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Engineer Goodnews Agbi V Chief Audu Ogbe (2004) LLJR-SC

Engineer Goodnews Agbi V Chief Audu Ogbe (2004)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, JSC

The appeal and cross-appeals in this matter arose from the judgment and orders of the Court below wherein that Court (Coram, Abdullahi, PCA, Oguntade, Muhammad, Bulkachuwa, Oduyemi JJCA upheld the appeal against the ruling of Yussuf J, delivered on the 24th of March 2003 and set it aside. The Court went further to order that the case be heard de novo by another judge of the High Court of the Federal Capital Territory (FCT).

For a proper appraisal of the issues raised in the said appeals, it is in my view necessary that the facts leading thereto should be reviewed briefly. This matter apparently commenced when the appellants by an originating summons dated 3rd February 2003, was taken out at the Gwagwalada Division of the High Court of the FCT against 1st – 4th respondents for the following reliefs: –

“(1) A declaration that by virtue of the combined effect of sections 112, 114, 115 and 124 of the Evidence Act, Cap 112 laws of the Federation 1990 the Record of proceeding of the Bwari Upper Area Court of 18/8/1995 in Case No. CR81-95 is presumed genuine and sufficient in law for the 1st, 2nd and 3rd respondents to rely on same to act against the ex-convict.

A declaration that the ex-convict, Chief Onanefe Ibori, by virtue of his conviction and sentence in Case No. CR81-95 is not qualified to carry the 1st, 2nd and 3rd respondents’ flag as its Gubernatorial candidate in the 2003 elections within the meaning of section 182(1) of the 1999 Constitution.

An order compelling the 1st, 2nd and 3rd respondents to disqualify and withdraw its flag and certificate by affirmation given in the case, to the ex-convict, Chief James Onanefe Ibori, to contest the 2003 Gubernatorial elections in Delta State on the platform of the Peoples Democratic Party.

An injunction restraining the 1st, 2nd and 3rd Respondents, their agents, servants and privies from presenting the name of the ex-convict in this case, Chief James Onanefe Ibori to the Independent Electoral Commission as the candidate of the Peoples Democratic Party (POP) for the 2003 Gubernatorial Elections

An injunction restraining the 4th defendant from recognising and accepting the candidature of Chief James Onanefe Ibori, the candidate of the 1st, 2nd and 3rd respondents for the 2003 Gubernatorial Elections in Delta State.”

The 1st, 2nd and 3rd respondents by their counsel filed a memorandum of appearance and also filed a counter affidavit in response to the summons filed on them. The Court then set the motion for hearing on the 10th February 2003. On that date, the respondents were not in Court and they did not also defend the summons against them. The learned trial judge then adjourned the matter for ruling later on the same date. But that ruling could not be delivered as Mr. Alex Izinyon SAN, brought an application on behalf of the 5th respondent, wherein it was prayed that the 5th respondent be joined as defendant in the suit pending before the trial Court. By the said application, the 5th defendant also raised a preliminary objection to the originating summons upon the grounds (a) that the applicants had no locus standi to institute the action and (b) that the Court lacked jurisdiction to hear the suit.

The trial Court in a considered ruling granted the prayer for the joinder of the 5th respondent as one of the defendants to the action before it. The trial Court thereafter proceeded with the hearing of the originating summons with which the action was commenced and the preliminary objection raised against it as aforesaid. It was however resolved that the arguments of counsel in respect of the preliminary objection be taken first. After due consideration of the submissions made thereon by learned counsel for the parties, the learned trial judge struck out the preliminary objection as it lacked any merit.

After this ruling, learned Senior Counsel, Mr. Alex Izinyon, apparently appeared for the 5th respondent and led other counsel who had been appearing for him. Following his appearance, he then made the submission to the Court, which, inter alia, read thus: –

“We shall be addressing the Court on the affidavit before the Court. The issue is narrow. By virtue of Order 35(1) of the Rules of this Court we can identity the issues and address the court upon them. The issue in controversy is that the 5th defendant is an ex-convict. The law is that no oral evidence can be given of a judgment or proceeding of Court if reduced to writing except if…”

In his response to that submission, Mr. Odin, learned counsel for the plaintiffs said inter alia that “As a legal practitioner of several years standing, I cannot be a party to impersonation by anybody. However I suggest that oral evidence be heard to show if the governor was convicted.” The Court then adjourned further hearing to the 20th of March 2003. On that date the trial Court ordered as follows: –

