Paniel Audu v. Ephron Dokta & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

This appeal is against the decision of the High Court of Gombe State sitting in its appellate jurisdiction in suit No. GM/19A/2022: Ephron Dokta & Ors v. Paniel Audu. The provenance of the action is the land dispute between the parties which culminated in the appellant herein instituting an action against the respondents herein at the Upper Area Court, Kaltungo (hereinafter called the trial court).

The respondents also counterclaimed against the appellant. Testimonial and documentary evidence was adduced before the trial court which entered judgment for the appellant herein.

The respondents herein were dissatisfied with the decision of the trial court, and they appealed against the same to the High Court of Gombe State (hereinafter called the lower court).

After the hearing, the lower court allowed the appeal, set aside the decision of the trial court wherein judgment had been entered for the appellant and in its stead, it entered judgment for the respondents on their counter-claim.

The appellant, piqued by the decision of the lower court, obtained the leave of the lower court to appeal against the said decision. Consequent upon the grant of leave the appellant filed his notice of appeal on 7th November 2022.

The scarified judgment of the lower court which was delivered on 4th October, 2022 is at pages 167 – 187 of the records of appeal.

The proceedings of the lower court wherein the appellant was granted leave to appeal to this court on 7th November, 2022 is at page 196 of the records of appeal, while the notice of appeal is at pages 197 – 199 of the records of appeal.

Upon the compilation and transmission of the records of appeal, the parties filed and exchanged briefs of argument. The briefs and processes on which the appeal was argued are:

1. Appellants brief of argument filed on 28th June, 2024 but deemed as properly filed on 1st July, 2024.
2. Respondents joint brief of argument filed on 26th July, 2024.
3. Appellants reply brief filed on 12th August, 2024.
4. Respondents notice of preliminary objection filed on 24th September, 2024.

At the hearing of the appeal, the learned counsel for the parties urged the court to uphold their respective submissions in the determination of the appeal.

Our odyssey in the resolution of this appeal will commence with the preliminary objection which the respondents argued in their brief of argument and the appellant proffered his replication thereto in the appellants reply brief.

The preliminary objection

The preliminary objection is predicated on the following grounds:

1. The notice of appeal filed by the appellant is not in terms of his proposed notice of appeal for which leave was granted him to appeal.
2. The judgment sought to be appealed against by the appellant as per his proposed notice of appeal is in respect of suit No. GM/19M/2022 purportedly delivered on the 11th day of October, 2022 while the judgment appealed against by the appellant as per his notice of appeal is in respect of suit No. GM/19A/2022 delivered on the 4th day of October, 2022.
3. The appellants proposed notice of appeal contains only two (2) grounds of appeal while his notice of appeal contains an additionally smuggled third ground of appeal.
4. Ground one of the appellants proposed notice of appeal has only two (2) particulars of error while the same ground one in the notice of appeal has an additionally smuggled 3rd particulars of error.
5. The appellants notice of appeal did not specify clearly the part of the lower courts judgment which he was complaining of.
6. The record of appeal compiled and transmitted to this court by the appellant, as per its cover page, is in respect of a non-existent judgment of the court below in suit No. GM/19M/2022 purportedly delivered on the 11th day of October, 2022, while the judgment of the said court below appealed against by the appellant, as per his notice of appeal, is that which was delivered on the 4th day of October, 2022.

The respondents distilled the following issue as arising for determination in the preliminary objection: