Mr. Raymond Ewere Nwabudike & Anor. V. Dr. D. N. Omokaro (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment)

The brief background facts of this matter are that, the Respondent herein was the plaintiff at the trial Court. He instituted an action against the 2nd Appellant and the 1st Appellant’s deceased mother Princess G. Akenzua as defendants for, declaration of title to a portion of land, special and general damages for trespass. Pleadings were exchanged between the parties and the action went to trial at the end of which judgment was delivered in favour of the Respondent on 14th June, 2006. See pages 80 to 96 of the record of appeal for the said judgment. Subsequently, on 26th October, 2006, the Appellants’ counsel filed an application before the trial Court and prayed for the following orders viz:

(1) An order striking out the name of the 1st defendant, Princess G. Akenzua from the suit, she having died on 12th June, 2006 two days before the judgment of the Court was delivered against her, the judgment being a nullity.

(2) An order to substitute Mr. R.E. Nwabudike for the 1st defendant, that is, Princess G. Akenzua who died on 12th June, 2006.

(3) An order setting aside the judgment of the Court against the 1st defendant, Princess G. Akenzua, in suit no. B/778/97 that is, Dr. D.N. Omokaro v. Princess G. Akenzua & Anor. which judgment was delivered on 14th June, 2006 without jurisdiction, the judgment being a nullity, the 1st defendant, Princess G. Akenzua having died on 12th June, 2006.

The trial Court granted prayer one of the said application and substituted the 1st Appellant for the 1st defendant, late Princess G. Akenzua but refused the other two prayers. The ruling in respect of the said application is contained in pages 97 to 103 of the record of appeal. The Appellant is apparently dissatisfied with both the said judgment and ruling and filed an appeal against same to this Court. The Appellants filed two separate notices and grounds of appeal. The first is dated and filed on 7th July, 2006; while the second is dated and filed on 18th December, 2006 as contained in pages 104 to 105 and 106 to 107 of the record of appeal respectively.

The learned counsel for the Appellants in the brief of argument filed for the Appellants formulated a sole issue for the determination of this appeal. This sole issue reads thus:

Whether the learned trial Judge was right when he failed to set aside part of his judgment delivered on the 14th day of June, 2006 as it affects the 1st defendant who died before the said judgment was delivered?

In the Respondent’s brief of argument, a single issue was equally formulated for determination, which states as follows:

Whether having regard to the facts and circumstances of this case, the death of the 1st defendant after the close of the case and just before judgment, occasioned a miscarriage of justice to the Appellants herein as to render the judgment a nullity?

On 1st February, 2010 when this appeal was heard by this Court, the learned counsel for the Appellants, Mr. G.E. Ezomo identified, adopted and relied on the Appellants’ brief of argument which is dated 23rd January, 2009 and was deemed properly filed and served on 13 May, 2009 and urged upon this Court to allow this appeal. The learned counsel for the Respondent, Mr. J.O. Odion on the other part identified, adopted and relied on the Respondent’s brief of argument dated 1st June, 2009 and filed 4th June, 2009. And he urged this Court to dismiss this appeal.

Before proceeding further in this judgment, I consider it apposite to put the records straight concerning the two notices of appeal filed by the Appellants as stated earlier on. This is imperative in order to ascertain the status and relevance of each of the said two notices of appeal. For, an appellate court can only decide an appeal brought before it on issues raised from the grounds of appeal as contained in the notice and grounds of appeal. Hence, by the rules of court and practice, issue(s) is/are circumscribed or limited by the grounds of appeal. It is the law that, issue(s) formulated for determination which is/are not encompassed in the grounds of appeal is are incompetent, ill-fated and bound to be struck out or discountenanced. Therefore, an appellant is bound by his grounds of appeal and any matter argued which is not founded on a ground of appeal goes to no issue. See the cases of:

(1) Okeke & Ors. v. Oruh (1999) 4 S.C.N.J. p. 192;

(2) Dantata v. Mohammed (2000) 5 S.C. p. 1; and