“I therefore deem it necessary to direct parties to prepare the issues they think germane for the determination of this case. This is pursuant to Order 35 Rule 2”

Following that order, the trial Court proceeded to hear submissions of learned counsel who appeared for the parties. In the course of which Exh. A the proceedings of the Upper Area Court Bwari that convicted one James Onanefe Ibori was admitted in evidence. On the 24th day of March 2003, the Court delivered its ruling, and I consider it desirable to set out part of its reasoning for dismissing the claims of the plaintiffs. It reads: –

“In the record before me the substance which involves the determination of guilty by the Court was neglected and I am convinced that this Court has power to say so. Now that there is no conviction in exhibit A, which is CR/81/95 what is the effect of it on the claims of the plaintiff. The effect is to sweep the claims off the ground.

All the claims which I referred to at the beginning of this ruling are to the effect that the 5th defendant is an ex-convict by virtue of CR/81/95 decided by Upper Area Court Bwari on 28/9/95 and that under Section 182(1) E of the 1999 Constitution, he is disqualified from contesting 2003 election to the office of a Governor. That section provides 182(1) No person shall be qualified to the office of Governor of a State if – (E) within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or has been found guilty of the contravention of the code of conduct; on the argument of the learned SAN that 225 of the evidence act was not complied with. I am of the view that argument cannot be pursued seriously. The Certified True Copy of the record of proceedings exhibited in this case substantially complied with the provision. I also agree with the Plaintiff’s counsel that section 226 of the Evidence Act does not apply. I am of the view that the issues decided renders the trial of the claims of the plaintiffs unnecessary. I accordingly dismiss them.”

As the appellants were dissatisfied with the ruling and orders of the trial Court, they appealed to the Court of Appeal, Abuja Division against the said ruling and orders of the trial Court. Pursuant thereto, the Court of Appeal granted leave for the accelerated hearing of the Court upon the bundle of documents prepared by them. The Court in granting their prayers apparently bore in mind their (the appellants) plea that the appeal be heard before 19/4/03 when elections to the office of Governor would take place. Indeed, the Court below also set the hearing of the appeal for the 9th of April 2003. Though the appeal was not heard as scheduled, it was further adjourned from that date to a day mutually convenient to the Court and learned counsel appearing for the parties. Eventually, the appeal before that Court was heard and judgment was delivered on the 16th day of April 2003. By the judgment, the Court below allowed the plaintiff’s appeal and set aside the ruling of Yusuf J. It is I think useful in the circumstances to quote verbatim, in part, reasons to the conclusion reached by the Court below, per the judgment of Oguntade JCA and which reads: –

See also  Alhaji Surakatu I. Amida & Ors. V. Taiye Oshoboja (1984) LLJR-SC

“The accused in Exhibit A pleaded guilty and the Court thereafter proceeded to impose a sentence. The only conclusion to be arrived at on that hypothesis is that the Upper Area Court did not observe the essential pre-requisites laid down under Section 157 (1) of the CPC (i.e. Criminal Procedure Code) before proceeding to convict the accused. It is in my view clearly unarguable to say that there was no conviction. The procedure leading to the conviction may be deficient and liable to be set aside by an appellate Court upon a proper Appeal against the judgment of the Upper Area Court; but it is nonetheless still a conviction. I am therefore unable to agree with the conclusion of the lower Court that no conviction was recorded. That approach smacks in my view of undue legalism and irrelevant hair-splitting in a case where the purpose of tendering Exhibit A was merely to show that the accused therein was convicted. It was not tendered to show that the Upper Area Court erred in its decision.”,

It was further ordered that the case be heard novo by another judge of the High Court of the Federal Capital Territory, Abuja.

As the plaintiffs/appellants and the 5th defendant were dissatisfied with the judgment and orders made by the Court below, both parties have further appealed to this Court as appellants and cross-appellants respectively. Pursuant thereto, the 5th defendant filed eventually an Amended Notice of Appeal dated the 1st day of August 2003 based upon the following grounds:-

“(1) The Court of Appeal erred in law in failing to focus its attention on the sole issue which was actually tried by the High Court with the agreement of the parties.

