. Onyekwulujuje (2003)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

On the 2nd April, 2003, when this appeal was called up for hearing, the learned Senior Counsel Mr. G.R.I. Egonu on behalf of the Respondent by a notice of preliminary objection dated 30th day of December, 2002, and filed on the 2nd January, 2003, objected to the hearing of the said appeal for the reasons of the incompetence of the grounds of appeal upon which same is predicated. The objection is pursuant to Order 3 Rule 15 (1) of the Court of Appeal rules, 2002. The nature of the objections are reproduced and read as follows:
“TAKE NOTICE that the defendant/respondent herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection notice where of is hereby given to you, viz.”

Grounds 1, 2, 3 and 4 of the plaintiffs’/appellants’ grounds of appeal are incompetent and ought to be struck out: the plaintiffs/appellants failed to distil or formulate any issues from their grounds of appeal and purported to argue their appeal under their grounds of appeal and in particular they merely repeated ground 5 of their grounds of appeal as the argument under the said ground.

AND TAKE NOTICE that the grounds of the said objection are as follows:
(1) Grounds 1, 2, 3 and 4 are not grounds of misdirection or law; they relate merely to findings of fact by the learned trial judge.
(2) The plaintiffs/appellants were bound to set out the issues arising from their appeal and to argue their appeal based on those issues but they failed to do so.
(3) The plaintiffs/appellants merely reproduced ground 5 of their grounds of appeal in their brief.”

In his oral arguments before us, the learned silk in a bid to buttress and substantiate his objection made reference to Order 3 rule 2 (1)(2)(3) and (4) of the Court of Appeal Rules 1981 as amended, the said Rule which is in pari materia to the present Court of Appeal Rules, 2002.

The learned senior counsel further made reference to the original notice of appeal by the appellants at page 87 lines 33 to page 90 line 18 as well as page 136 of the record where the original grounds were withdrawn while the other reliefs were granted. With further reference to the additional grounds of Appeal, that grounds 1, 2, 3 and 4 are not misdirection of facts or error in law. The senior counsel submitted that the said grounds offend Order 3 rule 2 (1)(2)(3) and ( 4) of the Court of Appeal Rules 1981 as amended.

That it is the Court’s duty to examine each and every one of the grounds complained against.
On the question of what amounts to misdirection of error in law, reference was made to the authority in the case of Wadih Chidiak v. A.K.I Laguda (1964) 1 All NLR 160 at 162. That the particulars and the nature of the error ought to be clearly stated. In the matter at hand, that the appellants’ grounds do not contain the nature of the error complained against. The senior counsel to support his argument singled out ground 4 of the additional grounds of appeal where it contains a combination of a number of complaints. That the error and misdirection ought to be stated.

The authority Ezebilo Abisi & ors v. Vincent Ekwealor & Anor (1993) 6 NWLR (Pt.302) 643 at 657 Letter “G” to 661 Letter “H” is under reference. Further reference was made to Order 6 rule 3(1) of the Court of Appeal Rules, also cited supra. With reference to the appellants’ brief of arguments same, the senior counsel submitted, is incompetent, for the reason that a purported issue for determination which does not arise from a ground of appeal is in itself incompetent. That an appellant must argue his appeal under the issues distilled or formulated from the grounds of appeal. That after formulation they are precluded from going back to argue under grounds of appeal and which the appellants purport to do in the matter at hand.

That the grounds are not argued on any issue whatsoever. Further reference was also made to the case of Alhaji Yakubu Alabi Aro v. Saadu Adisa Aro & Anor (2000) 3 NWLR (Pt.649) 443 at 452 Letters “C” to “D”. Also the case of Alhaji Dahiru Idi & Anor v. Mallam Adamu Yau (2001) 10 NWLR (Pt.722) 640 at 647 to 648 Letters “H” to “B”. Further related cases are Mrs. Patience Omagbemi v. Guinnes Nigeria Ltd. (1995) 2 NWLR (Pt.377) 258 at 266 Letters “F” to “G”, and Central Bank of Nigeria & Anor v. Aite Okojie & Ors (2002) 8 NWLR (Pt.768) 48 at 60 to 61 Letters “E” to “F”.

Finally and to conclude his arguments the senior counsel re-iterated emphatically the incompetent nature of the whole appeal and therefore urged this court to strike it out.

The appellants had no counsel but one T. A. Babatunde spoke as their representative and indicated nothing to say in response to the arguments enunciated by the learned senior counsel for the respondent.

At page 136 of the record the motion dated 10th January 1986 praying an order for leave to add further grounds of appeal and other ancillary prayers was withdrawn and therefore struck out. By a further related motion dated 4th July 1986, one of the prayers granted was for leave to argue additional grounds of appeal and same were at pages 131-135 per grounds of appeal Nos. 1, 2, 3 and 4 accordingly.

The bonds of contention by the learned senior counsel for the respondent giving rise to the objection are centred on two main issues. While the first is in respect of the grounds of appeal which he argued are incompetent, the second however, relates to the failure of the appellants in setting out issues arising from their grounds forming the basis of their arguments.

On the 1st issue raised and for the determination of the competency or not of a ground of appeal, recourse ought to be had to a number of pronouncements per decided authorities. For instance in the case of Hambe v. Hueze (2001) 4 NWLR (Pt. 703) p.372 the issue for consideration was whether or not in law a ground of appeal alleging a misdirection in law and on facts is incongruous, defective and not worthy of consideration. At pp. 385 – 386 paragraphs ‘G’ – ‘A’ (Ogundare JSC) had the under stated to say on purpose of grounds of appeal and the need to avoid technicality in consideration thereof:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal, and; that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side, of the precise nature of the complaint of the appellants and consequently of the issues that are likely to arise on the appeal.