Particulars of Error

(a) At the trial in the High Court, that court, with the agreement of the parties decided to try (as a preliminary point) the sole issue of whether or not the proceedings before the Upper Area Court, Bwari, dated 28.9.95 (Exhibit ‘A’) is proof of the conviction of any person.

(b) It was further decided by the said High Court with the agreement of the parties that if, but only if the answer to the aforementioned sole issue is in the affirmative, then the High Court will proceed to try the issue whether the person convicted in Exhibit ‘A’ was indeed the 5th defendant (now appellant) herein.

(c) There was no appeal by the plaintiffs or any of the other parties interested in this suit from the decision of the High Court referred to in paragraphs (a) and (b) hereof; nor was there any complaint whatsoever by any of the parties against such decisions in the briefs before the Court of Appeal

(d) In the premises the Court of Appeal ought not (as they in fact did) to have considered and decided the issue of the admissibility in evidence of Exhibit ‘A’ in so far as that document is relevant for the purpose of deciding –

(i) whether or not the 5th defendant (now appellant) was the person in fact convicted in the proceeding before the Upper Area Court, Bwari on 28.9.95;

Or

(ii) to comment upon and to criticize (as they in fact did) the course pursued by the High Court and the parties in agreeing to try the sole issue as a preliminary issue.

(2) Further and in the alternative, the Court below erred in law in failing to observe that its comments upon and criticism of the course pursued by the High Court (with the agreement of the parties) were unjustified and ought not to have been made.

Particulars of Error

(a) Paragraphs (a) and (b) of Ground (i) are hereby repeated.

(b) In the premises the aforementioned comments and criticism are unjustified on the ground that they are irrelevant and contradictory to the trial of the sole issue before the High Court.

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The Court of Appeal erred in law when it held as follows:

It is in my view clearly unarguable to say that there was no conviction. The procedure leading to the conviction may be deficient and liable to be set aside by an appellate court upon a proper appeal against the judgment of the Upper Area Court; but it is nonetheless still a conviction. I am therefore unable to agree with the conclusion of the lower court that no conviction was recorded. That approach smacks in my view of undue legalism and irrelevant hair-splitting in a case where the purpose of tendering exhibit ‘A’ was merely to show that the accused therein was convicted. It was not tendered to show that the Upper Area Court erred in its decision.

Particulars of Error

(a) Exhibit ‘A’ was tendered (as the Court of Appeal rightly observed) “merely to show that the accused therein was convicted”.

(b) The said Exhibit ‘A’ would be relevant to the proof of such conviction if, but only if it was admissible in evidence for the purpose of the trial of the sole issue which was tried by the High Court.

(c) The said Exhibit ‘A’ was inadmissible in evidence in view of the requirements of sections 111(1) and 225 (1) of the Evidence Act.

(d) Accordingly by reason of well established rules of law including the provision contained in Section 53 of the Evidence Act, the 5th defendant is entitled to show that the judgment or order or purported judgment or order of conviction in the said Exhibit ‘A’ was inadmissible in evidence and if admissible was delivered by a court without jurisdiction.

(e) In the premises the purported judgment or order of conviction in Exhibit ‘A’ was a nullity and the said purported judgment or order has no probative force in law. In the alternative the said exhibit was inadmissible in evidence and proved nothing.

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(4) The Court of Appeal erred in law in holding as follows:

Parties and the court, it would seem did not bear in mind the provisions of Section 225 (2). If they did, they would have known that since the 5th respondent had by his counter-claim and counter-affidavit denied that he was the person convicted vide Exhibit ‘A’, the said Exhibit ‘A’ ought not to have been treated as evidence at that stage.

Particulars of Error

(a) The passage cited from the judgment of the Court of Appeal overlooks the fact that the scope of the trial in the court below was limited to trial of the sole issue

(b) Exhibit ‘A’ was admissible (if any at all) for the purpose of the trial of the sole issue.

(c) Even if Exhibit ‘A’ was admissible in evidence, the provision of Section 225 of the Evidence Act may no doubt render it inadmissible for the purpose of proving that the 5th defendant (now appellant) was indeed the person convicted thereunder, but they are clearly applicable for the purpose of deciding whether or not Exhibit ‘A’ meets the statutory requirements for proving conviction in civil proceedings against the person named therein.

(d) The issue whether the 5th defendant (now appellant) is indeed the person named in Exhibit ‘A’ is not taken as established during the trial of the sole issue.

The Court of Appeal erred in law in failing to decide that the Upper Area Court, Bwari has no jurisdiction to convict any person under Section 57 (1) of the Criminal Procedure Code and also in holding as follows:

See also  Alhaji Hashimu Garba Matari & Ors V. Ahmadu Dangaladima & Anor (1993) LLJR-SC

In the instant case, it was not the contention of the 5th respondent before the lower court and this court that the Upper Area Court Bwari had no jurisdiction in 1995 to try the accused brought before it in exhibit (sic) of the offences alleged. The substance of the contention of the 5th respondent was/is that the Upper Area Court, Bwari in the course of its undoubted jurisdiction made some technical errors in that it did not comply with Section 57 (1) of the Criminal Procedure Code. When a court has jurisdiction to entertain a matter, it by implication has jurisdiction to make mistakes or errors of law in the exercise of such jurisdiction. The remedy available to any party to the suit who is damnified or adversely affected by the error is to bring an appeal that the errors be corrected.

Particulars of Error

(a) At page 19 of the brief of the 5th defendant (now appellant) in the court below the said defendant in the last paragraph of that page urged the Court of Appeal –

to hold that Exhibit ‘A’ must be treated as proceedings held without jurisdiction and must be held to be void and without any probative value:

(b) Furthermore at pp. 15-16 of the said brief, it was further argued on behalf of the defendant/appellant that by reason of the provision of Section 157 (3) of the Criminal procedure Code the Upper Area Court is expressly prohibited from exercising any powers to convict any accused person under Section 157 (1) unless an Order under Section 157 (2) has been made in respect of that grade or class of court.

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(c) No Order was in force at all material times in respect of any grade or class of area court under Section 157 (2).

(d) In the premises the law is very clear that the Upper Area Court has no jurisdiction to convict an accused person under Section 157 (1) of the Criminal Procedure Code and the Court below ought to have so held’ accordingly Exhibit ‘A’ has no probative force.”

Similarly, the plaintiffs as cross-appellants with the leave of this Court also filed against the judgment of the Court below 16 grounds o appeal, which, without their particulars, read thus:

“1. The learned Justices of the Courts of Appeal erred in law when they held that the issue settled by parties and court for determination after the close of pleadings was a preliminary issue.

The Court of Appeal misconceived the fact when it held that the issue settled for determination was a preliminary issue and parties have reserved other issues for determination at a later stage.

The learned Justices of the Court of Appeal erred in law when they ordered that the issue of the identity of the person convicted in Exhibit ‘A’ in this case be tried again by another Judge of the High Court of Federal Capital Territory, and thereby occasion miscarriage of Justice.

The learned Justices of the Court of Appeal erred in law in allowing the respondent to raise the issue of jurisdiction of the trial Upper Area Court in this case when necessary Procedure was not followed.

The learned Justices of the Court of Appeal erred in law in entertaining and deciding issues arising from the respondent’s cross-appeal when the respondent did not file brief of argument on the cross-appeal.

The learned Justices of the Court of Appeal erred in Law and misconstrued the purpose of tendering of Exhibit ‘A’ when they held as follows:

The purpose of tendering Exhibit ‘A’ was merely to show that the accused therein was convicted.

The learned Justices of the Court of Appeal erred in law and misconstrued the argument of the Senior counsel for the 5th respondent before the trial Court when they held as follows: –

The argument of Chief Izinyon S.A.N. substance is that the procedure shown to have been followed in Exhibit ‘A’ was a departure from section 157 of the Criminal Procedure Code and that therefore nobody could be said to have been convicted under Exhibit ‘A’.

The learned Justices of the Court of Appeal erred in Law and breached the appellant’s right to fair hearing and when they decided the issue of non compliance with Section 225 (2) of the Evidence Act against the appellant suo motu and without hearing the parties.

The learned Justices of the Court of Appeal erred in law when they held that:

Exhibit ‘A’ in the manner it was pleaded by the plaintiffs was only the evidence of conviction and thereby failed to give the correct considerations to the issues regarding Exhibit ‘A’.

The learned Justices of the Court of Appeal erred in law in holding that the Upper Area Court which decided the case in Exhibit ‘A’ did not comply with the provisions of S. 157 (i) of the Criminal Procedure Code without stating the non compliance and when there was in fact strict compliance with the Section.

The learned Justices of the Court of Appeal erred in law when they held as follows:

The appellants in their approach to this appeal laboured under the notion that once they succeed in their appeal, their success would lead to the conclusion that the 5th respondent was an ex-convict who could not be allowed to contest for the office of Governor of Delta State pursuant to Section 182 (1) (e) of the 1999 Constitution. That obviously must be a false notion given the procedure followed by the lower court to the determination of the appellants’ suit.

The Court of Appeal erred in law when it held that the procedure adopted by the lower court was an infraction of Section 225 (2) of the Evidence Act.

The Court of Appeal erred in law when it held as follows: It seems to me unnecessary answering the question whether or not a Native Court is bound by the Criminal Procedure Code.

The learned Justices of the Court of Appeal erred in law when it held that the case must be sent back to the lower court to be heard de novo before another Judge of the High Court.

The learned Justices of the Court of Appeal erred in law when they held as follows:

Parties ought to file fresh pleadings where it will be clearly made manifest the issues for adjudication by the court. This is necessary even the process filed by appellants before the lower court and captioned “FACTS IN SUPPORT OF THE APPLICATION’ should have been considered irregular by the lower court as it was not an affidavit as should be the case where a suit is commenced by originating summons.

The Court of Appeal erred in law when it held as follows:

Clearly therefore the approach of parties to this case before the lower court was to determine first whether or not Exhibit ‘A’ could be evidence of conviction. It was not directed at showing in the first instance that the 5th defendant was the person convicted. Parties would appear to have reserved that for sometime later in the proceedings if the lower court decided that Exhibit ‘A’ was good enough to be relied upon as evidence of conviction.”

Pursuant to the Rules of this Court, the 5th defendant/appellant filed his brief in support of his appeal to which the plaintiffs/respondents filed and served their respondents’ brief. Also the plaintiff as cross-appellant filed his brief in support of that appeal to which the defendant/appellant filed a reply brief. The only other party to this appeal namely, the 1st plaintiff, who had filed a cross-appeal against the judgment of the Court of Appeal also filed and served his brief pursuant to his appeal. At the hearing, learned counsel who represented each of the parties adopted and placed reliance on their respective briefs. Each of them also addressed the court in elaboration of the issue argued in their respective brief. In the determination of the merits of this appeal, the contention made for the 5th defendant/appellant will be considered first. The issues or questions set down for the determination of the appeal by the appellant are as follows: –

See also  Federal Housing Authority & Anor V. Mr. A. A. Kalejaiye (2010) LLJR-SC

“(i) What was the sole issue tried by the High Court in this case.

(ii) In the light of the answer to Question (i) –

(a) Was it open to the Court of Appeal to comment upon and to criticize the course pursued by the High Court and the parties in agreeing to try the sole issue as a preliminary issue?

and

(b) In any event were the comments and criticism of the Court of Appeal justified?

(iii) Whether Exhibit ‘A’ is admissible in evidence for the purpose of the determination of the sole issue before the High Court.

(iv) Whether the proceedings in Exhibit ‘A’ are valid and remain valid unless they are set aside on appeal (as the Court of Appeal has decided) or whether they are void for want of jurisdiction (as the Appellant herein contends).”

The plaintiff/respondent for their own part formulated the following as the proper issues for the determination of the appeal: –

“(i) Whether having regard to the proceedings before the trial court, the sole issue tried by the High Court was not the only issue settled by the parties for the trial court to consider in the determination of the suit and whether it was not opened to the Court of Appeal to come to the conclusion that the appellant in this case was an ex-convict. Grounds 1 and 2.

(ii) Whether Exhibit ‘A’ was admissible for the determination of the issue before the Court. Grounds 3 and 4.

(iii) Whether or not the jurisdiction of the Upper Area Court to try and convict the accused in Exhibit ‘A’ is a competent issue in this appeal and if so, whether the Upper Area Court which convicted ‘the accused in Exhibit ‘A’ had no jurisdiction to do so. Ground 5′.

However, I must consider first whether issues as framed for the 5th defendant/appellant by his learned counsel, Chief F.R.A. Williams, SAN were validly raised having regard to the preliminary objection raised against them in the brief filed for the plaintiffs/respondents by their learned counsel, Chief Afe Babalola, SAN. In that brief, it is contended for them that in the formulation of the questions for the determination of the appeal and the argument proffered thereon in the appellants’ brief, no attempt was made to relate any of the said questions for the determination of the appeal with any of the grounds of appeal filed against the judgment of the Court below. It is upon that ground that it is argued for the respondents that the appellants’ brief is bad for non-compliance with the law and practice which had been laid down in several decisions of this Court. On this point, reference was made to the following decisions: Exquisite Ind. Ltd. V. Owners of M.V. Bacliners (1-3)(1998) 5 NWLR (pt. 549) 335, 345; UBN Ltd. V. Odusote Bookstores Ltd (1995) 9 NWLR (pt. 42l) 558, 578; Busari V. Oseni (1992) 4 NWLR (pt. 237) 557, 580; Momodu V. Momoh (1991) 1 NWLR (pt.169) 508; Oshinupebi V. Saibu (1982) 7 S.C. 104; Macauley V. NAL Merchant Bank Ltd. (1990) 4 NWLR (pt. 144) 283, 321.

And with regard particularly to question No.1, it is the submission of learned counsel for the plaintiffs/respondents that it is merely a question and no issue was raised thereby. It is further submitted that an issue in an appeal is that which if decided in favour of the plaintiff will give a right to the relief claimed, or would but for some other consideration in itself give a right to relief. If on the other hand, it is decided in favour of the defendant, will in itself be a defence. For this proposition, he cited the following authorities: AP Ltd V. Owodunni (1991) 8 NWLR (pt. 210) 391,410; Ugo V. Obiekwe (1989) 1 NWLR (pt. 99) 566, 581 and Fidelitas Shipping Co. Ltd V. V/O Exportchleb (1996) 1 Q.B. 630, 642. It is upon the argument advanced above that learned Senior Advocate has asked this Court to strike out question No. I raised for the appellant in the 5th defendant/appellant’s brief in its entirety.

As a number of cases have been referred to by the learned Senior Advocate on behalf of the appellant in support of his preliminary objection, I will now examine some of them to determine whether there is any merit in his objection to question No.1. But before doing so, it is necessary to re-state the complaint of the plaintiffs/respondents against the question. It seems to me manifest from the argument proffered that the complaint does appear to be that question No.1 as raised did not raise an issue but a mere question.

Now, what then could be described as a proper issue? Ugo V. Obiekwe (1989) 1 NWLR (pt. 99) 566, Nnaemeka-Agu, JSC borrowed gratefully the words of Buckley, LJ in Howell V. Dering & Ors (1915) 1 K.B. 54 at p.62 for the meaning of issue, which read thus: –

“The word can be used in more than one sense. It may be said that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is “in issue”, and which a jury has to decide is not necessarily “an issue” within ———— of the rule.”

Later in the same judgment, Buckley LJ also said:-

“An issue is that which, if decided in favor of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, it itself give a right to relief; and if decided in favor of the defendant will in itself be a defence”

His Lordship, Nnaemeka-Agu, JSC then applied this principle in that case when he said thus:-

“So it is in an appellate brief, mutates mutanda. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellant, if decided in favor of the appellant, will result in a verdict in his favor. Lord Diplock put it in Fidelitas Shipping Co. Ltd V. V/O Exportchleb (1966) 1 Q.B. 630 at p. 642 thus:-

‘But while an issue may thus involve a dispute above facts, a mere dispute about facts divorced from their legal consequences is not an issue.”

See also African Petroleum Ltd. V. Owodunni (1991) 8 NWLR (pt. 210) 391 at 410. It must therefore be accepted that for an appellant or cross-appellant to have either facts or point of law resolved in its favor, it is necessary to raise issue or issues in his brief to reflect properly what facts or law are in dispute in the appeal.

Having regard to what I have said above, and having also duly considered question No. 1 as posed in the appellant’s brief, it is my humble view that that “question” has not raised an issue for the determination of this appeal. It follows that I must uphold the preliminary objection raised against it by the learned Senior Advocate for the plaintiffs/respondents. Thus question No. 1 is therefore struck out from the appellant’s brief accordingly.

As issue (ii) (a & b) can stand by itself, as it is an “issue” properly raised, it will be considered with the other issues raised for the appellant.


SC.97/2003

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